By Ellen Rock -
Snapshot
- Misfeasance in public office remains a difficult tort to prove and is rarely successful.
- The intention element of the tort requires, at a minimum, knowing or reckless indifference as to the legality of the officer’s act and its consequences.
- Knowing failure to read and consider material as required by statute can found a misfeasance claim, though this remains an exceptional case.
The misfeasance tort attracts a surprising amount of public interest given how rarely it is successfully litigated. A good number of misfeasance cases are struck out or abandoned at the pleading stages and only a tiny handful are ultimately successful. A 2021 analysis (‘Barker et al’) of case outcomes puts the rate of success as low as 5 per cent. The tort’s symbolic significance is probably one of the reasons why it continues to attract so much attention. While many torts can be used to hold the government accountable for harm caused by the wrongful exercise of public power, the misfeasance tort is significant because it targets the types of abuse of power that pose real risks to public trust in government.
In late 2025, Treston J of the Supreme Court of Queensland handed down judgment in a rare example of a successful misfeasance case, commenced against the director of the federal Medicare watchdog, Kitchen v Quinlivan (No 3) [2025] QSC 351 (‘Quinlivan’). This article briefly outlines the elements of the misfeasance tort and explains why the plaintiff in Quinlivan was able to meet the high bar required for success.
