MISFEASANCE IN PUBLIC OFFICE: A VERY PECULIAR TORT

In a much-quoted passage, Brennan J said in Mengel that the core of misfeasance lay in ‘the absence of an honest attempt to perform the functions of the office’.[141] His Honour said that there was such an absence if the defendant had acted invalidly and with malice, knowledge or reckless indifference, and he may well have intended that list to be exhaustive. There are passages in Three Rivers that could be interpreted as requiring proof of dishonesty or bad faith as an additional element in all cases.[142] In Australia, proof that defendants knew that they were acting beyond power is all that is needed to establish bad faith

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