Private Law Theory

ABSTRACT
The rationale for the tort of misfeasance in public office remains the subject of academic speculation. This article adopts the concept of accountability as the tort’s guiding rationale, analysing it within the accountability framework: who is accountable to whom, for what, and how? Within this framework, it is possible to identify various points of tension between aspects of the tort, as it pulls at different times towards the disparate goals of restoration, desert, and deterrence. Characterising the tort as an accountability mechanism allows us to view it as reflecting a compromise between these accountability goals, and also helps explain why the tort continues to draw interest in public and private law circles, notwithstanding its low rate of success in practice.

Ellen Rock, Misfeasance in Public Office: A Tort in Tension, (2019) 43(1) Melbourne University Law Review 337.

First posted 2020-02-25 09:29:38