Misfeasance in Public Office: Some Unfinished Business

Misfeasance in public office is a unique tort. Only public officers can commit it, and only when they are abusing the public power or position. It requires malice in at least one individual within a department or public body, and it is not enough to prove gross incompetence, neglect, or breach of duty. Damage is the gist of the action and compensation is its function, but its rationale is strongly punitive. It has been more than five years since the last of the leading cases from Australia, New Zealand, England and Canada revived the tort, but those cases focused largely on setting the limits of the bad faith element. Many questions still remain. This article revisits the tort's emergence from the shadows, and then looks at some of the thorny questions that remain.