Neilson & Anor v City of Swan

(2006) 147 LGERA 136; [2006] WASCA 94

Western Australia Court of Appeal

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Catchwords

1. Tort
2. › Misfeasance in public office
3. › Elements of the tort
4. › Meaning of 'public office'
5. › Whether a local government authority is the holder of a public office
1. Tort
2. › Misfeasance in public office
3. › Elements of the tort
4. › Nature of defendant's conduct
5. › Whether tort can be constituted by omissions
6. › Requirements for omissions to constitute misfeasance
1. Tort
2. › Misfeasance in public office
3. › Elements of the tort
4. › State of mind of defendant
5. › Two forms of liability
6. › Targeted malice and knowing excess of power
7. › Reckless indifference
1. Tort
2. › Misfeasance in public office
3. › Elements of the tort
4. › Plaintiff's standing to sue
5. › Whether plaintiff must be member of class to whom public officer owes particular duty
6. › Distinction between breach of duty and abuse of power

Quick Take

A local government authority is at least arguably the holder of a public office for the purposes of the tort of misfeasance in public office. It is at least reasonably arguable that a plaintiff need not establish that the public officer owed a particular common law or statutory duty to the plaintiff. The principles of vicarious liability apply to the tort. A breach of duty may constitute an abuse of power if accompanied by dishonesty, malice or bad faith. For omissions to constitute misfeasance, the plaintiff must plead that the discretion could only be exercised one way, the official appreciated this but consciously decided not to act, and did so with intent to injure or knowledge of probable injury.