Northern Territory v Mengel

Northern Territory v Mengel - [1995] HCA 65 - HCA 1995 case summary — Zoe

[144]

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.

[162]

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.

[184]

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.

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