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QLD Malfeasance in Office - Government Officials?

Discussion in 'Criminal Law Forum' started by Sabre8709, 24 October 2014.

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  1. Sabre8709

    Sabre8709 Member

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    I'd appreciate if a legal practitioner could go into detail about Malfeasance in office - I'm currently studying the subject at the moment and there seems to be very little recorded cases of it.
    I'm wanting details of how to successfully argue malfeasance in office in court, and what would be possible defences against it also. I know most legal professionals argue against the context of malfeasance in office and this leads to confusion of how to determine it in court.
    Really just wanting an in depth discussion and details on malfeasance in office, and what is the best way to argue the context of malfeasance in court against public (government) officials.
    Thanks in advance
     
  2. CathL

    CathL Well-Known Member

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    Hi @Sabre8709
    I can appreciate how confusing this area of law is - it doesn’t seem to be common tort claim. I presume you can’t give much further context to your issue and situation?

    The Queensland Department of the Premier and Cabinet “Misfeasance in public office” page has some helpful information, including the elements that you'd need to prove to establish the tort of misfeasance in public office:

    That an act was:

    1. invalid or unauthorised,
    2. done maliciously,
    3. done by a public officer,
    4. done in the purported discharge of his or her public duty, and
    5. caused loss to the plaintiff.
    The following actions by a public officer may constitute misfeasance in public office:
    • action taken in excess of power with an intention to cause harm
    • action taken in knowledge that there is no statutory authority and the damage is foreseeable; or
    • action done with reckless indifference.
    An act conducted in good faith and without knowledge of the invalidity of the act is not likely to constitute misfeasance in public office.

    I would look at Austlii for cases and articles that reference Mengel’s case (Northern Territory v Mengel (1995) 185 CLR 307) and the tort of misfeasance in public office. I have done a quick search and can see there are some that come up in the Austlii search results.

    Hope that helps :)
     
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  3. Sabre8709

    Sabre8709 Member

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    thanks for your response
    the difficulty is getting the correct terms and definitions
    There's malfeasance, misfeasance, nonfeasance etc.

    In my case, there has been one government department acting in an illegal manner, then they collaborated with a second government department to further the harassment. Government has attacked me and attempted to whitewash the information and prevent matter from going to court, they tried to hide the paper trail but unfortunately for them I was able to obtain the documents :) My case is headed to supreme courts against Both departments.

    I'm unable to go into too much detail about my case.
    I'm just trying to fully understand the context due to limited information or examples.
    While misfeasance is on one individual, would malfeasance be where the action occurred with a group of people?
    And trying to get discussion on what are the possible strengths of arguing for malfeasance, and what to expect as defence from the other party defending against it..

    Wikipedia: An exact definition of malfeasance in office is difficult. Many highly regarded secondary sources compete over the elements. This confusion extends to the courts where no single consensus definition of malfeasance in office has arisen. In part, this can be attributed to the relatively few reported cases involving malfeasance in office.

    English law[edit]
    Under English law, misconduct (or misfeasance) in public office is an offence at common law.[1]
    The offence carries a maximum sentence of life imprisonment. It is confined to those who are public office holders, and is committed when the office holder acts (or neglects to act) in a way that constitutes a breach of the duties of that office.[2]
    The Crown Prosecution Service guidelines on this offence[1] say that the elements of the offence are when:
    1. A public officer acting as such.
    2. Wilfully neglects to perform his duty and/or wilfully misconducts himself.
    3. To such a degree as to amount to an abuse of the public's trust in the office holder.[3]
    4. Without reasonable excuse or justification.
    The similarly named malfeasance (or misfeasance) in public office is a tort. In the House of Lords judgement on the BCCI malfeasance case it was held that this had 3 essential elements:[4]
    1. The defendant must be a public officer
    2. The defendant must have been exercising his power as a public officer
    3. The defendant is either exercising targeted malice or exceeding his powers
    "Misconduct in public office" is often but inaccurately rendered as "misconduct in A public office", which would mean something different.
     

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