Misfeasance in Public Office: This is your business not just ICAC’s

Misfeasance in Public Office: This is your business not just ICAC’s

ICAC is a statutory organisation that exercises its roles and responsibilities under its founding statue Independent Commission Against Corruption Act 1988 (NSW).

ICAC is thereby enabled to investigate and make binding statutory determinations dealing with ‘corrupt conduct’ for most types of public sector employees, including:

  • Government Departments
  • Local Councils
  • Members of Parliament
  • Ministers
  • Judicial members; and
  • the Governor.

The problem of Misfeasance in Public Office is not unique to NSW or Australia and in fact arises from time to time in many common law countries including the United Kingdom, UK.

For instance the UK Law Lords in Watkins v Home Office & Ors [2006] UKHL 17 gave clear indication special form damages need to be suffered by the aggrieved party to ground an action of Misfeasance in Public Office.

This might be the case perhaps if it is proven in a Superior court that:

  • you lost an important and valuable government contract or tender where the determination was ‘not at all merit based’; or
  • where a public official grossly unreasonably exercised discretion in a public/private government partnership (PPP) arrangement in a manner and in circumstances that may give rise to a finding of malice against that public official.

The elements of proving an actionable wrong in the tort of Misfeasance in Public Office, briefly involves the aggrieved party proving an act or series of acts and/or omissions were:

  • invalid or unauthorised
  • done maliciously
  • done by a public officer
  • done in the purported discharge of his or her public duty; and
  • caused loss to the aggrieved party.

If your business plays by the rules and complies with all its legal obligations in certain circumstances a ‘corrupt’ and ‘maliciously acting’ public official could have indeed caused your business special loss and damage.

This of course remains a matter for determination by our Superior courts. Pambris Law looks forward to accepting instructions where your business may have been seriously adversely affected by a maliciously acting Public Official without fear or favour.

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