Misfeasance in Public Office – Remedies for the Abuse of Public Power

8 weeks commencing 25 November 2019 (with a break over new year)

Background: The Growth of a Litigation Phenomenon

The growth of the administrative state and the exponential increase in public regulation through the latter part of the 20^th and early part of the 21^st Century has brought public officials ever more regularly into contact with private lives. Recent years appear to have seen a corresponding and dramatic increase in the number of private law tort actions seeking compensation for the harmful abuse of public power (misfeasance in public office), but little to no analysis has been done of the precise extent of the increase, the reasons for it, or the extent to which that litigation has ultimately proven successful in yielding compensation for those adversely affected.

One initial, working impression is that although litigation has greatly increased in volume, it is rarely successful. This poses important questions about why citizens litigate and why they so often fail in their actions for excesses of public power. Do they turn to the civil courts because other systems of public accountability are missing, or regarded as ineffective?  And why do so many persons who are injured by the actions of officials who have exceeded their statutory powers go uncompensated? What can, or should be done?

The Project- Data Collection, Analysis and Reform Proposals

The aim of this project is to produce a data-set that can be worked either into a peer-reviewed journal article, or into a long-term book project on public authority liability, that analyses the incidence and success rates of tort actions for misfeasance in public office in Australia, from the mid-20^th Century to the current day, which seeks explanations for the results and  which potentially posits suggestions for reform of the way in which harmful excesses of public power are dealt with in Australian law. 

The first stage in this project is to collect data using the Lexis Advance database on:

1. the number of cases in which misfeasance has been pleaded since 1950;
2. the number of cases in which actions have been struck out without going to trial;
3. the number of cases which have failed at trial; and
4. the number of cases that have succeeded at trial.

The second stage will be to dig deeper into datasets (2) and (3), so as to identify the most common reasons for the failure of private actions.

The third stage will be to identify and formulate measures that could be taken to better accommodate a proper balance between the maintenance of a fearless and efficient system of state regulation and the compensation of persons seriously harmed by excesses of public power.  

The Student will benefit by:

• Learning effectively to gather and analyse case data using the Lexis-Nexis legal research database system
• Learning how to present that data in both written and potentially oral format
• Working with an expert in the field of tort law to analyse complex areas of legal doctrine that bear upon key public issues about the limits and harmful effects of public power.  

The Student will be expected to:  

• Produce a tabular analysis of misfeasance caselaw, broken down into datasets 1,2, 3 and 4 above; determine the percentage increase in litigation since 1950, and the percentage of cases that have been struck out, or which have failed or succeeded at trial
• Produce a summary of the most common reasons for the failure of claims in categories (2) and (3).

 Outcomes

The data gathered will be used either to inform the writing of a peer-reviewed journal article on this topic, or to inform a much larger project that Professor Barker is currently embarking on, on public body liability.

Depending on the nature and extent of the student’s contribution, he or she will either receive due attribution for the work done by way of acknowledgment in any final publication, or may be invited to co-author outputs on the topic.  

Benefits to the School and Potential for RHD projects

• This project will assist Professor Barker in the Publication of a major monograph on Public Body Liability within the timeframe of the next REA.
• There is potential for RHD projects on associated topics.   

This project is open to students from years 3-4 with a strong interest and good results in private law (especially the law of torts) and/or administrative law. Familiarity with the Lexis Advance database is important. Some experience and prior success in completing extended research projects and in organising information through the use of tables and spreadsheets would be helpful, as an analytical/quasi-scientific approach to the data is going to be necessary, as well as some insight into its policy background.

Professor Kit Barker

Please contact Professor Barker if you are interested in undertaking this project and have further questions: k.barker@law.uq.edu.au