Northern Territory v Mengel

The respondents (who can conveniently be referred to as "the Mengels") purchased Banka Banka for approximately $3 million, financing its purchase with a bank loan. They intended to repay $1 million of that loan from the sale of cattle by the end of the 1988 season. However, they were not able to fully realise their selling plans and suffered loss because of action taken by two employees of the Northern Territory Department of Primary Industry and Fisheries (the Department), namely, Mr Baker, a stock inspector, and Mr Tabrett, Acting Chief Veterinary Officer and Chief Inspector of Stock for the Northern Territory (the Inspectors). It is now clear that there was no statutory or other authority for the acts of the Inspectors notwithstanding that they were furthering the aims of a government-sponsored campaign to eradicate bovine brucellosis and tuberculosis (the campaign).

The Mengels commenced proceedings in the Supreme Court of the Northern Territory claiming damages against the Northern Territory (the Territory) and, also, against the Inspectors. For the purposes of this appeal, the claim can be described as one based on the unauthorised acts of the Inspectors. This notwithstanding, the Territory accepts that, if there is any liability on the part of the Inspectors, it is vicariously liable to the Mengels. Presumably, the Territory takes the view that there was de facto authority for the acts in question [1] .

1. As to the significance of de facto authority, see James v The Commonwealth (1939) 62 CLR 339 at 359-360, per Dixon J.

Brucellosis is a disease which affects cattle and humans who come into contact with infected animals or their products. It was widespread throughout Australia in the 1970s and early 1980s but has now been eradicated. The Territory initiated its own campaign to eradicate the disease and this was followed, in the early 1980s, by a national campaign involving inter-governmental agreements between the Commonwealth, the States and the Territory. So far as the Territory is concerned, an agreement was made in 1984 by which the Commonwealth provided financial assistance and the Territory undertook a programme as therein specified for the eradication of bovine brucellosis and tuberculosis.

The agreement between the Commonwealth and the Territory envisaged the testing of all herds, and destocking where necessary. The primary method for testing an animal for brucellosis - at least in the Territory - was to analyse serum extracted from its blood. However, healthy animals could sometimes react positively to the test and, in cases of uncertainty, the general practice was to kill those that reacted (reactors) and to culture parts of their anatomy, a process which took approximately four weeks. The agreement envisaged that compensation would be paid for infected cattle and, perhaps, for cattle that had to be slaughtered for testing. It also envisaged that, at least in some circumstances, restrictions would be placed on the movement and sale of cattle that might be infected, but not that compensation would be paid in the event that loss was suffered as a result of those restrictions.

So far as the Territory is concerned, the campaign was carried out, in the main, by means of agreements (known as "approved programmes") between the Territory and individual property owners. It seems that most property owners willingly entered into approved programmes by which they agreed to have their herds tested and destocked and the Territory agreed to compensate them for infected animals and, perhaps, for healthy animals that had to be slaughtered for testing.

The campaign also had the backing of s 27 of the Stock Diseases Act 1954 (NT) (the Act), which authorised the classification of holdings in terms which are also found in the agreement with the Commonwealth [2] . It provided:

(1) The Chief Inspector may, by notice in writing to the owner of a holding, in relation to a prescribed disease, give the holding one of the following classifications:

(2) The Chief Inspector [3] may, for the purpose of controlling a prescribed disease, by notice in the Gazette, specify the restrictions which shall apply to and in relation to the movement in, or into, or the sale or purchase in, the Territory of stock, or a class of stock, and, for such purpose, the restrictions may be expressed to relate to the disease status of a holding.

(3) Without limiting the generality of subsection (2), the restrictions specified in a notice under that subsection may include -

(b) a total prohibition on the sale or purchase, of stock or a class of stock.

(4) A person shall not move, sell or purchase stock in contravention of the restrictions specified in a notice under subsection (2).

1. Section 5 defines "Chief Inspector" to mean the Chief Inspector of Stock. At all times relevant to this case, Mr Tabrett was the Chief Inspector.

Brucellosis and tuberculosis were prescribed diseases for the purposes of s 27. 1. Section 27 was inserted by the Stock Diseases Amendment Act 1983 (NT). 2. Section 5 defines "Chief Inspector" to mean the Chief Inspector of Stock. At all times relevant to this case, Mr Tabrett was the Chief Inspector.

A notice under s 27(2) of the Act was published in the Northern Territory Gazette on 31 August 1988 (the Gazette notice) which, so far as is presently relevant, was as follows:

Where cattle or buffalo are from herds with a disease status, in accordance with the national brucellosis and tuberculosis eradication campaign, of -

(a) infected, suspect, restricted or provisionally clear where herds subject to an eradication programme approved for the purposes of that campaign and are -

(i) spayed females or steers - no restrictions and no test required; or

(ii) entire cattle or buffalo - movement permitted for the purpose of immediate slaughter provided cattle or buffalo moved directly to an abattoir;

(b) tested negative, monitored negative, or confirmed free where herds not previously infected - no test required.

Neither the Act nor the approved programmes provided for payment of compensation in the event that a property owner suffered loss by reason of movement restrictions flowing from s 27(2) of the Act.

It remains to be noted that the Act conferred other powers which, although not specifically related to the campaign, might be used in an appropriate case. For example, s 42 (1)(l) conferred power on an inspector [4] to:

order the owner of land, on which are depastured any stock which the inspector has reasonable cause to believe are infected, to prevent any stock from entering or leaving such portion of the land as is specified by the inspector for such period, not exceeding 40 days, as the inspector specifies. And by s 42(1)(t) power was conferred on an inspector to "seize and detain any stock which have been driven or moved contrary to [the] Act" [5] . 1. Section 5 defines "inspector" to mean "a person appointed and holding office as an inspector of stock under this Act". At all times relevant to this case, Mr Baker was an inspector. 2. See s 42 generally for other powers of this kind.

The Mengels entered into a programme with respect to Neutral Junction, apparently in 1983 as part of the early campaign initiated by the Territory. It seems that this was treated as an approved programme for the purposes of the national campaign and, in February 1985, Neutral Junction was classified under s 27(1) of the Act as "tested negative" for both brucellosis and tuberculosis. Banka Banka was classified as "confirmed free" for both diseases sometime before its purchase by the Mengels in 1987. The Mengels did not enter into any programme for Banka Banka.

The terms of the programme entered by the Mengels in 1983 suggest that it may have been intended to operate until 1992. However, the programme did not specify any action that had to be taken after 1987. At one point in his judgment on the trial of this matter, Asche CJ appeared to be saying no more than that the evidence did not permit of a finding that there was an approved programme or, in terms of par (a) of the Gazette notice, "an eradication programme approved for the purposes of [the national] campaign" current for either of the Mengels' properties in September 1988. However, in other passages, his Honour seemed to assume that there were no approved programmes in existence at the time. He approached this issue on the basis that it was for the Territory and the Inspectors to establish that there was an approved programme current, rather than for the Mengels to establish that there was not. The justification for this approach is not apparent. In the Court of Appeal Priestley J proceeded on the basis that the Mengels' herds were not subject to an approved programme at the relevant time. Thus this aspect of the case is left in a somewhat unsatisfactory state. However, in the appellants' written submission to this Court it is said that, whereas the Inspectors believed that the imposition of movement restrictions was authorised, the herds "were not at the time "subject to an eradication programme approved for the purposes of the campaign" ". The matter must be dealt with accordingly.

There were dry conditions at Neutral Junction during the 1987/88 season and about 2,500 head of cattle were moved to Banka Banka. Conditions there were not entirely as hoped and some cattle had to be returned to Neutral Junction. In August or September 1988 the Mengels began a muster on both stations, intending to sell some 4,400 head of cattle. It was important for the sales to take place so that a payment could be made to the bank and, also, so that the lot of the remaining cattle could be alleviated in the prevailing dry conditions. They intended to sell some cattle to the abattoirs and some as breeders. They were hoping to get good prices by selling the breeders at Alice Springs for a southern market. This, they thought, could only be done if the cattle were tested and declared free of brucellosis. It has since emerged that testing was not required, at least if the cattle were sold in the Territory or in Queensland. On 3 September 1988, one of the Inspectors, Mr Baker, came and took blood samples from ninety-five heifers mustered at Neutral Junction and intended for sale as breeders. These heifers were among those agisted at Banka Banka and returned to Neutral Junction. The samples were sent to Alice Springs for testing. There was one positive reaction.

On 6 September, Mr Baker informed the Mengels of the results of the tests and also informed them that there were restrictions on the movement of their cattle from Neutral Junction and Banka Banka. It is not clear precisely what was said, but Mr Baker intended them to understand, as they did, that there were no restrictions on the movement of spayed females or steers but their breeder cattle could only be moved to an abattoir for immediate slaughter. They also understood, if not then within a day or two, that the restriction would apply until it was established that the reactor was not infected and that that would involve culture testing and would take approximately thirty days. And it is clear that they believed that failure to comply with the restriction would constitute an offence under the Act, although they did not concern themselves with its precise nature or, indeed, with the legal basis for the restriction.

The Inspectors did not think it likely that the reactor was infected. Moreover, they knew of the predicament facing the Mengels if they could not sell their cattle as planned. However, they were of the view that the Act or the approved programmes imposed restrictions once a reactor was found in a herd. In this regard, it seems that they assumed that the Mengels were party to a current approved programme. As earlier indicated, the Mengels entered into a programme for Neutral Junction in 1983, however the trial judge was not able to make a finding that there was an approved programme for either property current in September 1988. There is no doubt that, had there been an approved programme, the Inspectors would have been obliged to change the status of the cattle to "suspect" to comply with the campaign and, in that event, the cattle would have been subject to movement restrictions in accordance with par (a) of the Gazette notice.

The Mengels arranged for another blood sample to be taken from the reactor before it was taken away for culture testing and for that sample to be sent to Adelaide where a different test was in use. After discussing the matter with an officer of the Department, they arranged for other cattle to be tested by the Department in the hope that, if there was no further reaction, it would be accepted that the reactor was not, in fact, infected.

On or about 9 September, before the further tests were conducted, the regional veterinary officer, Mr Wilson, made an entry in the Department's computer records indicating that the status of the cattle at Neutral Junction and Banka Banka was "suspect". It is not clear whether the entry was made with s 27(2) in mind or simply for administrative purposes.

Further tests were conducted on 950 animals at Banka Banka on 11 and 13 September. There were twenty-two reactors. Again, it seems, the Inspectors did not think it likely that the animals were infected. However, they again informed the Mengels that their cattle were subject to the same movement restrictions. The Mengels arranged for further blood samples to be taken from the reactors and for those samples to be sent to Adelaide. However, they refused to hand the reactors over for culture testing until such time as the Department received the results from the culture testing of the first reactor.

By 26 September, a technical officer at the Alice Springs testing laboratory believed it unlikely that the cattle were infected but he wanted to make sure by culture testing. As a result, Mr Tabrett sent a facsimile message to Mr Baker which he, Mr Baker, passed on to the Mengels on or about 30 September and which stated that it was necessary to culture test thirteen of the cattle that had reacted positively to serum testing on 11 and 13 September. The message reiterated that the cattle were subject to movement restrictions - in fact, it said they were quarantined. By this time, the Mengels had been informed that the first sample that they had sent to Adelaide had tested negative and, for this and, perhaps, other reasons, they continued to refuse to hand over the reactors. They were eventually handed over to the Department on 25 October.

On or about 7 November the Mengels received information from Adelaide that, for practical purposes, brucellosis could be ruled out. A few days after this, the Department came to the same conclusion and, on 14 November, informed the Mengels that the movement restrictions were lifted.

It remains to be noted that, on several occasions prior to 14 November, the Mengels spoke to the Inspectors and, on 20 October, approached the Minister to see if something could be done to get them out of their predicament. Nothing came of their requests and they complied with the restrictions that had been communicated to them. Thus, they did not sell their breeder cattle as planned and, because of the dry conditions, they had to import feed and arrange for cattle to be agisted. And, to meet their obligations to the bank, they had to sell some of their steers earlier than planned.

The Mengels formulated their claim against the Inspectors and the Territory in several different ways, relying on various causes of action. At first instance, Asche CJ held that they were entitled to succeed on one and only one cause of action, namely, an action on the case based on the decision in Beaudesert Shire Council v Smith [6] . His Honour entered judgment for the Mengels in the sum of $305,371 plus interest, holding that they could not recover their losses in full because their refusal to hand over the reactors for culture testing amounted to a failure by them to mitigate the damage caused by the actions of the Inspectors. The Territory and the Inspectors appealed to the Northern Territory Court of Appeal and the Mengels cross-appealed. The appeal was dismissed and the cross-appeal allowed, but only on the question whether damages should have been reduced. The judgment was increased to $425,125 plus interest.

The Court of Appeal rejected an argument that Beaudesert should not be followed and held that the Mengels were entitled to succeed on an action on the case based on that decision. As well, Priestley J was of the view that they were entitled to succeed on an action on the case "very similar to that on which Beaudesert was based, but not confined to it" which, in his Honour's view, was recognised by Dixon J in James v The Commonwealth [7] . Angel J agreed generally with the judgment of Priestley J, and with his Honour's analysis of James v The Commonwealth, but expressed the view that liability rested on a broader consideration, namely, "the place of individual liberty of action within our society under the constitutional principle of the rule of law". Thomas J agreed with Angel J and with Priestley J.

In this Court, the appellants argue that Beaudesert was wrongly decided and that there is no cause of action of the kind described in that case. And they say there is no cause of action of the kind identified by Priestley J or of the kind identified by Angel J in the Court of Appeal. But if they are wrong on these matters, they argue that none of these causes of action is made out. They make no alternative complaint with respect to the decision of the Court of Appeal to increase damages.

For their part, the Mengels argue that they were entitled to succeed in their action, either because of the decision in Beaudesert or because of the separate causes of action identified by Priestley and Angel JJ in the Court of Appeal. They contend also that they were entitled to succeed on their claim for misfeasance in public office, the mental element of which is made out, they argue, if the public officer either knows or ought to know that he or she is acting without authority. This claim was rejected by the trial judge, and the Court of Appeal saw no reason to disturb that rejection. The Mengels do not contend that they were entitled to succeed on any of the other causes of action on which they relied at first instance although, in the course of argument, it was asserted that, if it were established that the Inspectors ought to have known that they were acting without authority, that would also entitle the Mengels to succeed in negligence.

It is now clear that the Inspectors were acting outside the scope of their authority when they informed the Mengels that their cattle were subject to movement restrictions. It is necessary to explain the findings that lead to this conclusion.

The appellants have never suggested any authority for the Inspectors' action other than the Gazette notice. In this regard, they claimed that par (a) of the notice imposed movement restrictions which the Inspectors communicated to the Mengels. They did not at any stage rely on s 42(1)(l) of the Act, which confers power to impose movement restrictions on cattle which a stock inspector has reasonable cause to believe are infected, apparently because the Inspectors did not think they were infected, or, at least, did not think that likely.

At first instance, Asche CJ construed par (a) as applying only to herds which were subject to an eradication programme, that is, in respect of which there was a current approved programme. As earlier indicated, his Honour held that, on the evidence, he could not find that there was an approved programme current for either of the Mengels' properties in September 1988 - hence, the finding that the Inspectors had no authority to impose movement restrictions. This finding exposes the error in what the parties thought had happened and in the basis on which the Mengels conducted their case at first instance, namely, that movement restrictions had been imposed by the Inspectors either directly under s 42(1)(l) of the Act or indirectly by changing the status of the Mengels' holdings or herds to "suspect".

The construction which Asche CJ placed on par (a) of the Gazette notice was confirmed by the Court of Appeal and the appellants now accept that it is correct. They also accept that the evidence did not enable his Honour to make a finding that there was an approved programme current at the relevant time. Thus, it is no longer in issue that the Inspectors were acting outside the scope of their authority.

It was said in the course of argument that there was no longer any issue with respect to the finding by Asche CJ that there was no malice on the part of the Inspectors. More precisely, his Honour found that the Inspectors neither knew that they lacked authority for their actions nor intended to harm the Mengels. As they were aware of the predicament which the Mengels faced if they could not sell their cattle as planned, this latter aspect of the finding is, perhaps, better expressed in terms of the Inspectors not being actuated by an intention to harm the Mengels.

The Mengels accept that the Inspectors did not have actual knowledge that they were acting outside the scope of their authority but they argue that the finding leaves open the question whether they had constructive knowledge in the sense that they should have known. And they say that constructive knowledge of that kind is sufficient, in the circumstances, to establish misfeasance in public office.

It was held in Beaudesert that "independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other" [8] . It was on the basis of this principle that Asche CJ found for the Mengels at first instance.

There are two problems in this case which arise out of the statement of principle in Beaudesert. The first concerns "unlawful act". Is it an act forbidden by law or, simply, an unauthorised act in the sense of an act that is ultra vires and void? An analysis of Beaudesert would suggest that it is the former. In that case, Mr Smith, who was licensed to pump water from a waterhole in a river, suffered damage when the defendant Council altered its flow by taking gravel from the river bed. There was a statutory prohibition on the taking of gravel except with a permit which the Council did not have. Thus, the act in question was one forbidden by law. Moreover, it was said in the Court's reasons for judgment that, if what the Council did was actionable at the suit of Mr Smith, "liability must depend upon the broad principle that the Council intentionally did some positive act forbidden by law which inevitably caused damage to Smith by preventing the continuing exercise of his rights as a licensee" [9] (emphasis added). And the cases in which the issue has since been considered have uniformly favoured the view that the Beaudesert principle applies only to acts forbidden by law [10] .

1. Beaudesert (1966) 120 CLR 145 at 152. 2. See, eg, Dunlop v Woollahra Municipal Council [1982] AC 158 at 170-171; Copyright Agency Ltd v Haines [1982] 1 NSWLR 182 at 195, per McLelland J.

The second difficulty relates to "inevitable consequence". As a matter of ordinary language, "inevitable" suggests something that is bound to happen, not merely something likely to happen in the ordinary course. It is convenient to observe at this point that that raises a question as to the relationship between inevitable consequence and foreseeability. It will not often be the case that something that is bound to happen will not also be foreseeable. Yet there is nothing in the facts of Beaudesert, at least so far as they appear in the Court's reasons for judgment, constituting a finding that it was foreseeable that the removal of the gravel would either alter the flow of the river or cause damage to those licensed to pump water from it.

It is not possible to discern from the facts of this case an act forbidden by law which caused harm to the Mengels. Nor is it easy to discern an unauthorised act. At first instance, Asche CJ proceeded on the basis that the act which caused harm was the unauthorised imposition of movement restrictions, but what happened was that the Inspectors told the Mengels that there were movement restrictions when, in fact and in law, there were none. That did not involve an act forbidden by law in any relevant sense. Nor did it require authority in a way justifying its description as "unauthorised".

In the Court of Appeal, Priestley J identified the unlawful act which caused harm as "purporting to change the status of the properties of persons" (presumably, by the making of the entry in the Department's computer records to the effect that the status of the Mengels' cattle was "suspect") combined with "directing people to do things where disobedience to the directions exposes the persons, if the directions are authorised, to personal penalty and the seizure of their property" which, in another part of his judgment, his Honour conveniently identified as "an implied threat of penalty". There are a number of difficulties in this approach. In the first place, the computer entry was made by Mr Wilson, the regional veterinary officer, and not by either of the Inspectors. Moreover, it is difficult to see how the "implied threat" to which Priestley J referred could be described as a "positive act" for the purposes of the Beaudesert principle. As well, it is far from clear that the making of the computer entry or the making of an implied threat of penalty requires authority in any way that would warrant either being described as "unauthorised". And even if they are properly described as "unauthorised", there is a further difficulty in the notion that they inevitably caused damage. Damage was suffered when the Mengels acted on the basis that their cattle were subject to the movement restrictions communicated to them and, even if it is assumed that that was likely to happen in the ordinary course, there is nothing to suggest that it was bound to happen.

Although it was argued for the appellants that there was no unlawful act on the part of the Inspectors or, alternatively, none that inevitably caused damage, the primary argument was that Beaudesert was wrongly decided. The statement of principle embodied in Beaudesert has been expressly rejected in the United Kingdom [11] and in New Zealand [12] and the decision has been widely criticised on the basis that it is neither supported by the authorities cited in the decision nor in harmony with the law relating to tortious liability as it was then or as it has since developed [13] .

1. See Lonrho Ltd v Shell Petroleum Co Ltd [No 2] [1982] AC 173 at 187-188, per Lord Diplock; RCA Corporation v Pollard [1983] Ch 135 at 154, per Oliver LJ. 2. See Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 at 339, per Richardson J; Van Camp Chocolates Ltd v Aulsebrooks Ltd [1984] 1 NZLR 354 at 359. 3. See, eg, Balkin and Davis, Law of Torts (1991), pp 682 et seq; Dworkin and Harari, "The Beaudesert Decision - Raising the Ghost of the Action upon the Case - Part 1", Australian Law Journal, vol 40 (1967) 296, at pp 304-306; Fleming, The Law of Torts, 8th ed (1992), pp 702-703; Fridman, "Interference with Trade or Business - Part I", Tort Law Review, vol 1 (1993) 19, at pp 34-38; Heydon, "The Future of the Economic Torts", University of Western Australia Law Review, vol 12 (1975) 1, at pp 16-17; Phegan, "Damages for Improper Exercise of Statutory Powers", Sydney Law Review, vol 9 (1980) 93, at pp 117-120; Evans, "Damages for Unlawful Administrative Action: The Remedy for Misfeasance in Public Office", International and Comparative Law Quarterly, vol 31 (1982) 640, at p 649.

This case aside, there is no reported case in which Beaudesert has been applied [14] . Prima facie, at least, if Beaudesert does proceed from or does involve an error of principle, it is appropriate for this Court either to reformulate the principle or to indicate that it is no longer good law. In this regard, it is sufficient to note that, apart from the fact that it was a unanimous decision and, perhaps, has not led to any great inconvenience, Beaudesert is a case which satisfies the criteria which determine whether this Court should review or depart from an earlier decision [15] .

1. In Munnings v Australian Government Solicitor (1994) 68 ALJR 169; 118 ALR 385, the plaintiff sought, inter alia, to invoke a Beaudesert action. However, Dawson J held that, even assuming that the actions of the defendants were unlawful, the plaintiff had suffered no damage and, hence, it was not necessary to decide whether Beaudesert applied (Munnings (1994) 68 ALJR 169 at 171-172; 118 ALR 385 at 389). 2. In John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-439, the criteria for the Court to review and depart from an earlier decision were set out by Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ. These are: 1. The earlier decision does not rest upon a principle carefully worked out in a significant succession of cases. 2. There is a difference between the reasons of the majority judges in the earlier decision. 3. The earlier decision has achieved no useful result, but has rather led to considerable inconvenience. 4. The earlier decision has not been acted on in a manner militating against its reconsideration. See also Queensland v The Commonwealth (the Second Territories Representation Case) (1977) 139 CLR 585.

It is clear that the principle stated in Beaudesert is one which had neither been formulated nor suggested in earlier cases. Of itself, that is of no particular significance. The common law consists of judicially formulated principles and, necessarily, there is always a first formulation. Moreover, the development of the common law proceeds on the basis of the identification and enunciation of principles that unify and explain earlier decisions. And that is what Beaudesert purported to do.

In Beaudesert, the Court referred to seven earlier cases and concluded that, although "[i]t [was] not possible to adopt a principle wide enough to afford protection in all circumstances of loss to one person flowing from a breach of the law by another", there was, nonetheless, "a solid body of authority which protects one persons's [sic] lawful activities from the deliberate, unlawful and positive acts of another" [16] . The seven earlier decisions to which reference was made do provide some general support for that proposition. However, the extent of the support depends, in large measure, on what is involved in the notion of "deliberate, unlawful and positive acts". It is clear that some of the cases involved acts which, although properly described as "deliberate, unlawful and positive", were intentional in the sense that they were directed against the plaintiff or the activity in which he was lawfully engaged and not merely intentional in the Beaudesert sense of an intentional act which inevitably caused harm. The position can conveniently be illustrated by reference to two of the cases referred to in Beaudesert, namely Garret v Taylor [17] and Tarleton v M'Gawley [18] .

1. Beaudesert (1966) 120 CLR 148 at 155. 2. (1620) Cro Jac 567 [ 79 ER 485]. 3. (1794) Peake 270 [ 170 ER 153].

In Garret v Taylor, as Beaudesert records, the plaintiff succeeded in an action for losing the benefit of his quarries when "the defendant threatened violence to the extent of committing an assault upon employees and customers of the plaintiff whereupon "they all desisted from buying, and the others from working" " [19] . However, the pleadings make it clear that the actions of the defendant were deliberate, not merely in the sense of being intentional, but in the sense of being directed against the plaintiff, it being asserted in the pleadings that the defendant engaged in the acts in question "to discredit and to deprive [the plaintiff] of the commodity of the said mine" [20]

1. Beaudesert (1966) 120 CLR 145 at 153. 2. Garret (1620) Cro Jac 567 [ 79 ER 485].

Similarly, it is clear that the acts considered in Tarleton v M'Gawley were deliberate in the sense of being purposely directed, if not at the plaintiff, at activities in which he was lawfully engaged. Again as Beaudesert records, it was held in that case "that an action on the case lay against the master of a vessel for purposely firing a cannon at negroes and thereby preventing them from trading with the plaintiff" [21] . It clearly appears from the report of that case that that was done purposely in the sense of "contriving and maliciously intending to hinder and deter [them] from trading" [22] .

1. Beaudesert (1966) 120 CLR 145 at 153. 2. Tarleton (1794) Peake 270 at 271 [ 170 ER 153 at 153].

Three other decisions referred to in Beaudesert also involved acts which, prima facie at least, would seem to have been directed against the plaintiff or against the activities in which he was lawfully engaged. In The Earl of Shrewsbury's Case [23] mention is made of a case in which the plaintiff was the Abbot of Evesham who "had a fair in S with all that belonged to a fair", and the defendant "with force and arms disturbed the people coming to the fair by which the plaintiff lost his toll" [24] . And in Carrington v Taylor [25] , the defendant disturbed an ancient decoy for wild fowl by firing near it, a fact situation very similar to that involved in Keeble v Hickeringill [26] . In that latter case, Holt CJ proceeded on a basis which clearly suggests that what was under consideration were acts directed against a plaintiff or against activities in which he was lawfully engaged. Thus, his Lordship said [27] "where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood; there an action lies in all cases."

1. (1610) 9 Co Rep 46b [77 ER 798]. 2. The Earl of Shrewsbury's Case (1610) 9 Co Rep 46b at 50b [77 ER 798 at 806]. The Court in Beaudesert (1966) 120 CLR at 152-153 does not make it clear that the case of the Abbot of Evesham's fair is not The Earl of Shrewsbury's Case, but an earlier case: (1355) YB 29 Edw III 18. 3. (1809) 11 East 571 [103 ER 1126]. 4. (1706) 11 East 574n [103 ER 1127]. 5. Keeble (1706) 11 East 574 at 576 [103 ER 1127 at 1128].

Reliance was placed on two other cases in Beaudesert, namely Mogul Steamship Co Ltd v McGregor, Gow & Co [28] and Whaley v Laing [29] . So far as Mogul Steamship is concerned, it is more accurate to say that reliance was placed on an assumption made in some of the judgments in that case. It was held in Mogul Steamship that there was no cause of action for economic loss occasioned by acts done pursuant to an agreement if the acts were done for a lawful object and did not involve unlawful means. It was said in Beaudesert that there was an assumption in some of the judgments in Mogul Steamship, especially those of Bowen LJ and Fry LJ [30] , that "had the acts of the defendants been unlawful - even in relation to third parties - and the economic loss to the plaintiffs sprung from such unlawful acts, the plaintiffs would have had their remedy" [31] . Given the decision in Mogul Steamship that the plaintiffs had no cause of action, it is difficult to regard an assumption that there would have been a cause of action in quite different circumstances as an authoritative statement of the law in that regard.

1. (1889) 23 QBD 598; on appeal [1892] AC 25. 2. (1857) 2 H & N 476 [157 ER 196]; on appeal (1858) 3 H & N 675 [157 ER 639]. 3. Mogul Steamship (1889) 23 QBD 598 at 614, 626 respectively. 4. Beaudesert (1966) 120 CLR 145 at 155.

In Whaley v Laing there is support in the judgment of the Court of Exchequer, and in those of Willes J and Crowder J in the Court of Exchequer Chamber, for the proposition that the defendant was liable to the plaintiff for damage occasioned to his boilers in consequence of the defendant's unlawful fouling of a canal from which the plaintiff had permission to feed his boilers [32] . There was, however, a divergence of opinion on this issue in the Exchequer Chamber where the bench was evenly divided [33] In these circumstances, the case is of limited authority.

1. Whaley v Laing (1857) 2 H & N 476 at 485-486 [157 ER 196 at 200-201]; on appeal (1858) 3 H & N 675 at 679-680 [157 ER 639 at 641]. 2. In the result, the judgment of the court below on this issue stood. See Laing v Whaley (1858) 3 H & N 901 [157 ER 733] and (1860) 5 H & N 480 [157 ER 1269].

The cases referred to in Beaudesert do not provide authoritative support for the wide principle there laid down: Mogul Steamship and Whaley v Laing are of limited authoritative value and the other cases are concerned, in the main, with acts directed against a plaintiff or the lawful activities in which he was engaged and not merely with intentional acts which inevitably caused harm.

Intentional and negligent infliction of harm in the law of torts

It is the intentional element of the cause of action described in Beaudesert that has given rise to most concern. More precisely, it is that the principle as formulated permits of liability notwithstanding that there is neither negligence nor an intention to inflict harm. So far as intention is concerned, the cause of action does not depend on an intention to harm the plaintiff, but on the doing of an act which is intentional and the inevitable consequence of which is to cause loss to the plaintiff [34] .

1. Kitano v The Commonwealth (1974) 129 CLR 151 at 174, per Mason J.

It will later be necessary to say something of the action for breach of statutory duty. But putting that action aside, the recent trend of legal development, here and in other common law countries, has been to the effect that liability in tort depends on either the intentional or the negligent infliction of harm. That is not a statement of law but a description of the general trend, the most recent example of which in this country is to be seen in Burnie Port Authority v General Jones Pty Ltd [35] . In that case it was held that, subject to one qualification, the special rule in Rylands v Fletcher [36] imposing strict liability for the escape of dangerous substances involved in the non-natural use of land had been absorbed in the general law of negligence. The qualification was that there might be cases in which "it is preferable to see a defendant's liability in a Rylands v Fletcher situation as lying in nuisance (or even trespass) and not in negligence" [37] .

1. (1994) 179 CLR 520. 2. (1868) LR 3 HL 330. See also Fletcher v Rylands (1866) LR 1 Ex 265. 3. Burnie (1994) 179 CLR 520 at 556, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.

Moreover, developments involving the so-called "economic torts" (which the cause of action described in Beaudesert is sometimes said to be [38] ) have largely proceeded on the basis that liability depends on the intentional infliction of harm. However, the "economic torts" emerged only in the second half of the last century [39] and, even now, the law in that regard is far from settled. The first development of significance was the recognition, in Lumley v Gye [40] , of the tort of intentional interference with contractual rights. Subsequent developments in the United Kingdom have, to some extent, impinged upon the intentional element of that tort. Liability does not depend on whether there is a predominant intention to injure [41] and it has been held that constructive knowledge of the terms of a contract is sufficient, so that a defendant may be liable if he or she recklessly disregards the means of ascertaining those terms [42] . But it is still accurate to describe the tort as one that depends on an intention to harm for that is necessarily involved if a person knowingly interferes with the enjoyment by another of a positive legal right, whether such knowledge is actual or constructive.

1. See, eg, Balkin and Davis, pp 625 et seq; Luntz and Hambly, Torts Cases and Commentary, 3rd ed (1992), pp 812 et seq; Morison and Sappideen, Torts Commentary and Materials, 8th ed (1993), pp 166 et seq. 2. Note, however, that the action per quod servitium amisit, the earliest record of which is in the printed reports of 1293, is sometimes classified as an economic tort. See Balkin and Davis, at p 673 et seq; Jones, " Per Quod Servitium Amisit ", Law Quarterly Review, vol 74 (1958) 39 at p 40, n 6. 3. (1853) 2 El & Bl 216 at 229-230, per Crompton J; at 233-234, per Erle J; at 238, per Wightman J [ 118 ER 749 at 754, 756, 757]. 4. See, eg, Lonrho Ltd v Fayed [1990] 2 QB 479 at 488-489, per Dillon LJ; at 491-492, per Ralph Gibson LJ; at 494, per Woolf LJ and the cases cited therein. 5. Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 at 700-701; [1966] 1 All ER 1013 at 1017, per Lord Denning MR.

Other early developments saw the recognition of the torts of intimidation and conspiracy, both of which require an intention to cause economic harm [43] . More recent developments in the United Kingdom suggest the emergence in that country of a tort of interference with trade or business interests by an unlawful act directed at the person injured, although not necessarily done for the purpose of injuring his or her interests [44] . It seems to be accepted that this embryonic or emerging tort does not extend to all unlawful acts and that, at least in that regard, it is in need of further definition [45] . So far as this emerging tort depends on an unlawful act, there is an obvious similarity with the cause of action recognised in Beaudesert. However, there is an obvious difference with respect to intention. The emerging tort requires that the unlawful act be directed at the person injured whereas there is no like requirement in Beaudesert.

1. As to intimidation, see Rookes v Barnard [1964] AC 1129; J T Stratford & Son Ltd v Lindley [1965] AC 269. As to conspiracy, see Quinn v Leathem [1901] AC 495; Williams v Hursey (1959) 103 CLR 30; McKernan v Fraser (1931) 46 CLR 343. 2. See Hadmor Productions Ltd v Hamilton [1983] 1 AC 191; Merkur Island Shipping Corp v Laughton [1983] 2 AC 570; Lonrho Ltd v Fayed [1990] 2 QB 479. See also the discussion in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 at 666-668; (1989) 95 ALR 211 at 244-246, per Brooking J. 3. See Balkin and Davis, pp 668-669; Lonrho Ltd v Fayed [1990] 2 QB 479 at 489, per Dillon LJ; at 492, per Ralph Gibson LJ.

The principle in Beaudesert, negligence and the action for breach of statutory duty

As earlier indicated, the decision in Beaudesert has been criticised as not in harmony with the law as it was when the decision was given and as it has since developed. Apart from the economic torts to which reference has already been made, it is sufficient to mention only the relationship between the cause of action described in Beaudesert and two others, namely, the action for negligence and the action for breach of statutory duty.

The Beaudesert principle allows, at least as a matter of legal theory, that there may be liability notwithstanding that, in the circumstances, the defendant is under no duty of care to avoid harm to the plaintiff. And liability does not depend on an intention to harm. There may be cases involving breach of a duty of care which fall within the Beaudesert principle but, to that extent, the principle serves no useful purpose. And if there is no duty of care, it is anomalous, to say the least, to hold a person liable for harm which is not intentional and which he or she is under no duty to avoid.

There is an obvious similarity between the cause of action recognised in Beaudesert and the action for breach of statutory duty which also allows that there may be liability regardless of negligence and regardless of intention to injure. But there is some difficulty in reconciling these causes of action by reason that there is no action for breach of statutory duty unless the legislation confers a right on the injured person to have the duty performed [46] . If no right is conferred, the general rule is that there is no liability in damages. The principle stated in Beaudesert runs counter to that rule, notwithstanding that the limitations on the action for damages for breach of statutory duty were expressly acknowledged in the decision in that matter [47] . It was that acknowledgment that led Mason J to conclude in Kitano v The Commonwealth, rightly in our view, that to succeed in an action on the case based on Beaudesert, a plaintiff "must show something over and above what would ground liability for breach of statutory duty if the action were available" [48] . Nothing in Beaudesert, apart perhaps from the inevitability of damage, suggests what that might be. And as has been seen, there are difficulties with inevitability as a legal concept, particularly its relationship with foreseeability.

1. See O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 477-478, per Dixon J; at 486-487, per Evatt and McTiernan JJ; Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 at 52-53, per Williams J; at 54, per Webb J; at 56, per Fullagar J; at 59-60, per Kitto J; at 68, per Taylor J; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 404-405, per Kitto J; Downs v Williams (1971) 126 CLR 61 at 74-75, per Windeyer J; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 482, per Brennan J; at 500, per Deane J; London Passenger Transport Board v Upson [1949] AC 155 at 168, per Lord Wright. 2. Beaudesert (1966) 120 CLR 145 at 151-152. 3. Kitano (1974) 129 CLR 151 at 175.

The lack of authoritative support for the principle stated in Beaudesert, the difficulties associated with the notions of "unlawful act" and "inevitable consequence", and the further difficulty of reconciling liability under that principle with the limitations upon liability for negligence and for breach of statutory duty and with the general trend of legal development confining liability to intentional or negligent infliction of harm compel the conclusion that Beaudesert should no longer be followed.

The Beaudesert principle should be overruled, not reformulated

Developments in the United Kingdom suggest the emergence in that country of tortious liability for harm caused by an unlawful act (more precisely, some unlawful acts) directed against a plaintiff. It may be that the cases referred to in Beaudesert support an approach which would lead to a similar result in this country. But that is not a matter that falls for consideration in this case. Rather, it was argued on behalf of the Mengels that the principle should be reformulated to impose liability for unlawful acts causing harm when harm is foreseeable and is, in fact, foreseen. Although there are no findings on the matter at first instance, it may be accepted that the harm suffered by the Mengels was both foreseeable and foreseen, given that the Inspectors knew of the predicament that the Mengels faced if they could not sell their cattle as planned.

The reformulation which was advanced on behalf of the Mengels suffers from the same critical defects as the Beaudesert principle. It is not supported by authority, it runs counter to the trend of legal development and, also, counter to the limitations which have been placed on liability for damages flowing from breach of statutory duty. Further, the reformulation serves no useful purpose in cases where there is a duty of care to avoid foreseeable harm and is anomalous in cases where there is not, at least if the plaintiff is not actuated by an intention to harm. Subject to the qualification that there may be cases in which there is liability for harm caused by unlawful acts directed against a plaintiff or the lawful activities in which he or she is engaged, the Beaudesert principle should be overruled.

It is convenient to consider misfeasance in public office before turning to the separate causes of action identified by Priestley and Angel JJ in the Court of Appeal, if only for the reason that the former is regarded as "well-established" [49] and any consideration of extended liability along the lines adopted in the Court of Appeal must depend, to some extent, on whether existing principle is unduly narrow.

1. Dunlop v Woollahra Municipal Council [1982] AC 158 at 172.

It was recognised as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined [50] . In important respects, that is still true. However, the weight of authority here [51] and in the United Kingdom [52] is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power. There are three cases which are sometimes said to support a wider liability. The first is Brasyer v Maclean [53] . That case was referred to by Smith J in Farrington v Thomson, which is generally regarded as one of the seminal cases on misfeasance in public office, in connection with the statement that "in some cases at least, it is sufficient that the act was a breach of his official duty, even though it is not shown either that he realised this or that he acted maliciously" [54] . Brasyer v Maclean involved a sheriff's false return of rescue upon a writ of capias ad respondendum and it may have been decided on the basis that the sheriff was to be taken as having the same knowledge as the bailiffs to whom he entrusted its execution. Whether or not that is so, the suggestion made in Farrington that Brasyer laid down a general rule extending liability beyond acts intended to cause harm or acts known to be beyond power, has been implicitly rejected in other cases [55] and explicitly rejected in Pemberton v Attorney-General (Tas) [56] . The other two cases which are sometimes said to support a wider liability [57] are Wood v Blair and Helmsley Rural District Council [58] and McGillivray v Kimber [59] . However, liability was admitted in the first case [60] and there was a strong suggestion that the public officers were motivated by malice in McGillivray v Kimber [61] .

1. Tampion v Anderson [1973] VR 715 at 720. 2. See, eg, Farrington v Thomson [1959] VR 286 at 293, per Smith J; Tampion v Anderson [1973] VR 715 at 720; Pemberton v Attorney-General (Tas) [1978] Tas SR 1 at 25-31, per Chambers J; Little v Law Institute of Victoria [1990] VR 257 at 269-270, per Kaye and Beach JJ. 3. See, eg, Dunlop v Woollahra Municipal Council [1982] AC 158 at 172; Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716 at 734-740, per Mann J; on appeal [1986] QB 741 at 775-777, per Oliver LJ; Jones v Swansea City Council [1990] 1 WLR 54 at 69; [1989] 3 All ER 162 at 173, per Slade LJ; Elguzouli-Daf v Commissioner of Police [1995] 2 QB 335 at 346-347, per Steyn LJ. 4. (1875) LR 6 PC 398. 5. Farrington [1959] VR 286 at 293. 6. See the cases cited in fnn 249 and 250. 7. [1978] Tas SR at 29, per Chambers J. 8. See, eg, McBride, "Damages as a Remedy for Unlawful Administrative Action", Cambridge Law Journal, vol 38 (1979) 323, at pp 328-331. 9. Brit J Admin Law, vol 2 (1957) 243. See also The Times, 3-5 July 1957. 10. (1915) 26 DLR 164. 11. Brit J Admin Law, vol 2 (1957) 243. In that case the Council conceded liability for misfeasance if damage were proved. 12. (1915) 52 SCR 146 at 153-154, per Idington J; at 172, per Duff J; at 173-174, per Anglin J; 26 DLR 164 at 168-169, 182, 183-184.

One aspect of misfeasance in public office that lacks precise definition is whether, assuming damage, it is sufficient to establish that the public officer knows that he or she is acting without authority or whether there is some additional requirement. For example, it was suggested in Bourgoin SA v Ministry of Agriculture, Fisheries and Food [62] that there is an additional requirement that damage be foreseeable, and it was said in Tampion v Anderson [63] that the plaintiff must be "the member of the public, or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of".

1. [1986] QB 716 at 740, per Mann J; on appeal [1986] QB 741 at 777, per Oliver LJ. 2. [1973] VR 715 at 720.

There is a statement in Farrington which might be thought to deny any requirement over and above knowledge that the act is beyond power. It was said in that case that "if a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance in a public office will lie against him at the suit of that person" [64] . However, there is no indication as to what is comprehended in the expression "an abuse of his office" and Smith J, whose decision it was, was a member of the Full Court which later stated in Tampion v Anderson that there was, additionally, a requirement that there be a duty to the plaintiff. Moreover, the act complained of in Farrington, namely, that of ordering the closure of a hotel, was one which, if complied with, would necessarily result in damage.

The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability [65] . And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton [66] , or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.

1. See James v The Commonwealth (1939) 62 CLR 339 at 359-360, per Dixon J. See also Racz v Home Office [1994] 2 AC 45 at 50-54, per Lord Jauncey of Tullichettle. 2. [1897] 2 QB 57.

It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.

If misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that, just as with the tort of inducing a breach of contract, misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power. However, that is not what was put in this case. The argument was that it is sufficient that the officer concerned ought to have known that he or she lacked power.

Once foreseeability is accepted as a requirement in cases based on actual knowledge, it follows that the argument that a public officer is liable for misfeasance if the officer ought to know that he or she lacks power is, for practical purposes, the same as saying that the officer is under a duty not to exceed his or her power if there is a risk of foreseeable harm. Indeed, so much was implicit in the statement of counsel for the Mengels that they were also entitled to succeed in negligence if the Inspectors were liable for misfeasance in public office by reason that they ought to have known that they were acting without authority.

If it were the case that governments and public officers were not liable in negligence, or that they were not subject to the same general principles that apply to individuals, there would be something to be said for extending misfeasance in public office to cover acts which a public officer ought to know are beyond his or her power and which involve a foreseeable risk of harm. But in this country governments and public officers are liable in negligence according to the same general principles that apply to individuals. And, in that context, the argument that misfeasance in public office should be reformulated to cover the case of a public officer who ought to know of his or her lack of power can be disposed of shortly. So far as unintended harm is concerned, the proposed reformulation suffers the same defect in relation to the law of negligence as does the principle in Beaudesert, namely, it serves no useful purpose if there is a duty of care to avoid the risk in question and is anomalous if there is not. And it serves no purpose if the public officer is actuated by an intention to harm the plaintiff for that constitutes misfeasance in public office whether or not the officer knows that he or she lacks authority [67] .

Given that the argument made on behalf of the Mengels with respect to misfeasance in public office extended to an assertion of their entitlement to succeed also in negligence, it is appropriate to note that it is not open to them to make a case in negligence based on the proposition that the Inspectors should have known that their actions were unauthorised. So far as the knowledge of the Inspectors is concerned, the critical information was not the terms of the Gazette notice or, even, the provisions of the Act, but whether there was an approved programme current in September 1988. To make good the assertion that the Inspectors should have known that there was not an approved programme, it is necessary for there to be a positive finding that there was no approved programme. The finding did not go that far. Rather, the ruling was that the evidence did not permit of the contrary finding though regard must be had to what we said earlier concerning the appellants' position on appeal.

The Mengels pleaded negligence both further to and in the alternative to the other claims made by them. The plea of negligence was that there was a duty of care on the part of the Territory and the Inspectors not to "purportedly restrict movement of cattle from either of the [Mengels'] said properties without first ensuring that a reactor beast was subsequently confirmed positive by irrefutable and unmistakable scientific process, and in any event without first ensuring that there was a real possibility that any remaining cattle or class of cattle at Neutral Junction intended for immediate sale were infected with Brucellosis".

The trial judge expressed the view that the question reduced itself to whether the Inspectors acted with reasonable care. He concluded: "In my view and as a question of fact they were not in breach of such duty."

By their notice of contention in the Court of Appeal, the Mengels contended that "[h]is Honour erred in finding that the Appellants did not act unreasonably". Notwithstanding this, the issue of negligence was not contested in the Court of Appeal, but was raised again by the notice of contention in this Court. In the course of argument, counsel for the Mengels conceded that "negligence as such" was not an issue, but referred to his submission that, for the purposes of the tort of misfeasance in public office, constructive knowledge of lack of authority was sufficient - that is, it is sufficient that a defendant ought to have known that he or she was acting without authority. The issue raised by an allegation of constructive knowledge was, he suggested, the same issue as might be raised by a plea of negligence, but as we understood the argument, that issue was raised in the context of misfeasance in public office and not in the context of negligence.

The submission having been rejected that constructive knowledge of lack of authority is sufficient knowledge to constitute the tort of misfeasance in public office, that issue disappears. Having regard to the rejection by the trial judge of negligence as pleaded by the Mengels and their failure to pursue that matter on appeal, the Mengels cannot now succeed upon the ground that the trial judge erred in finding that the Inspectors were not negligent.

The cause of action discussed in James v The Commonwealth

In the Court of Appeal, Priestley J considered various remarks made by Dixon J in James v The Commonwealth [68] and, on the basis of those remarks, formulated a cause of action in these terms:

a plaintiff has an action on the case for damage suffered because in face of an express or implied threat by governmental authority of unlawful interference with the plaintiff's property or of unlawful prosecution of the plaintiff, the plaintiff has felt compelled to refrain, and has refrained, to the plaintiff's loss, from dealing with the plaintiff's goods. 1. (1939) 62 CLR 339.

In James v The Commonwealth, the plaintiff claimed damages on two separate grounds. The first was that the Commonwealth or its officers had induced common carriers to commit a breach of their duty to carry produce which he, the plaintiff, wished to sell, thereby causing him loss [69] . That is a claim analogous to that considered in Lumley v Gye [70] and it was determined by reference to the same principles that determine liability for procuring a breach of contract [71] . Clearly, what was said on that aspect of the claim can have no direct bearing on this case. However, there are some passages which have an indirect bearing, to which it will later be necessary to refer.

1. James (1939) 62 CLR 339 at 367, per Dixon J. 2. (1853) 2 El & Bl 216 [118 ER 749]. 3. James v The Commonwealth (1939) 62 CLR 339 at 370, per Dixon J. See also Lumley v Gye (1853) 2 El & Bl 216 at 231-232 [118 ER 749 at 755], per Erle J.

The second basis of the claim in James v The Commonwealth was that the Commonwealth or its officers compelled the plaintiff to discontinue his trade by unlawful threats that his goods would be seized. In relation to this claim, Dixon J [72] adopted the statement in Salmond's Law of Torts [73] that:

Although there seems to be no authority on the point, it cannot be doubted that it is an actionable wrong intentionally to compel a person, by means of a threat of an illegal act, to do some act whereby loss accrues to him: for example, an action will doubtless lie at the suit of a trader who has been compelled to discontinue his business by means of threats of personal violence made against him by the defendant with that intention. His Honour approached this aspect of the claim on the basis that, as goods had been seized on earlier occasions, it might be supposed that the Commonwealth had "manifested an intention of seizing the plaintiff's goods if he shipped them" [74] . In the result, however, he found against the plaintiff because he "in fact was not influenced by the fear of seizure and it was not the threats supposed that operated to restrain his trading" [75] . Thus, his Honour had no need to consider, and did not consider, the intentional element of the tort which was clearly recognised in the statement of principle which he adopted. 1. James (1939) 62 CLR 339 at 374. 2. Stallybrass, Salmond's Law of Torts, 9th ed (1936), p 633. See also Heuston and Buckley, Salmond and Heuston on the Law of Torts, 20th ed (1992), p 371. 3. James (1939) 62 CLR 339 at 374. 4. James (1939) 62 CLR 339 at 374.

The cause of action identified by Priestley J involves no intentional element and, to that extent, is clearly contrary to the principle adopted by Dixon J in James v The Commonwealth. There are also difficulties associated with the notion of liability for an "unlawful prosecution" if that extends beyond malicious prosecution or abuse of process. Moreover, there is implicit in the principle espoused by Priestley J an assumption that the assertion that certain legal consequences will attend a course of action amounts to a threat for the purposes of the principle stated in Salmond's Law of Torts. That assumption cannot be maintained in the face of what was said by Dixon J in relation to the first aspect of the claim considered in James v The Commonwealth.

In discussing the claim that Commonwealth officers had induced breaches of the obligations of common carriers, Dixon J noted that "inducement [was] to be distinguished from advice or persuasion" [76] . In that context, his Honour observed that what had occurred in that case was "an appeal to the law as it was conceived to exist" with "[t]he threat or inducement consist[ing] in a tacit or implied intimation that the claims of the Government might be enforced by resort to legal process" [77] . His Honour went on to state that, in his opinion [78] :

it would be an extension of the principle upon which the procurement of breach of duty is made a tort to hold that it covers a mistaken assertion on the part of the Executive Government or its officers that under the law, as they understood it, it is the third party's duty to refrain from compliance with the obligation upon which the plaintiff insists. 1. James (1939) 62 CLR 339 at 371. 2. James (1939) 62 CLR 339 at 372. 3. James (1939) 62 CLR 339 at 372-373.

The considerations that led Dixon J to conclude in James v The Commonwealth that the "intimation that the claims of the Government might be enforced by resort to legal process" [79] did not amount to procurement or inducement also lead to the conclusion that the mistaken assertion by government officers that, as a matter of law, certain consequences will or might attend a particular course of action does not constitute a threat for the purposes of the principle stated in Salmond's Law of Torts and adopted by Dixon J. At least that is so if the assertion is made bona fide. And it is clear from the written submissions of the parties and the arguments of counsel before this Court that the Mengels did not advance at trial a cause of action based on any threat by the Inspectors to seize the Mengels' cattle nor was there evidence to support any claim based on a threat in relation to the movement restrictions.

James v The Commonwealth provides no support for the cause of action described by Priestley J in the Court of Appeal. Nor is there any other principled basis for its recognition. So far as individual government employees are concerned, it would extend personal liability beyond misfeasance in public office or, even, negligence and, in effect, impose liability for an error of judgment. That result is supported by neither policy nor principle. Moreover and of more significance, it would give rise to the same difficulty as does Beaudesert in relation to negligence: if there is a duty of care on the part of government or the individual employee to avoid the harm suffered, it serves no useful purpose; and if there is not, it is anomalous to impose liability for unintended harm that there is no duty to avoid. Thus, the Mengels are not entitled to succeed on the alternative basis formulated by Priestley J in the Court of Appeal.

It should be mentioned, for the sake of completeness, that it was not argued in this Court that the Mengels were entitled to succeed on the actual cause of action identified in Salmond's Law of Torts and acknowledged by Dixon J in James v The Commonwealth, doubtless because of the finding by Asche CJ that the Inspectors did not intend to cause them harm.

Liability based on the constitutional principle of the rule of law

Angel J was of the view that, in this case, liability attached to the Inspectors and the Territory as "a consequence of the constitutional principle of the rule of law rather than any private tort". His Honour expressed the view that, if harm results, there is liability for unauthorised acts of governments and government officers or, perhaps, some unauthorised acts which prevent the individual from doing what he or she would otherwise be free to do, unless excluded by a statutory provision of the kind discussed in Little v The Commonwealth [80] and Board of Fire Commissioners (NSW) v Ardouin [81] . It is not entirely clear, but it seems that his Honour may have considered that liability attaches only to acts calculated to cause harm for he described the loss suffered by the Mengels as "foreseeable and foreseen" and spoke of the Inspectors' intention to prevent the movement of their cattle even though "they did not injure the plaintiffs out of spite".

It can at once be said that the principle espoused by Angel J is not supported by authority. Nor is it supported by principle. Indeed it may well be contrary to statute to assign liability to governments and their officers on a basis not applicable to private individuals [82] .

1. Note that s 64 of the Judiciary Act 1903 (Cth) provides that in matters of federal jurisdiction "[i]n any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same as in a suit between subject and subject". There are similar provisions in all Australian jurisdictions except Western Australia. The position in the Northern Territory is governed by s 5(1)(a) of the Crown Proceedings Act 1993 (NT) which provides that "the same procedural and substantive law applies to proceedings by or against the Crown as in proceedings between subjects". Before 1994, the position in the Territory was governed by s 7 of the Claims by and against the Government Act 1978 (NT) which made similar provision.

Governments and public officers are liable for their negligent acts in accordance with the same general principles that apply to private individuals and, thus, there may be circumstances, perhaps very many circumstances, where there is a duty of care on governments to avoid foreseeable harm by taking steps to ensure that their officers and employees know and observe the limits of their power. And if the circumstances give rise to a duty of care of that kind, they will usually also give rise to a duty on the part of the officer or employee concerned to ascertain the limits of his or her power. In these circumstances, the basis of liability identified by Angel J in the Court of Appeal encounters difficulties of much the same kind as those which attend the cause of action recognised by Priestley J. So far as acts involving the intentional infliction of harm are concerned, the personal liability of public officers is covered by misfeasance in public office and there is no principled basis either for its extension or for imposing liability on government if there is neither de facto authority nor a duty of care to ensure that the officer observes the limits of power. In other cases, if there is a duty of care to avoid the harm in question, the principle serves no useful purpose; and if there is not, it would be anomalous to hold either the government or the officer concerned liable for harm that there is no duty to avoid.

The appeal should be allowed and the orders of the Court of Appeal of the Northern Territory, other than those relating to costs, be set aside. In lieu thereof, the appeal to that Court should be allowed, the cross-appeal dismissed and the orders of Asche CJ, other than those relating to costs, be set aside and a verdict entered for the defendants. Given the issues in the appeal, no order should be made disturbing the orders for costs below. In accordance with statements made by counsel at the commencement of the hearing, no order should be made as to the costs of this appeal.

The facts found by Asche CJ at the trial of this action show that the restrictions on movement of the plaintiffs' (respondents') stock which were observed in obedience to the directions given by Messrs Baker and Tabrett (the Inspectors) caused the plaintiffs financial loss and that the Inspectors knew that the giving of those directions would cause such a loss. Neither Inspector had statutory power or authority to give the directions which he gave [83] . On the other hand, neither Inspector was actuated by a desire to inflict injury on the plaintiffs. Nor was either Inspector found to have given directions otherwise than in good faith, believing that he was empowered to give the directions and that it was his official duty in the circumstances to do so.

1. It may be that the findings do not go so far as to reach a positive conclusion that there was no power, but I shall assume against the appellants that the finding was as I have stated it above.

On these findings, was the plaintiffs' loss compensable as damages for a tort? It is not sufficient for a plaintiff to show merely that he has suffered a loss that was caused by the defendant's conduct. The conduct must infringe an interest which the common law protects and the conduct must be of a character which the common law treats as wrongful. However, these twin requirements do little to define tortious liability. Interests which are protected by the law of torts against some kinds of conduct are not protected against others (for example, privacy is protected against trespass but not against overseeing from an adjacent vantage point [84] ). The loss suffered by a plaintiff must consist of an affection of an interest for which the law governing a particular tort provides compensation (for example, loss of reputation caused by defamatory statements, physical damage caused by negligence). And the sense in which conduct is characterised as wrongful is merely that damages (not being damages for breach of contract) will be awarded for an infringement of particular kinds of interest caused by the particular kind of conduct. However, Dr Lushington said in delivering the opinion of the Privy Council in Rogers v Rajendro Dutt [85] :

it is essential to an action in tort that the act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interests, is not enough. That necessarily leaves the elements of legal right or interest and wrongful conduct to be defined by the laws governing the several torts. In this case, the relevant loss is pure economic loss. There are several categories of conduct which are wrongful when they cause economic loss. The critical question in the present case is whether the Inspectors' conduct to which the plaintiffs' economic loss can be causally attributed falls within any of the categories which the law of torts treats as wrongful in the relevant sense. 1. Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. 2. (1860) 13 Moo PC 209 at 241 [15 ER 78 at 90].

The various causes of action on which the plaintiffs sought to rely are examined in the reasons for judgment of the majority of the Court. I am in general agreement with their Honours that the facts do not bring the case within any of the principles which define tortious liability. In particular, the case does not fall within the criteria of liability stated in Beaudesert Shire Council v Smith [86] as interpreted in Kitano v The Commonwealth [87] . I agree also that Beaudesert should be overruled, though it is supportable by old authority as Deane J has demonstrated. But there is one aspect of this case on which I would state my own reasons for coming to the same conclusion as that at which their Honours have arrived.

1. (1966) 120 CLR 145. 2. (1974) 129 CLR 151 at 173-175.

The tort of misfeasance in public office is well established [88] . Less clearly established are the principles which define the liability imposed on a public officer who, by use of his position or power [89] , causes loss to another. The starting point is to identify the class of public officers. Best CJ identified the class in these terms in Henly v Mayor of Lyme [90] :

Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that, is an injury to an individual, an action may be maintained against such public officer. The instances of this are so numerous, that it would be a waste of time to refer to them.

Then, what constitutes a public officer? In my opinion, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer.

It seems to me that all these cases establish the principle, that if a man takes a reward, - whatever be the nature of that reward, whether it be in money from the crown, whether it be in land from the crown, whether it be in lands or money from any individual, - for the discharge of a public duty, that instant he becomes a public officer; and if by any act of negligence or any act of abuse in his office, any individual sustains an injury, that individual is entitled to redress in a civil action.

1. Dunlop v Woollahra Municipal Council [1982] AC 158 at 172. 2. cf Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240: "an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office he holds." 3. (1828) 5 Bing 91 at 107-108 [130 ER 995 at 1001]; see also R v Boston (1923) 33 CLR 386 at 412.

The tort is not limited to an abuse of office by exercise of a statutory power. Henly v Mayor of Lyme was not a case arising from an impugned exercise of a statutory power. It arose from an alleged failure to maintain a sea wall or bank, the maintenance of which was a condition of the grant to the corporation of Lyme of the sea wall or bank and the appurtenant right to tolls. Any act or omission done or made by a public official in purported performance of the functions of the office can found an action for misfeasance in public office. Public officers perform a great variety of functions some of which have a judicial element in them. We can put aside the cases which have a judicial element [91] , as the directions which the Inspectors gave in this case were wholly administrative.

1. See Fitzgerald v Boyle (1861) 1 QSCR 19; Sirros v Moore [1975] QB 118; Moll v Butler (1985) 4 NSWLR 231; Rajski v Powell (1987) 11 NSWLR 522.

A number of elements must combine to make a purported exercise of administrative power wrongful. The first is that the purported exercise of power must be invalid, either because there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action. There can be no tortious liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss - or even an intended loss - but, if the exercise of the power is valid, the other's loss is authorised by the law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects. However, a purported exercise of power is not necessarily wrongful because it is ultra vires. The history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of power when the act is ultra vires.

The further requirement relates to the state of mind of the public officer when the relevant act is done or the omission is made. An early case is Ashby v White [92] , in which Ashby complained that the constables of the borough in which an election was held had refused to permit him to vote "fraudulently and maliciously intending to damnify him" [93] . Lord Holt CJ, whose judgment ultimately prevailed in the House of Lords, held that malice was essential to the action [94] . Malice has been understood to mean an intention to injure [95] . In this context, the "injury" intended must be something which the plaintiff would not or might not have suffered if the power available to the public officer had been validly exercised. (It is in that sense that I use the term "injury" hereafter.) In more recent times, the scope of the tort has not been limited to cases in which a public officer has acted maliciously [96] . It has now been accepted that if a public officer engages in conduct in purported exercise of a power but with actual knowledge that there is no power to engage in that conduct, the conduct may amount to an abuse of office [97] . Thus Mann J said in Bourgoin SA v Minister of Agriculture, Fisheries and Food [98] :

I do not read any of the decisions to which I have been referred as precluding the commission of the tort of misfeasance in public office where the officer actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does. I read the judgment in Dunlop v Woollahra Municipal Council in the sense that malice and knowledge are alternatives. 1. (1703) 2 Ld Raym 938; 3 Ld Raym 320 [92 ER 126; 710]. 2. Ashby (1703) 3 Ld Raym 320 at 323 [92 ER 710 at 712]. 3. Lord Holt's judgment in Lord Raymond's Reports contains no reference to malice but the report is "very imperfect". The view that Lord Holt had not regarded the pleading of malice as essential was mistaken: see Smith's Leading Cases, 13th ed (1929), pp 283-284; Tozer v Child (1857) 7 El & Bl 377 at 382 [119 ER 1286 at 1288-1289]. 4. Farrington v Thomson [1959] VR 286 at 293. 5. See Brasyer v Maclean (1875) LR 6 PC 398 at 406, but quaere as to the mental element that their Lordships had in mind in holding that liability was established by the "mere fact of the misfeasance": see Farrington v Thomson. 6. Farrington; Dunlop v Woollahra Municipal Council [1982] AC 158 at 172; Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716 at 740, 777; Little v Law Institute of Victoria [1990] VR 257 at 270; R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 at 100. 7. [1986] QB 716 at 740; and see at 777.

I respectfully agree that the mental element is satisfied either by malice (in the sense stated) or by knowledge. That is to say, the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged - whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury. In my opinion, there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty [99] , though the position of the plaintiff may be relevant to the validity of the public officer's conduct. For example, the officer's administrative act may be invalid because he or she did not treat the plaintiff with procedural fairness. It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.

The plaintiffs submit that the requisite elements of the cause of action are satisfied by "constructive knowledge" of the absence of power to engage in particular conduct and foreseeability of the injury suffered by the plaintiff. This submission carries concepts familiar in the law of negligence into the tort of misfeasance in public office to which, in my opinion, those concepts are foreign. A public officer is appointed to his or her office in order to perform functions in the public interest. If liability were imposed upon public officers who, though honestly assuming the availability of powers to perform their functions, were found to fall short of curial standards of reasonable care in ascertaining the existence of those powers, there would be a chilling effect on the performance of their functions by public officers. The avoidance of damage to persons who might be affected by the exercise of the authority or powers of the office rather than the advancing of the public interest would be the focus of concern. Foreseeability of damage to another by one's own conduct is the factor which warrants the imposition of a duty of care to the other when engaging in the conduct. But the tort of misfeasance in public office is not concerned with the imposition of duties of care. It is concerned with conduct which is properly to be characterised as an abuse of office and with the results of that conduct. Causation of damage is relevant; foreseeability of damage is not.

Different considerations apply when a tort other than misfeasance in public office is relied on as a source of liability. Public officers, like all other subjects, are liable for conduct that amounts to a tort unless their conduct is authorised, justified or excused by statute. A statute is not construed as authorising, justifying or excusing tortious conduct unless it so provides expressly or by necessary intendment. In particular, a statute which confers a power is not construed as authorising negligence in the exercise of the power. Thus liability may be imposed on a public officer under the ordinary principles of negligence where, by reason of negligence in the officer's attempted exercise of a power, statutory immunity that would otherwise protect the officer is lost [100] . But there is an obvious difference between the malice, knowledge or reckless indifference as to the existence of a power that is an element in the tort of misfeasance in public office and negligence in the exercise of a power which precludes a plea of statutory authority to engage in the conduct complained of.

1. Benning v Wong (1969) 122 CLR 249 at 256; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 458, 484.

A distinction must therefore be drawn between an absence of reasonable care in ascertaining whether a power is available for exercise and an absence of reasonable care in exercising an available power. Error by a public officer in the ascertainment of available power may found a misfeasance action, if at all, only if the public officer knew that there was no power [101] or was recklessly indifferent as to the existence of the power to engage in the conduct which caused the plaintiff's loss. In O'Connor v Isaacs [102] Diplock J said:

If A, acting in perfectly good faith, orders B to do something, which order both A and B erroneously think A is entitled to give, and B does it, I know of no principle which makes A liable for any damage suffered by B as a result of doing it. It seems to me that it is damnum absque injuria. If a policeman, who has a limited authority, orders me to cross the road in circumstances where he has no right to do so, and I do so, and as a result of that I suffer damage, both of us erroneously thinking that he is entitled to give such an order to me, I cannot see any principle on which I should be entitled to recover from the policeman the damage which I have suffered as a result of our mutual mistake of law. Now, if A does it maliciously, then it may well be that an action will lie, whether or not he has got the authority to give the order, although in Gelen v Hall [103] the court left open the question whether an action would lie. That case related to a judicial order made by justices, not to a purported exercise of a purely administrative power. Nonetheless, the reference by Diplock J to the policeman's order shows that his Lordship's dictum was intended to apply to a purported exercise of administrative as well as judicial power. 1. See Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 at 39. 2. [1956] 2 QB 288 at 313. 3. (1857) 2 H & N 379 [157 ER 157].

Where a public officer takes action that causes loss to a plaintiff - in the present case, by giving directions - and the sole irregularity consists of an error as to the extent of the power available to support the action, liability depends upon the officer's having one of the states of mind that is an element in the tort of misfeasance in public office. That element defines the legal balance between the officer's duty to ascertain the functions of the office which it is his or her duty to perform and the freedom of the individual from unauthorised interference with interests which the law protects. The balance that is struck is not to be undermined by applying a different standard of liability - namely, liability in negligence - where a plaintiff's loss is purely economic and the loss is attributable solely to a public officer's failure to appreciate the absence of power required to authorise the act or omission which caused the loss [104] . The law does not speak with a forked tongue when dealing with the limit of liability of a public officer. It is unnecessary now to consider whether additional factors (eg, express representation of authority or known reliance on authority) may attract liability to a public officer under the law governing the tort of negligence. But the only question in this case is whether the elements of the tort of misfeasance in public office have been established.

1. cf Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 esp at 68; but see Rowling v Takaro Properties Ltd [1988] AC 473 at 511-512.

The findings in the present case go no further than establishing that the directions were given without power. Perhaps they do not go that far. In any event, there was no finding that the Inspectors were acting otherwise than in good faith; nor was there a finding either that they knew they had no power to give the relevant directions or that they were recklessly indifferent to the availability of that power. In the absence of such findings, the Inspectors' giving of directions to the plaintiffs cannot be held to have been wrongful. Misfeasance in public office was not established. At base, the plaintiffs' claim against the appellants rests on the assertion that the Inspectors had no power to give the directions which they gave. In the absence of a finding that the Inspectors knew they had no such power or were recklessly indifferent to their having such power, the plaintiffs had no case. The appellants were not liable as for any other tort where the damage consisted of pure economic loss. There was no basis on which negligence could have been sheeted home to the appellants. Had there been any act of trespass to the plaintiffs' cattle, the Inspectors may well have been liable accordingly, but not for the tort of misfeasance in public office.

The appeal must be allowed, the order of the Full Court set aside and in lieu thereof the appeal to the Full Court allowed, the judgment of Asche CJ set aside and in lieu thereof the plaintiffs' claim be dismissed.

The appellants are the Northern Territory of Australia (the Territory) and two of its stock inspectors, Mr Tabrett and Mr Baker. They seek to overturn a verdict [105] entered against them by the learned trial judge (Asche CJ) and, subject to an increase in the amount of damages [106] , confirmed by the Territory Court of Appeal (Angel, Thomas and Priestley JJ). The respondents are a husband and wife, Mr Arthur Mengel and Mrs Caroline Mengel, and members of their family. I shall, somewhat inaccurately, refer to them as "the Mengels". They were the successful plaintiffs in the Supreme Court. At relevant times, they carried on a cattle breeding business on two stations in the Territory.

1. For $305,371. 2. To $557,611 (being $425,125 plus interest).

The detailed background facts and the various grounds upon which the Mengels seek to maintain their verdict are set out in the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ. Before turning to a consideration of those grounds, it is appropriate that I acknowledge the assistance which I have derived from the analysis of principle and relevant cases contained in the judgments below and in the written and oral submissions of counsel for the parties and interveners in this Court.

Both the learned trial judge and the members of the Court of Appeal were bound to accept and apply the "proposition" formulated in the joint judgment of Taylor, Menzies and Owen JJ in Beaudesert Shire Council v Smith [107] . The trial judge found, and the members of the Court of Appeal agreed, that the present case satisfied the requirements of the cause of action identified in that proposition. In this Court, the appellants argue that the Beaudesert proposition should be overruled and the independent cause of action which it identified should be disowned. Alternatively, it is submitted that the requirements of that cause of action were not satisfied in the present case. It is convenient to consider the latter submission first.

The cause of action identified in Beaudesert was said to arise, "independently of trespass, negligence or nuisance", when "a person suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another" [108] . It has been subjected to much adverse criticism, partly on the ground that the formulation of it invites questions about the meaning and scope of at least one of the phrases and three of the words which it employs, namely: "inevitable consequence;" "unlawful"; "intentional"; and "positive".

In the present case, on the findings of the trial judge, the Mengels sustained financial loss when, believing an assertion that their two stations were under quarantine, they accepted and complied with instructions given to them by Mr Baker and (indirectly) Mr Tabrett to the effect that their breeding cattle could not lawfully be moved otherwise than directly to an abattoir for the purpose of immediate slaughter. One can speculate that, if either Mr Tabrett or Mr Baker had appreciated that he lacked authority to give those instructions for the reason that there was neither a relevant approved "eradication programme" nor any applicable restriction on the movement of the Mengels' breeding cattle, the lack of authority or restriction would have been promptly rectified by an exercise of the powers conferred upon the Territory's Chief Inspector of Stock by s 27(2) of the Stock Diseases Act 1954 (NT) since Mr Tabrett was himself the holder of that office [109] . Be that as it may, the case was conducted in this Court on the basis that the Mengels had suffered substantial "harm or loss" which was a foreseeable and foreseen - and relevantly "inevitable" - consequence of their obedience to the unauthorised directions given by the stock inspectors. The quantum of damages which the Court of Appeal determined to be appropriate to compensate the Mengels for the "harm or loss" sustained has not been challenged.

1. Section 27 is set out in the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ.

The requirement of "intentional" in the Beaudesert formulation was directed towards the doing of the particular act rather than the causing of the "harm or loss". The requirement of "positive" necessitates, at the most, that the act be one of commission. It has not been argued on behalf of the appellants that the communication of the assertion that the stations were under quarantine and the giving of the instructions restricting movement were not intentional and positive acts in that sense. The main basis of the appellants' argument that the present case falls outside the Beaudesert formulation is a submission that the relevant acts of the stock inspectors, while unauthorised and lacking legal efficacy, were not "unlawful" in the sense in which that word was used by Taylor, Menzies and Owen JJ in their joint judgment.

In Dunlop v Woollahra Municipal Council [110] , Lord Diplock, having referred to the distinction between "illegality on the one hand and invalidity on the other", said that their Lordships of the Privy Council had "no doubt" that the word "unlawful" as used in the Beaudesert proposition was "intended to be understood in what for the past 90 years has been its only accurate meaning", namely, illegal in the sense of being "contrary to law" [111] . While I would hesitate to assert that the "accurate meaning" of "unlawful" for the past ninety years had precluded the word ever being properly used to refer to mere invalidity on grounds such as "immorality" or "unreasonable restraint of trade" [112] , I agree that the word "unlawful" was used by Taylor, Menzies and Owen JJ in the critical passage in Beaudesert [113] in the sense of "contrary to law" as distinct from either invalid or unauthorised. So to say goes but part of the way towards resolution of the ambiguity arising from the use of the word "unlawful" in Beaudesert. There, the extraction of the gravel without a permit was said to be contrary to a specific statutory prohibition [114] . In that context, it is arguable that the phrase "forbidden by law" which was used by Taylor, Menzies and Owen JJ in the first formulation of their proposition [115] and the word "unlawful" used in its ultimate formulation [116] were intended to refer only to acts which are "forbidden" either by the criminal law or by some specific and direct statutory prohibition [117] . That argument derives some support from their Honours' subsequent statement that "a wider proposition" may be justifiable but that "the proposition we have stated covers this case" [118] . On balance, however, a careful reading of the judgment in Beaudesert [119] leads to the conclusion that the phrase "forbidden by law" and the word "unlawful" were intended by their Honours to be understood in a wider sense which at least encompasses a tortious infringement or contravention of the rights of another. It is unnecessary for the purposes of the present case to determine whether "unlawful", as used in Beaudesert, also encompasses an act done in breach of contract [120] since there is no suggestion that anything said or done by or on behalf of the appellants constituted a breach of contract.

1. [1982] AC 158 at 171. 2. See, eg, Jowitt's Dictionary of English Law, 2nd ed (Burke) (1977), vol 2, p 1834, under "unlawful". 3. See the judgment of Lord Halsbury LC in Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25 at 39, to which Lord Diplock referred in Dunlop v Woollahra Municipal Council [1982] AC 158 at 171. 4. (1966) 120 CLR 145 at 156. 5. Beaudesert (1966) 120 CLR 145 at 149. 6. Beaudesert (1966) 120 CLR 145 at 152. 7. Beaudesert (1966) 120 CLR 145 at 156. 8. See, eg, the "shades of meaning" of the word "unlawfully" mentioned by Griffith CJ in Lyons v Smart (1908) 6 CLR 143 at 147-148. 9. Beaudesert (1966) 120 CLR 145 at 156. 10. See, eg, the reference to "wrongful acts" in the penultimate sentence at 152; the actual citations (at 153-155) from Bacon's Abridgements, Whaley v Laing (1857) 2 H & N 476 [157 ER 196], and Keeble v Hickeringill (1706) 11 East 574 [103 ER 1127]; and the reference (at 155) to the judgments of Bowen LJ and Fry LJ in Mogul Steamship Co Ltd v McGregor, Gow & Co (1889) 23 QBD 598 at 614, 626. 11. cf, eg, Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 768-769; Rookes v Barnard [1964] AC 1129 at 1185-1186, 1233-1235.

Prima facie, the acts of the stock inspectors in the present case were not unlawful in the sense accepted in the preceding paragraph. The statement that the two stations were "under quarantine" contained in the facsimile from Mr Tabrett which was delivered to the Mengels by Mr Baker was mistaken. However, its making and communication were not, without more, contrary to any criminal or civil law. As indicated above, I consider that the statements about the movement of breeding stock are properly to be seen not only as assertions of fact but also as instructions given by Mr Tabrett and/or Mr Baker in their official capacities. Nonetheless, and regardless of whether they be viewed as mere statements of fact or as instructions to be obeyed, they also were not, without more, unlawful in the sense of being contrary to law. In so far as they were statements of fact, they were honestly mistaken. In so far as they were instructions to be obeyed, they were simply unauthorised and invalid [121] .

1. See, generally, Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 at 338, line 11-339, line 23.

In the Court of Appeal, Priestley J, who delivered the leading judgment, acknowledged the force of the submission that "the mere fact" that the stock inspectors' acts were unauthorised did not suffice to satisfy the requirement of "unlawful" in the Beaudesert proposition. His Honour continued:

but the plaintiffs were not relying merely on lack of authority, they were relying on lack of authority in combination with the pressure exerted on the plaintiffs by the defendants, their claims apparently backed by the authority of their official position, to get the plaintiffs to comply with the consequences of the defendants' view of the changed status of their holdings and/or herds and the implied threat of penal consequences if the plaintiffs did not do what the defendants were telling them to do. The additional factors of "pressure" and an "implied threat of penal consequences" led his Honour to conclude that the requirement of "unlawful" was satisfied in the present case. With due respect, I am unable to accept that conclusion. An intimation that disobedience will be accompanied by penal consequences does not, in my view, suffice to transform an instruction given in an honest but mistaken purported exercise of official authority into an act which is "unlawful" or "forbidden by law" within the meaning of that word or phrase as used in Beaudesert. In that regard, I would understand a "threat of penal consequences", whether express or implied [122] , as conveying no more than an intimation that the person making the threat might resort to legal proceedings for the purpose of seeking whatever, if any, relief or penalty was appropriate in all the circumstances of the case. 1. Rightly, it was not suggested by the appellants that the making of a threat which is implicit in some positive act or acts of communication is not a "positive" act for the purposes of the Beaudesert proposition.

However, in a subsequent section of his judgment, Priestley J appears to have concluded that, on the facts of the present case, there had been an implied threat by Mr Tabrett and Mr Baker of an "unlawful interference with property or of unlawful prosecution" in the event that the Mengels did not observe the unauthorised instructions restricting the movement of their cattle. In that context, it is possible that his Honour intended the phrase "implied threat of penal consequences" in the earlier passage in his judgment to be understood as a threat of unlawful interference with property and/or unlawful prosecution (eg malicious prosecution). As Priestley J recognised, the learned trial judge made no finding to the effect that such an implied threat of unlawful retribution had ever been made by, or on behalf of, any of the appellants. Nor, on my understanding, was there anything at all in the evidence which could sustain such a finding. In that regard, it was effectively common ground in this Court that no suggestion of the existence of an express or implied threat of unlawful conduct was raised in evidence in the courts below. In these circumstances, the most that might properly be implied from what was said and written by or on behalf of the appellants is a threat that whatever steps could lawfully be taken to prevent or penalise contravention of the instructions restricting movement of cattle would be taken.

It follows that the conclusion in the courts below that the Beaudesert requirement of an "unlawful" act was satisfied cannot, in my view, be sustained. Strictly speaking, it is unnecessary that I deal with the submission that the Beaudesert proposition should be overruled. That submission is, however, dealt with and upheld in the judgments of the other members of the Court and it is appropriate that I indicate my views in relation to it.

It can be said at once that I do not share the extreme antipathy which some commentators have expressed towards Beaudesert. In particular, the assertion that has sometimes been made to the effect that the proposition derives no support whatever from any of the authorities relied upon in the judgment seems to me to be quite unjustified. That point can be sufficiently illustrated by reference to the first of the cases which Taylor, Menzies and Owen JJ cited in support of the proposition, namely the 1355 Common Pleas case of the Abbot of Evesham. Their Honours quoted in full [123] the summary of that case which is set out in Coke's Report of The Earl of Shrewsbury's Case [124] :

The Abbot of Evesham brought an action on the case against certain persons, and declared that he had a fair in S with all that belonged to a fair, and that the defendant with force and arms disturbed the people coming to the fair (which was causa causans) by which the plaintiff lost his toll (which was causa causata) the point of the action, and the action held maintainable. They went on [125] to point out that Bacon had also accepted the decision in the Abbot of Evesham's Case as good law and had cited the case in his Abridgements [126] in support of the general proposition that "if persons coming to market are disturbed, by which I lose my toll, an action on the case lies". 1. Beaudesert (1966) 120 CLR 145 at 153. 2. (1610) 9 Co Rep 46b at 50b [77 ER 798 at 806]. 3. Beaudesert (1966) 120 CLR 145 at 153. 4. Abridgements, vol 1, p 88.

The first published assertion that the Abbot of Evesham's Case, and Coke's and Bacon's acceptance of it, provided no support for the Beaudesert proposition would seem to have been made in an article by Dworkin and Harari in the Australian Law Journal in the year following the decision [127] . It is appropriate to examine the authors' comments in that regard in some detail since they would seem to have been accepted as well founded by Richardson J in his important judgment in the New Zealand Court of Appeal in Takaro Properties Ltd v Rowling [128] . They wrote [129] :

Several comments can be made. Even if one assumes that this is not a special area of the law relating to markets and fairs, it appears that the plaintiff was both the person with the right to hold the fair and also the person with the right of toll. The defendant was liable to the plaintiff in intimidation as there were unlawful acts towards the visitors which were intended to deter them from going to the fair. In any event, a substantial distinction between this case and the Beaudesert case was, of course, that in the latter case the unlawful act was not committed with any intention to injure the plaintiff. 1. "The Beaudesert Decision - Raising the Ghost of the Action upon the Case - Part 1", Australian Law Journal, vol 40 (1967) 296, 347. 2. [1978] 2 NZLR 314 at 339. 3. Australian Law Journal, vol 40 (1967), at p 304.

With due respect, any superficial validity of those "comments" evaporates under informed examination. The opening assumption that "this is not a special area of the law relating to markets and fairs" is fully justified [130] . As Professor Kiralfy recognised in his landmark work on The Action on the Case [131] , the Abbot of Evesham's Case provides a paradigm of an early action on the case in trespass. The statement that "it appears that the plaintiff was both the person with the right to hold the fair and also the person with the right of toll" really adds nothing since the toll in the Abbot of Evesham's Case was obviously a market or fair toll. Moreover, the more detailed reports of the case disclose that the Abbot's £40 damages were awarded for lost profits as well as lost toll.

1. Note that Blackstone includes such an action in his category "Private Wrongs of Disturbance" under the sub-category "Disturbance of Franchise": see Commentaries on the Laws of England, 16th ed (1825), bk 3, c 16, pp 236-237. 2. (1951), pp 4-5.

Most importantly, the comment that the "defendant was liable to the plaintiff in intimidation as there were unlawful acts towards the visitors which were intended to deter them from going to the fair " (emphasis added) would seem to be essentially irrelevant speculation, flavoured by a hint of anachronism. There is nothing at all in the reports of the Abbot of Evesham's Case [132] or in the acceptance of it in Coke's Reports to suggest that the decision was in any way based on the existence of such an intention. Indeed, there is nothing at all in those reports to suggest that the disturbance of those going to the Abbot's fair was in fact intended to injure, or directed at, the Abbot as distinct from molesting those disturbed. Nor is there anything at all in Bacon's Abridgements to suggest that his general proposition based upon the decision was intended to be understood as confined, by an unstated qualification, to circumstances where the defendant had "disturbed" the "persons coming to market" with the intention that the plaintiff lose his toll or his profits or be otherwise injuriously affected. Obviously, the emphasis on intention in the formulation of some comparatively modern economic torts, such as intimidation and conspiracy, provides no basis for assuming that an intention to injure the plaintiff must have existed in a successful fourteenth century action on the case in trespass [133] . The last sentence in the above extract from the Dworkin and Harari article loses its content with the rejection of the assertion that the reports of the Abbot of Evesham's Case and Coke's and Bacon's acceptance of it are to be explained by an assumption of a failure either to appreciate or to mention that the true basis of the case was an intention to damage the plaintiff.

1. See CP Roll M 29 Edw III m 241; (1355) YB 29 Edw III Pf 18. Both reports are reproduced in Kiralfy, The Action on the Case (1951), pp 207-208. 2. See the examples of such actions given in Kiralfy, pp 133-135. And note Blackstone, op cit, bk 3, c 16, pp 236-237.

It is not necessary for present purposes to undertake a detailed analysis of the other authorities upon which the members of the Court relied in Beaudesert. It suffices to say that, as Priestley J demonstrated in the Court of Appeal, most, and arguably all [134] , of them provide some support for some aspect or aspects of the Beaudesert proposition [135] . On the other hand, none of them really supports acceptance of that proposition as a modern doctrine applicable to all "unlawful" acts. However, the purpose for which most of those authorities were cited was not so much to provide direct discrete support for the proposition as to illustrate what their Honours conceived to be the essential function of, and the principles which underpinned, the action on the case in trespass. In that regard, their Honours' focus would seem to have been on the fact that the action in its early development was not concerned to make the act complained of wrongful but as providing a remedy for an independently wrongful act. Consequential damage provided the occasion for, and the foundation of, an action on the case. Initially, however, the writ did not run unless the act which caused the consequential loss was already wrongful either under customary law or by reason of some statutory prohibition [136] . On the other hand, if consequential damage was sustained and the act was wrongful for any of a variety of reasons including being in breach of the criminal law, an action on the case would prima facie lie. In so far as breach of the criminal law was concerned, the fact that an act was forbidden by statute would, in early times, suffice [137] .

1. See Sadler, "Whither Beaudesert Shire Council v Smith?", Australian Law Journal, vol 58 (1984) 38. 2. The fact that an intention to injure the plaintiff existed in a particular case does not negative that support if the report of that case suggests that that fact was not a basis of the actual decision: see, eg, Carrington v Taylor (1809) 11 East 571 [103 ER 1126]. 3. See Kiralfy, pp 10-11, 133. 4. See Kiralfy, pp 10-11.

It follows from what has been said above that the principles underpinning the original development of the action on the case in trespass and the authorities which applied them provide significant support for the Beaudesert proposition. Indeed, it seems to me that a hypothetical judge of the late fourteenth century who was prepared to address principles rather than facts would have had little hesitation in accepting the proposition in its entirety provided, of course, that the notion of "unlawful" was confined to what was forbidden by the customary or statute law of those times. In my view, valid criticism of the proposition must be based not on the absence of old authority to support it but on the effect of subsequent developments in the common law.

Those subsequent developments have operated at two distinct levels. First, the action on the case was, after the fourteenth century, increasingly allowed in cases where the act was not previously wrongful and the upholding of the writ involved the recognition of a new wrong. The result was that the general proposition that an action on the case was a claim for harm or loss sustained as the consequence of an act which was already independently wrongful or unlawful lost its general validity. Second, and more important, the evolution of the modern law with its special rules operating in the more clearly defined areas of established nominate torts has, to a significant extent, confined and undermined the contemporary relevance of any general principles which could be discerned as informing the early evolvement of the action of the case. In the context of those developments, it is, in my view, impossible to sustain the validity of the Beaudesert proposition at least in so far as it applies to acts which are not in contravention of the customary criminal law or some applicable statutory prohibition. In its purported application to such non-criminal acts, the proposition impermissibly intrudes into areas now occupied and governed by the principles and the requirements of the modern law of negligence and other particular torts such as enticement, conspiracy and intimidation. In that regard, I am in general agreement with what is said in the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ under the heading "Intentional and negligent infliction of harm in the law of torts".

As has been seen, Beaudesert was a case in which it was said that there had been a direct contravention of a specific statutory prohibition. The taking of gravel without a permit was forbidden yet gravel was taken. If the requirement of "unlawful" in the Beaudesert proposition had been confined to such a case or to a case of breach of the customary criminal law, there would be more substantial grounds for arguing that it should be left undisturbed. It can be argued that there is no compelling reason in principle or policy for denying the existence of a cause of action in circumstances where a defendant has intentionally done a positive act, in contravention of the customary criminal law or of some statutory prohibition, which has, as an inevitable consequence, caused loss or harm to the plaintiff. As a matter of policy, there is much to be said for the view that persons who will suffer "harm or loss as the inevitable consequence" of such an intentional positive criminal act should be entitled to order their affairs on the basis that the criminal law, whether customary or statutory, will be obeyed. As a matter of principle, it is arguable that recovery of damages for loss or harm sustained as an inevitable consequence of the criminal conduct of another accords with fundamental values of the common law which remain substantially unaffected by the developments in the common law to which reference was made in the preceding paragraph. The argument to that effect is advanced by reference to another aspect of the early history of trespass and the action on the case in trespass.

The origins of trespass lay largely in the common law's perception that a person who sustains injury directly caused by the criminal conduct of another - "disturbance of the peace" and "force and arms" - should have a remedy against the offender. Indeed, as late as 1825, Blackstone could write [138] that causes of action involving the allegation of force and violence "savour something of the criminal kind, being always attended with some violation of the peace; for which in strictness of law a fine ought to be paid to the king, as well as private satisfaction to the party injured". The Abbot of Evesham's Case demonstrates that the action on the case in trespass initially enabled recovery for damages sustained as a consequence of such conduct against a third party. As has been seen, it was recognised from early times that an action on the case also lay to recover damages sustained as a consequence of a defendant's criminal breach of statute. Here, the original basis of the action was the damage sustained by reason of the illegal act done in breach of the statute and in "contempt of the Sovereign". Clearly enough, the old cases lend some support for a general proposition that a person who sustains hurt or loss as a consequence of the positive criminal acts of another is entitled to compensatory damages.

Notwithstanding the above arguments, I consider that the Beaudesert proposition should not be sustained even if confined to criminal conduct. I shall briefly identify the considerations which have led me to that conclusion. First, the wide scope of criminal conduct under the law of this country, the differences in degrees of culpability and, in some areas, the artificiality of the distinction between unlawful conduct which is criminal and unlawful conduct which is not, combine to make a general proposition which applies indifferently to impose liability for every consequential injury inevitably caused by any unlawful act (which is positive and intentional) inappropriate to contemporary circumstances. It would, for example, be both harsh and arbitrary if every person who, by an intentional positive act, commits an inadvertent minor and technical breach of the criminal law was liable in damages to all who suffer loss or harm as an inevitable consequence even though there was no relevant breach of duty, no intention to cause loss or harm and the act was one which could be done lawfully and, if done lawfully, would have caused corresponding loss or harm in respect of which no liability would exist. Second, particular rules have developed to identify the circumstances in which, as a matter of statutory construction, a breach of a statutory prohibition or requirement gives rise to civil liability independently of the ordinary law of torts. As Professor Kiralfy commented [139] , a "modern court applies much stricter tests before it allows a civil action for damages based on a Statute creating a criminal offence". There is an obvious tension between those much stricter tests with their focus on legislative intent and the Beaudesert proposition. Indeed, at times, that tension borders on inconsistency [140] . Third, it seems to me that the developments in the law of torts to which reference has already been made, while not compelling in so far as the application of the Beaudesert proposition to criminal conduct is concerned, strongly militate against its acceptance even if confined to such conduct.

1. Kiralfy, p 10. 2. See, eg, Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405-406.

It follows that I would overrule the decision in Beaudesert and the proposition upon which it was based.

As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v Woollahra Municipal Council [141] , the tort of misfeasance in public office is "well-established". Its elements are: (i) an invalid or unauthorised act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The critical element for present purposes is malice.

In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff [142] . Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness [143] to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied.

1. See Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716 at 776-777. 2. cf Owen v Homan (1853) 4 HLC 997 at 1035 [10 ER 752 at 767], per Lord Cranworth LC: "wilful ignorance."

Clearly, there was no basis in the circumstances of the present case for a finding of such an intention, such knowledge or such reckless indifference or deliberate blindness against any of the appellants. That being so, it follows that the appellants were not liable to the Mengels for misfeasance in public office in the circumstances of the present case. Subject to what is said above, I am in general agreement with the reasons given in the judgment of Brennan J for that conclusion.

In James v The Commonwealth [144] , Dixon J quoted with apparent approval the following passage from the 9th edition of Salmond [145] :

Although there seems to be no authority on the point, it cannot be doubted that it is an actionable wrong intentionally to compel a person, by means of a threat of an illegal act, to do some act whereby loss accrues to him: for example, an action will doubtless lie at the suit of a trader who has been compelled to discontinue his business by means of threats of personal violence made against him by the defendant with that intention. That passage was also quoted in full and with approval by Lord Devlin in Rookes v Barnard [146] . In the Court of Appeal in the present case, Priestley J accepted it as a correct statement of the law. I agree with his Honour in that regard. His Honour also expressed the conclusion that he would, if necessary, uphold the verdict in the Mengels' favour on the basis of the cause of action identified in that passage. While I am in agreement with much of his Honour's reasoning, I respectfully disagree with that conclusion. 1. (1939) 62 CLR 339 at 374. 2. Salmond's Law of Torts, 9th ed (1936), p 633. In his judgment in the Court of Appeal, Priestley J pointed out that the passage had remained unchanged since the first edition of the work in 1907. The substance of the passage remains in the current edition subject to the opening statement of lack of authority being deleted in favour of reference to subsequent approving authority: see Heuston and Buckley, Salmond and Heuston on the Law of Torts, 20th ed (1992), p 379. 3. [1964] AC 1129 at 1205.

If the Mengels had been induced to refrain from movement of their cattle by an express or implied threat of unlawful seizure which was made by the inspectors with the intention and for the purpose of preventing such movement, they would, in my view, have been entitled to recover damages for the tort of intimidation identified by Sir John Salmond in the above passage. As I have indicated, however, I do not consider that there is any basis in the evidence for a finding of such an express or implied threat. Nor, in my view, is there any basis in the evidence for a finding that the Mengels were in fact induced to refrain from moving their cattle by a belief that such a threat had been expressly or impliedly made. The most that the evidence might arguably sustain was a finding of an express or implied threat that whatever steps could lawfully be taken to prevent movement of cattle would be taken.

In these circumstances, the reason which led Dixon J to conclude that the cause of action identified by Sir John Salmond was not available to Mr James is also applicable to the present case. His Honour said [147] : "a short answer to this suggestion is that the plaintiff in fact was not influenced by the fear of seizure and it was not the threats supposed that operated to restrain his trading." In one respect, the Mengels' case is not as strong as Mr James' in that, in James, Dixon J was apparently prepared to infer from the circumstances of that case, including some past seizures, that a threat of unlawful seizure had impliedly been made [148] . Nonetheless, Dixon J found that the operative influence had been "fear of prosecution under the regulations, the belief that it was contrary to the law to carry the fruit and the common desire not to come into conflict with a government department" [149] . It is debateable whether the evidence in the present case goes even far enough to found a corresponding conclusion as to the operative influence which caused the Mengels to refrain from moving the cattle since it was conceded on their behalf in this Court that "no issue concerning the belief of [the Mengels] as to prosecution [had been] raised or tested". Certainly, the evidence in the present case cannot sustain a more favourable conclusion from the Mengels' point of view.

1. James (1939) 62 CLR 339 at 374. 2. James (1939) 62 CLR 339 at 366-367, 374. 3. James (1939) 62 CLR 339 at 367.

In James v The Commonwealth [150] , Dixon J was clearly of the view that a threat of prosecution was not, without more, a threat of an illegal act even if a prosecution would be doomed to fail. As I have already indicated, I respectfully agree with his Honour's view in that regard. There is nothing illegal about a prosecution which is brought bona fide but which fails and, in the absence of malice or some ulterior or improper motive, a threat to institute a prosecution is not a threat of an "illegal act" for the purposes of an action for intimidation. As Dixon J commented [151] :

The situation is simply that the Executive, charged with the execution of the law, under a bona-fide mistake as to the state of the law, proposes to proceed by judicial process. The courts are established by and under the Constitution for the purpose, among others, of determining whether the Executive is or is not mistaken in its view of the law which it seeks to enforce against the individual, and judicial process is the appointed means for bringing the question up for decision. To treat a proposal or threat to institute proceedings as a wrongful procurement of a breach of duty is to ignore the fact that, assuming bona fides, the law always countenances resort to the courts, whether by criminal or civil process, as the proper means of determining any assertion of right. 1. (1939) 62 CLR 339 at 366-367, 373. 2. James (1939) 62 CLR 339 at 373; and see also Werrin v The Commonwealth (1938) 59 CLR 150 at 157; Mason v New South Wales (1959) 102 CLR 108 at 135, 144; Central Canada Potash Co Ltd v Attorney-General (Saskatchewan) (1978) 88 DLR (3d) 609 at 639ff.

It follows from the above that an action for intimidation was not made out.

I agree with Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ that, for the reasons which they give, the judgment in the Mengels' favour cannot be sustained on the basis suggested by Angel J in the Court of Appeal, namely, as "a consequence of the constitutional principle of the rule of law rather than any private tort". I also agree with their Honours that, in the context of the manner in which the case was conducted in the courts below and in this Court, it would be quite inappropriate for this Court to embark on the question whether the Mengels' claim could be reformulated as an action in negligence founded on the proposition that Mr Tabrett and Mr Baker were in breach of a duty of care owed to the Mengels in failing to appreciate that their actions were unauthorised. I would, however, indicate that I disagree with the view that that proposition could not be made good by reason of the absence of a positive finding that there was no "approved programme". In my view, a positive finding to that effect is implicit in the judgment of the learned trial judge. Indeed, so much was expressly conceded by the appellants in their written submissions in this Court which include among the "primary findings of fact" a finding that the inspectors were not "authorised because the herds in question were not at the time "subject to an eradication programme approved for the purposes of the [BTEC] campaign" ".

I agree with the orders proposed by Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ. I would, however, extend to the Mengels the opportunity of applying for a further order which would allow them, even at this very late stage, to apply to the Court of Appeal for leave to seek to reformulate their case as an action in negligence. Their failure in any event on the Beaudesert claim would militate against the grant by the Court of Appeal of such leave. Also, there are some obvious difficulties, such as causation of damages, which would lie in the path of any such reformulated action. Nonetheless, it seems to me that there may be something to be said for the view that, in circumstances where their case was primarily formulated as a claim based on the Beaudesert proposition which they were then entitled to assume to be good law but which has now been overturned by this Court, they should be given the opportunity of making such an application to the Court of Appeal.