Tortious Misfeasance in Public Office – Raw Statistics from the Front Line

Zoom link:  https://uqz.zoom.us/j/96848672336

About the Talk

The tort of misfeasance is one of the law’s few ‘public law’ torts. It was resurrected from a moribund state in Australia in the 1950s  as a mechanism for compensating citizens for harm caused by public maladministration in the era of the modern administrative state.  It is sometimes also said to constitute a mechanism - rather like private prosecution - via which individuals can play a continuing modern role in maintaining public standards, vindicating public rights and holding government agents to account for the abuse of power. Many cases involve regulatory failure in relation to licencing and approval of economic activity, but they also feature deprivations of liberty, reputational and mental harm and even personal injury across areas as diverse as policing, public investigation, employment, taxation and welfare.     

A fascinating feature of the tort is that, although it is very rarely successful, there has been a recent explosion of litigation around it.  The question is, why? Why do plaintiffs continue to sue public officers in the face of almost certain failure? Who are these litigants and what is the context of their claims? Why do so many of their allegations continue to come to nought?  In this talk, we present some raw statistics from what we believe to be the first comprehensive analysis of all reported misfeasance cases decided in Australia since 1950. The study analyses cases across the time period by reference to litigation rates, success rates,  case types and plaintiff profile. We also present some preliminary thoughts as to why it may be that litigation is on the wax.  One thesis that is consistent with the study is that litigation rates reflect the harmful effects of increasingly intrusive regulatory power on individuals where public resourcing is short, where senses of personal grievance are strong and (connectedly) alternative sources of compensation for individuals are lacking. 

About the speakers

Katelyn Lamont is a final year Economics and Law (Hons) student and research assistant at the UQ Law School.

Kit Barker is the current Director of the Australian Centre of Private Law also at UQ Law.  Kit’s broad expertise spans torts and unjust enrichment, with a particular interest in private law theory, remedies and the interplay of public and private law.  He is an author of several key texts such as Unjust Enrichment (2^nd ed, Law Book) with Ross Grantham, The Law of Torts in Australia (5^th ed, OUP) with Peter Cane,  Mark Lunney and Francis Trindade, and Remedies: Commentary and Materials (Thomson Reuters) with Normann Witzleb, Elise Bant and Simone Degeling. Amongst his various co-edited books are Private Law and Power (Hart) and Private Law: Key Encounters with Public Law (CUP).