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NORTHERN TERRITORY OF AUSTRALIA AND OTHERS v. ARTHUR JOHN MENGEL AND OTHERS F.C. No.95/017 (1995) 129 ALR 1, (1995) Aust Torts Reports 81-335 (1995) 69 ALJR 527


COURT
HIGH COURT OF AUSTRALIA
MASON CJ(1), BRENNAN(2), DEANE(3), DAWSON(1), TOOHEY(1), GAUDRON(1) AND
McHUGH(1) JJ
HRNG
CANBERRA, 11-12 August and 6 September 1994
#DATE 19:4:1995 #ADD 19:4:1995


  Counsel:
  T.I. Pauling QC, Solicitor-General for the Northern Territory with R.J. Webb
and K.F. Gillman, for the Appellants, instructed by D.M.I. Dreier, Solicitor
for the Northern Territory

  D.F. Jackson QC and G.E. Hiley QC, for the Respondents, instructed by
Cridlands

  K. Mason QC, Solicitor-General for the State of New South Wales and I.M.
Jackman for the Attorney-General for New South Wales, instructed by the Crown
Solicitor for New South Wales

  D. Graham QC, Solicitor-General for the State of Victoria and S.S. Davis for
the Attorney General for Victoria, instructed by Victorian Government
Solicitor

  D.J. Rose QC and R. Balkin for the Commonwealth Attorney-General, instructed
by the Australian Government Solicitor

  B.M. Selway, Crown Solicitor for the State of South Australia and N.A.
Manetta for the Attorney-General for South Australia, instructed by the Crown
Solicitor for South Australia
ORDER
  Appeal allowed.

  Set aside the orders of the Court of Appeal of the Northern Territory, other
than those relating to costs.  In lieu thereof, order that the appeal be
allowed, the cross-appeal be dismissed, the orders of Asche CJ be set aside,
other than those relating to costs, and a verdict be entered for the
defendants.
JUDGE1
MASON CJ, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ   The respondents own two
cattle stations in the Northern Territory, Neutral Junction which members of
the Mengel family acquired in 1962 and Banka Banka Station which was purchased
in 1987.  Banka Banka is approximately 200 kilometres north of Neutral
Junction and has a slightly higher rainfall.  One of the reasons for its
purchase was so that cattle could be moved there from Neutral Junction during
drought.


2.  The respondents (who can conveniently be referred to as "the Mengels")
purchased Banka Banka for approximately $3 million, financing its purchase
with a bank loan.  They intended to repay $1 million of that loan from the
sale of cattle by the end of the 1988 season. However, they were not able to
fully realize their selling plans and suffered loss because of action taken by
two employees of the Northern Territory Department of Primary Industry and
Fisheries ("the Department"), namely, Mr Baker, a stock inspector, and Mr
Tabrett, Acting Chief Veterinary Officer and Chief Inspector of Stock for the
Northern Territory ("the Inspectors") .  It is now clear that there was no
statutory or other authority for the acts of the Inspectors notwithstanding
that they were furthering the aims of a government-sponsored campaign to
eradicate bovine brucellosis and tuberculosis ("the campaign").


3.  The Mengels commenced proceedings in the Supreme Court of the Northern
Territory claiming damages against the Northern Territory ("the Territory")
and, also, against the Inspectors.  For the purposes of this appeal, the claim
can be described as one based on the unauthorized acts of the Inspectors.
This notwithstanding, the Territory accepts that, if there is any liability on
the part of the Inspectors, it is vicariously liable to the Mengels.
Presumably, the Territory takes the view that there was de facto authority for
the acts in question (1).


The campaign
4.  Brucellosis is a disease which affects cattle and humans who come into
contact with infected animals or their products.  It was widespread throughout
Australia in the 1970s and early 1980s but has now been eradicated.  The
Territory initiated its own campaign to eradicate the disease and this was
followed, in the early 1980s, by a national campaign involving
inter-governmental agreements between the Commonwealth, the States and the
Territory.  So far as the Territory is concerned, an agreement was made in
1984 by which the Commonwealth provided financial assistance and the Territory
undertook a program as therein specified for the eradication of bovine
brucellosis and tuberculosis.


5.  The agreement between the Commonwealth and the Territory envisaged the
testing of all herds, and destocking where necessary.  The primary method for
testing an animal for brucellosis - at least in the Territory - was to analyse
serum extracted from its blood.  However, healthy animals could sometimes
react positively to the test and, in cases of uncertainty, the general
practice was to kill those that reacted ("reactors") and to culture parts of
their anatomy, a process which took approximately four weeks.  The agreement
envisaged that compensation would be paid for infected cattle and, perhaps,
for cattle that had to be slaughtered for testing.  It also envisaged that, at
least in some circumstances, restrictions would be placed on the movement and
sale of cattle that might be infected, but not that compensation would be paid
in the event that loss was suffered as a result of those restrictions.


The legal basis for the campaign
6.  So far as the Territory is concerned, the campaign was carried out, in the
main, by means of agreements (known as "approved programs") between the
Territory and individual property owners.  It seems that most property owners
willingly entered into approved programs by which they agreed to have their
herds tested and destocked and the Territory agreed to compensate them for
infected animals and, perhaps, for healthy animals that had to be slaughtered
for testing.


7.  The campaign also had the backing of s.27 of the Stock Diseases Act 1954
(N.T.) ("the Act"), which authorized the classification of holdings in terms
which are also found in the agreement with the Commonwealth (2).  It
provided:
    "(1) The Chief Inspector may, by notice in writing to the owner
of a holding, in relation to a prescribed disease, give the holding one of the
following classifications:
  (a) accredited free;
  (b) confirmed free;
  (c) tested negative;
  (d) monitored negative;
  (e) provisionally clear;
  (f) restricted;
  (g) infected; or
  (h) not assessed.
  (2) The Chief Inspector (3) may, for the purpose of controlling a prescribed
disease, by notice in the Gazette, specify the restrictions which shall apply
to and in relation to the movement in, or into, or the sale or purchase in,
the Territory of stock, or a class of stock, and, for such purpose, the
restrictions may be expressed to relate to the disease status of a holding.
  (3) Without limiting the generality of subsection (2), the restrictions
specified in a notice under that subsection may include -
  (a) a total prohibition on the movement; and
  (b) a total prohibition on the sale or purchase, of stock or a class of
stock.
  (4) A person shall not move, sell or purchase stock in contravention of the
restrictions specified in a notice under subsection (2). 
  Penalty:  $1,000 or imprisonment for 6 months."
Brucellosis and tuberculosis were prescribed diseases for the purposes of
s.27.


8.  A notice under s.27(2) of the Act was published in the Northern Territory
Gazette on 31 August 1988 ("the Gazette notice") which, so far as is presently
relevant, was as follows:
    "BRUCELLOSIS
    Movement in and Into The Territory
    Where cattle or buffalo are from herds with a disease status, in
accordance with the national brucellosis and tuberculosis eradication
campaign, of -
  (a)  infected, suspect, restricted or provisionally clear where herds
subject to an eradication programme approved for the purposes of that campaign
and are - 
   (i) spayed females or steers - no restrictions and no test
required; or 
   (ii) entire cattle or buffalo - movement permitted for the
purpose of immediate slaughter provided cattle or buffalo moved directly to an
abattoir;
  (b) tested negative, monitored negative, or confirmed free where herds not
previously infected - no test required".
Neither the Act nor the approved programs provided for payment of compensation
in the event that a property owner suffered loss by reason of movement
restrictions flowing from s.27(2) of the Act.


9.  It remains to be noted that the Act conferred other powers which, although
not specifically related to the campaign, might be used in an appropriate
case.  For example, s.42(1)(l) conferred power on an inspector (4) to:
  "order the owner of land, on which are depastured any stock which the
inspector has reasonable cause to believe are infected, to prevent any stock
from entering or leaving such portion of the land as is specified by the
inspector for such period, not exceeding 40 days, as the inspector
specifies".
And by s.42(1)(t) power was conferred on an inspector to "seize and detain any
stock which have been driven or moved contrary to (the) Act" (5).


The program for Neutral Junction and Banka Banka
10.  The Mengels entered into a program with respect to Neutral Junction,
apparently in 1983 as part of the early campaign initiated by the Territory.
It seems that this was treated as an approved program for the purposes of the
national campaign and, in February 1985, Neutral Junction was classified under
s.27(1) of the Act as "tested negative" for both brucellosis and tuberculosis.
Banka Banka was classified as "confirmed free" for both diseases sometime
before its purchase by the Mengels in 1987.  The Mengels did not enter into
any program for Banka Banka.


11.  The terms of the program entered by the Mengels in 1983 suggest that it
may have been intended to operate until 1992.  However, the program did not
specify any action that had to be taken after 1987.  At one point in his
judgment on the trial of this matter, Asche CJ appeared to be saying no more
than that the evidence did not permit of a finding that there was an approved
program or, in terms of par.(a) of the Gazette notice, "an eradication
programme approved for the purposes of (the national) campaign" current for
either of the Mengels' properties in September 1988.  However, in other
passages, his Honour seemed to assume that there were no approved programs in
existence at the time. He approached this issue on the basis that it was for
the Territory and the Inspectors to establish that there was an approved
program current, rather than for the Mengels to establish that there was not.
The justification for this approach is not apparent.  In the Court of Appeal
Priestley J proceeded on the basis that the Mengels' herds were not subject to
an approved program at the relevant time.  Thus this aspect of the case is
left in a somewhat unsatisfactory state. However, in the appellants' written
submission to this Court it is said that, whereas the Inspectors believed that
the imposition of movement restrictions was authorized, the herds "were not at
the time 'subject to an eradication programme approved for the purposes of the
... campaign'".  The matter must be dealt with accordingly.


The actions of the Inspectors
12.  There were dry conditions at Neutral Junction during the 1987/88 season
and about 2,500 head of cattle were moved to Banka Banka. Conditions there
were not entirely as hoped and some cattle had to be returned to Neutral
Junction.  In August or September 1988 the Mengels began a muster on both
stations, intending to sell some 4,400 head of cattle.  It was important for
the sales to take place so that a payment could be made to the bank and, also,
so that the lot of the remaining cattle could be alleviated in the prevailing
dry conditions.  They intended to sell some cattle to the abattoirs and some
as breeders. They were hoping to get good prices by selling the breeders at
Alice Springs for a southern market.  This, they thought, could only be done
if the cattle were tested and declared free of brucellosis.  It has since
emerged that testing was not required, at least if the cattle were sold in the
Territory or in Queensland.  On 3 September 1988, one of the Inspectors, Mr
Baker, came and took blood samples from 95 heifers mustered at Neutral
Junction and intended for sale as breeders. These heifers were among those
agisted at Banka Banka and returned to Neutral Junction.  The samples were
sent to Alice Springs for testing. There was one positive reaction.


13.  On 6 September, Mr Baker informed the Mengels of the results of the tests
and also informed them that there were restrictions on the movement of their
cattle from Neutral Junction and Banka Banka.  It is not clear precisely what
was said, but Mr Baker intended them to understand, as they did, that there
were no restrictions on the movement of spayed females or steers but their
breeder cattle could only be moved to an abattoir for immediate slaughter.
They also understood, if not then within a day or two, that the restriction
would apply until it was established that the reactor was not infected and
that that would involve culture testing and would take approximately 30 days.
And it is clear that they believed that failure to comply with the restriction
would constitute an offence under the Act, although they did not concern
themselves with its precise nature or, indeed, with the legal basis for the
restriction.


14.  The Inspectors did not think it likely that the reactor was infected.
Moreover, they knew of the predicament facing the Mengels if they could not
sell their cattle as planned.  However, they were of the view that the Act or
the approved programs imposed restrictions once a reactor was found in a herd.
In this regard, it seems that they assumed that the Mengels were party to a
current approved program.  As earlier indicated, the Mengels entered into a
program for Neutral Junction in 1983, however the trial judge was not able to
make a finding that there was an approved program for either property current
in September 1988. There is no doubt that, had there been an approved program,
the Inspectors would have been obliged to change the status of the cattle to
"suspect" to comply with the campaign and, in that event, the cattle would
have been subject to movement restrictions in accordance with par.(a) of the
Gazette notice.


15.  The Mengels arranged for another blood sample to be taken from the
reactor before it was taken away for culture testing and for that sample to be
sent to Adelaide where a different test was in use.  After discussing the
matter with an officer of the Department, they arranged for other cattle to be
tested by the Department in the hope that, if there was no further reaction,
it would be accepted that the reactor was not, in fact, infected.


16.  On or about 9 September, before the further tests were conducted, the
regional veterinary officer, Mr Wilson, made an entry in the Department's
computer records indicating that the status of the cattle at Neutral Junction
and Banka Banka was "suspect".  It is not clear whether the entry was made
with s.27(2) in mind or simply for administrative purposes.


17.  Further tests were conducted on 950 animals at Banka Banka on 11 and 13
September.  There were 22 reactors.  Again, it seems, the Inspectors did not
think it likely that the animals were infected.  However, they again informed
the Mengels that their cattle were subject to the same movement restrictions.
The Mengels arranged for further blood samples to be taken from the reactors
and for those samples to be sent to Adelaide.  However, they refused to hand
the reactors over for culture testing until such time as the Department
received the results from the culture testing of the first reactor.


18.  By 26 September, a technical officer at the Alice Springs testing
laboratory believed it unlikely that the cattle were infected but he wanted to
make sure by culture testing.  As a result, Mr Tabrett sent a facsimile
message to Mr Baker which he, Mr Baker, passed on to the Mengels on or about
30 September and which stated that it was necessary to culture test 13 of the
cattle that had reacted positively to serum testing on 11 and 13 September.
The message reiterated that the cattle were subject to movement restrictions -
in fact, it said they were quarantined.  By this time, the Mengels had been
informed that the first sample that they had sent to Adelaide had tested
negative and, for this and, perhaps, other reasons, they continued to refuse
to hand over the reactors.  They were eventually handed over to the Department
on 25 October.


19.  On or about 7 November the Mengels received information from Adelaide
that, for practical purposes, brucellosis could be ruled out.  A few days
after this, the Department came to the same conclusion and, on 14 November,
informed the Mengels that the movement restrictions were lifted.


20.  It remains to be noted that, on several occasions prior to 14 November,
the Mengels spoke to the Inspectors and, on 20 October, approached the
Minister to see if something could be done to get them out of their
predicament.  Nothing came of their requests and they complied with the
restrictions that had been communicated to them. Thus, they did not sell their
breeder cattle as planned and, because of the dry conditions, they had to
import feed and arrange for cattle to be agisted.  And, to meet their
obligations to the bank, they had to sell some of their steers earlier than
planned.


The proceedings and the issues in the appeal
21.  The Mengels formulated their claim against the Inspectors and the
Territory in several different ways, relying on various causes of action.  At
first instance, Asche CJ held that they were entitled to succeed on one and
only one cause of action, namely, an action on the case based on the decision
in Beaudesert Shire Council v. Smith (6). His Honour entered judgment for the
Mengels in the sum of $305,371 plus interest, holding that they could not
recover their losses in full because their refusal to hand over the reactors
for culture testing amounted to a failure by them to mitigate the damage
caused by the actions of the Inspectors.  The Territory and the Inspectors
appealed to the Northern Territory Court of Appeal and the Mengels
cross-appealed. The appeal was dismissed and the cross-appeal allowed, but
only on the question whether damages should have been reduced.  The judgment
was increased to $425,125 plus interest.


22.  The Court of Appeal rejected an argument that Beaudesert should not be
followed and held that the Mengels were entitled to succeed on an action on
the case based on that decision.  As well, Priestley J was of the view that
they were entitled to succeed on an action on the case "very similar to that
on which Beaudesert was based, but not confined to it" which, in his Honour's
view, was recognized by Dixon J in James v. The Commonwealth (7).  Angel J
agreed generally with the judgment of Priestley J, and with his Honour's
analysis of James v. The Commonwealth, but expressed the view that liability
rested on a broader consideration, namely, "the place of individual liberty of
action within our society under the constitutional principle of the rule of
law".  Thomas J agreed with Angel J and with Priestley J.


23.  In this Court, the appellants argue that Beaudesert was wrongly decided
and that there is no cause of action of the kind described in that case.  And
they say there is no cause of action of the kind identified by Priestley J or
of the kind identified by Angel J in the Court of Appeal.  But if they are
wrong on these matters, they argue that none of these causes of action is made
out.  They make no alternative complaint with respect to the decision of the
Court of Appeal to increase damages.


24.  For their part, the Mengels argue that they were entitled to succeed in
their action, either because of the decision in Beaudesert or because of the
separate causes of action identified by Priestley and Angel JJ in the Court of
Appeal.  They contend also that they were entitled to succeed on their claim
for misfeasance in public office, the mental element of which is made out,
they argue, if the public officer either knows or ought to know that he or she
is acting without authority.  This claim was rejected by the trial judge, and
the Court of Appeal saw no reason to disturb that rejection.  The Mengels do
not contend that they were entitled to succeed on any of the other causes of
action on which they relied at first instance although, in the course of
argument, it was asserted that, if it were established that the Inspectors
ought to have known that they were acting without authority, that would also
entitle the Mengels to succeed in negligence.


Findings no longer in issue
25.  It is now clear that the Inspectors were acting outside the scope of
their authority when they informed the Mengels that their cattle were subject
to movement restrictions.  It is necessary to explain the findings that lead
to this conclusion.


26.  The appellants have never suggested any authority for the Inspectors'
action other than the Gazette notice.  In this regard, they claimed that
par.(a) of the notice imposed movement restrictions which the Inspectors
communicated to the Mengels.  They did not at any stage rely on s.42(1)(l) of
the Act, which confers power to impose movement restrictions on cattle which a
stock inspector has reasonable cause to believe are infected, apparently
because the Inspectors did not think they were infected, or, at least, did not
think that likely.


27.  At first instance, Asche CJ construed par.(a) as applying only to herds
which were subject to an eradication program, that is, in respect of which
there was a current approved program.  As earlier indicated, his Honour held
that, on the evidence, he could not find that there was an approved program
current for either of the Mengels' properties in September 1988 - hence, the
finding that the Inspectors had no authority to impose movement restrictions.
This finding exposes the error in what the parties thought had happened and in
the basis on which the Mengels conducted their case at first instance, namely,
that movement restrictions had been imposed by the Inspectors either directly
under s.42(1)(l) of the Act or indirectly by changing the status of the
Mengels' holdings or herds to "suspect".


28.  The construction which Asche CJ placed on par.(a) of the Gazette notice
was confirmed by the Court of Appeal and the appellants now accept that it is
correct.  They also accept that the evidence did not enable his Honour to make
a finding that there was an approved program current at the relevant time.
Thus, it is no longer in issue that the Inspectors were acting outside the
scope of their authority.


29.  It was said in the course of argument that there was no longer any issue
with respect to the finding by Asche CJ that there was no malice on the part
of the Inspectors.  More precisely, his Honour found that the Inspectors
neither knew that they lacked authority for their actions nor intended to harm
the Mengels.  As they were aware of the predicament which the Mengels faced if
they could not sell their cattle as planned, this latter aspect of the finding
is, perhaps, better expressed in terms of the Inspectors not being actuated by
an intention to harm the Mengels.


30.  The Mengels accept that the Inspectors did not have actual knowledge that
they were acting outside the scope of their authority but they argue that the
finding leaves open the question whether they had constructive knowledge in
the sense that they should have known.  And they say that constructive
knowledge of that kind is sufficient, in the circumstances, to establish
misfeasance in public office.


The principle in Beaudesert
31.  It was held in Beaudesert that "independently of trespass, negligence or
nuisance but by an action for damages upon the case, a person who suffers harm
or loss as the inevitable consequence of the unlawful, intentional and
positive acts of another is entitled to recover damages from that other" (8).
It was on the basis of this principle that Asche CJ found for the Mengels at
first instance.


32.  There are two problems in this case which arise out of the statement of
principle in Beaudesert.  The first concerns "unlawful act".  Is it an act
forbidden by law or, simply, an unauthorized act in the sense of an act that
is ultra vires and void?  An analysis of Beaudesert would suggest that it is
the former.  In that case, Mr Smith, who was licensed to pump water from a
waterhole in a river, suffered damage when the defendant Council altered its
flow by taking gravel from the river bed.  There was a statutory prohibition
on the taking of gravel except with a permit which the Council did not have.
Thus, the act in question was one forbidden by law.  Moreover, it was said in
the Court's reasons for judgment that, if what the Council did was actionable
at the suit of Mr Smith, "liability must depend upon the broad principle that
the Council intentionally did some positive act forbidden by law which
inevitably caused damage to Smith by preventing the continuing exercise of his
rights as a licensee" (9) (emphasis added).  And the cases in which the issue
has since been considered have uniformly favoured the view that the Beaudesert
principle applies only to acts forbidden by law (10).


33.  The second difficulty relates to "inevitable consequence".  As a matter
of ordinary language, "inevitable" suggests something that is bound to happen,
not merely something likely to happen in the ordinary course.  It is
convenient to observe at this point that that raises a question as to the
relationship between inevitable consequence and foreseeability.  It will not
often be the case that something that is bound to happen will not also be
foreseeable.  Yet there is nothing in the facts of Beaudesert, at least so far
as they appear in the Court's reasons for judgment, constituting a finding
that it was foreseeable that the removal of the gravel would either alter the
flow of the river or cause damage to those licensed to pump water from it.


34.  It is not possible to discern from the facts of this case an act
forbidden by law which caused harm to the Mengels.  Nor is it easy to discern
an unauthorized act.  At first instance, Asche CJ proceeded on the basis that
the act which caused harm was the unauthorized imposition of movement
restrictions, but what happened was that the Inspectors told the Mengels that
there were movement restrictions when, in fact and in law, there were none.
That did not involve an act forbidden by law in any relevant sense.  Nor did
it require authority in a way justifying its description as "unauthorized".


35.  In the Court of Appeal, Priestley J identified the unlawful act which
caused harm as "purporting to change the status of the properties of persons"
(presumably, by the making of the entry in the Department's computer records
to the effect that the status of the Mengels' cattle was "suspect") combined
with "directing people to do things ... where disobedience to the directions
exposes the persons, if the directions are authorised, to personal penalty and
the seizure of their property" which, in another part of his judgment, his
Honour conveniently identified as "an implied threat of penalty".  There are a
number of difficulties in this approach.  In the first place, the computer
entry was made by Mr Wilson, the regional veterinary officer, and not by
either of the Inspectors.  Moreover, it is difficult to see how the "implied
threat" to which Priestley J referred could be described as a "positive act"
for the purposes of the Beaudesert principle.  As well, it is far from clear
that the making of the computer entry or the making of an implied threat of
penalty requires authority in any way that would warrant either being
described as "unauthorized".  And even if they are properly described as
"unauthorized", there is a further difficulty in the notion that they
inevitably caused damage.  Damage was suffered when the Mengels acted on the
basis that their cattle were subject to the movement restrictions communicated
to them and, even if it is assumed that that was likely to happen in the
ordinary course, there is nothing to suggest that it was bound to happen.


36.  Although it was argued for the appellants that there was no unlawful act
on the part of the Inspectors or, alternatively, none that inevitably caused
damage, the primary argument was that Beaudesert was wrongly decided.  The
statement of principle embodied in Beaudesert has been expressly rejected in
the United Kingdom (11) and in New Zealand (12) and the decision has been
widely criticized on the basis that it is neither supported by the authorities
cited in the decision nor in harmony with the law relating to tortious
liability as it was then or as it has since developed (13).


37.  This case aside, there is no reported case in which Beaudesert has been
applied (14).  Prima facie, at least, if Beaudesert does proceed from or does
involve an error of principle, it is appropriate for this Court either to
reformulate the principle or to indicate that it is no longer good law.  In
this regard, it is sufficient to note that, apart from the fact that it was a
unanimous decision and, perhaps, has not led to any great inconvenience,
Beaudesert is a case which satisfies the criteria which determine whether this
Court should review or depart from an earlier decision (15).


The principle in Beaudesert and earlier authority
38.  It is clear that the principle stated in Beaudesert is one which had
neither been formulated nor suggested in earlier cases.  Of itself, that is of
no particular significance.  The common law consists of judicially formulated
principles and, necessarily, there is always a first formulation.  Moreover,
the development of the common law proceeds on the basis of the identification
and enunciation of principles that unify and explain earlier decisions.  And
that is what Beaudesert purported to do.


39.  In Beaudesert, the Court referred to seven earlier cases and concluded
that, although "(i)t (was) not ... possible to adopt a principle wide enough
to afford protection in all circumstances of loss to one person flowing from a
breach of the law by another", there was, nonetheless, "a solid body of
authority which protects one persons's (sic) lawful activities from the
deliberate, unlawful and positive acts of another" (16).  The seven earlier
decisions to which reference was made do provide some general support for that
proposition.  However, the extent of the support depends, in large measure, on
what is involved in the notion of "deliberate, unlawful and positive acts".
It is clear that some of the cases involved acts which, although properly
described as "deliberate, unlawful and positive", were intentional in the
sense that they were directed against the plaintiff or the activity in which
he was lawfully engaged and not merely intentional in the Beaudesert sense of
an intentional act which inevitably caused harm. The position can conveniently
be illustrated by reference to two of the cases referred to in Beaudesert,
namely Garret v. Taylor (17) and Tarleton v. M'Gawley (18).


40.  In Garret v. Taylor, as Beaudesert records, the plaintiff succeeded in an
action for losing the benefit of his quarries when "the defendant threatened
violence to the extent of committing an assault upon employees and customers
of the plaintiff ... whereupon 'they all desisted from buying, and the others
from working'" (19).  However, the pleadings make it clear that the actions of
the defendant were deliberate, not merely in the sense of being intentional,
but in the sense of being directed against the plaintiff, it being asserted in
the pleadings that the defendant engaged in the acts in question "to discredit
and to deprive (the plaintiff) of the commodity of the said mine" (20).


41.  Similarly, it is clear that the acts considered in Tarleton v. M'Gawley
were deliberate in the sense of being purposely directed, if not at the
plaintiff, at activities in which he was lawfully engaged. Again as Beaudesert
records, it was held in that case "that an action on the case lay against the
master of a vessel for purposely firing a cannon at negroes and thereby
preventing them from trading with the plaintiff" (21).  It clearly appears
from the report of that case that that was done purposely in the sense of
"contriving and maliciously intending to hinder and deter (them) from trading"
(22).


42.  Three other decisions referred to in Beaudesert also involved acts which,
prima facie at least, would seem to have been directed against the plaintiff
or against the activities in which he was lawfully engaged.  In The Earl of
Shrewsbury's Case (23) mention is made of a case in which the plaintiff was
the Abbot of Evesham who "had a fair in S. with all that belonged to a fair",
and the defendant "with force and arms disturbed the people coming to the fair
... by which the plaintiff lost his toll" (24).  And in Carrington v. Taylor
(25), the defendant disturbed an ancient decoy for wild fowl by firing near
it, a fact situation very similar to that involved in Keeble v. Hickeringill
(26). In that latter case, Holt CJ proceeded on a basis which clearly suggests
that what was under consideration were acts directed against a plaintiff or
against activities in which he was lawfully engaged. Thus, his Lordship said
(27): 
  "where a violent or malicious act is done to a man's occupation, profession,
or way of getting a livelihood; there an action lies in all cases".


43.  Reliance was placed on two other cases in Beaudesert, namely Mogul
Steamship Company v. McGregor, Gow and Co. (28) and Whaley v. Laing (29).  So
far as Mogul Steamship is concerned, it is more accurate to say that reliance
was placed on an assumption made in some of the judgments in that case.  It
was held in Mogul Steamship that there was no cause of action for economic
loss occasioned by acts done pursuant to an agreement if the acts were done
for a lawful object and did not involve unlawful means.  It was said in
Beaudesert that there was an assumption in some of the judgments in Mogul
Steamship, especially those of Bowen LJ and Fry LJ (30), that "had the acts of
the defendants been unlawful - even in relation to third parties - and the
economic loss to the plaintiffs sprung from such unlawful acts, the plaintiffs
would have had their remedy" (31).  Given the decision in Mogul Steamship that
the plaintiffs had no cause of action, it is difficult to regard an assumption
that there would have been a cause of action in quite different circumstances
as an authoritative statement of the law in that regard.


44.  In Whaley v. Laing there is support in the judgment of the Court of
Exchequer, and in those of Willes J and Crowder J in the Court of Exchequer
Chamber, for the proposition that the defendant was liable to the plaintiff
for damage occasioned to his boilers in consequence of the defendant's
unlawful fouling of a canal from which the plaintiff had permission to feed
his boilers (32).  There was, however, a divergence of opinion on this issue
in the Exchequer Chamber where the bench was evenly divided (33).  In these
circumstances, the case is of limited authority.


45.  The cases referred to in Beaudesert do not provide authoritative support
for the wide principle there laid down:  Mogul Steamship and Whaley v. Laing
are of limited authoritative value and the other cases are concerned, in the
main, with acts directed against a plaintiff or the lawful activities in which
he was engaged and not merely with intentional acts which inevitably caused
harm.


Intentional and negligent infliction of harm in the law of torts
46.  It is the intentional element of the cause of action described in
Beaudesert that has given rise to most concern.  More precisely, it is that
the principle as formulated permits of liability notwithstanding that there is
neither negligence nor an intention to inflict harm.  So far as intention is
concerned, the cause of action does not depend on an intention to harm the
plaintiff, but on the doing of an act which is intentional and the inevitable
consequence of which is to cause loss to the plaintiff (34).


47.  It will later be necessary to say something of the action for breach of
statutory duty.  But putting that action aside, the recent trend of legal
development, here and in other common law countries, has been to the effect
that liability in tort depends on either the intentional or the negligent
infliction of harm.  That is not a statement of law but a description of the
general trend, the most recent example of which in this country is to be seen
in Burnie Port Authority v. General Jones Pty. Ltd. (35)  In that case it was
held that, subject to one qualification, the special rule in Rylands v.
Fletcher (36) imposing strict liability for the escape of dangerous substances
involved in the non-natural use of land had been absorbed in the general law
of negligence.  The qualification was that there might be cases in which "it
is preferable to see a defendant's liability in a Rylands v. Fletcher
situation as lying in nuisance (or even trespass) and not in negligence" (37).


48.  Moreover, developments involving the so-called "economic torts" (which
the cause of action described in Beaudesert is sometimes said to be (38)) have
largely proceeded on the basis that liability depends on the intentional
infliction of harm.  However, the "economic torts" emerged only in the second
half of the last century (39) and, even now, the law in that regard is far
from settled.  The first development of significance was the recognition, in
Lumley v. Gye (40), of the tort of intentional interference with contractual
rights.  Subsequent developments in the United Kingdom have, to some extent,
impinged upon the intentional element of that tort.  Liability does not depend
on whether there is a predominant intention to injure (41) and it has been
held that constructive knowledge of the terms of a contract is sufficient, so
that a defendant may be liable if he or she recklessly disregards the means of
ascertaining those terms (42).  But it is still accurate to describe the tort
as one that depends on an intention to harm for that is necessarily involved
if a person knowingly interferes with the enjoyment by another of a positive
legal right, whether such knowledge is actual or constructive.


49.  Other early developments saw the recognition of the torts of intimidation
and conspiracy, both of which require an intention to cause economic harm
(43).  More recent developments in the United Kingdom suggest the emergence in
that country of a tort of interference with trade or business interests by an
unlawful act directed at the person injured, although not necessarily done for
the purpose of injuring his or her interests (44).  It seems to be accepted
that this embryonic or emerging tort does not extend to all unlawful acts and
that, at least in that regard, it is in need of further definition (45).  So
far as this emerging tort depends on an unlawful act, there is an obvious
similarity with the cause of action recognized in Beaudesert.  However, there
is an obvious difference with respect to intention. The emerging tort requires
that the unlawful act be directed at the person injured whereas there is no
like requirement in Beaudesert.


The principle in Beaudesert, negligence and the action for breach of statutory
duty
50.  As earlier indicated, the decision in Beaudesert has been criticized as
not in harmony with the law as it was when the decision was given and as it
has since developed.  Apart from the economic torts to which reference has
already been made, it is sufficient to mention only the relationship between
the cause of action described in Beaudesert and two others, namely, the action
for negligence and the action for breach of statutory duty.


51.  The Beaudesert principle allows, at least as a matter of legal theory,
that there may be liability notwithstanding that, in the circumstances, the
plaintiff is under no duty of care to avoid harm to the plaintiff.  And
liability does not depend on an intention to harm. There may be cases
involving breach of a duty of care which fall within the Beaudesert principle
but, to that extent, the principle serves no useful purpose.  And if there is
no duty of care, it is anomalous, to say the least, to hold a person liable
for harm which is not intentional and which he or she is under no duty to
avoid.


52.  There is an obvious similarity between the cause of action recognized in
Beaudesert and the action for breach of statutory duty which also allows that
there may be liability regardless of negligence and regardless of intention to
injure.  But there is some difficulty in reconciling these causes of action by
reason that there is no action for breach of statutory duty unless the
legislation confers a right on the injured person to have the duty performed
(46).  If no right is conferred, the general rule is that there is no
liability in damages. The principle stated in Beaudesert runs counter to that
rule, notwithstanding that the limitations on the action for damages for
breach of statutory duty were expressly acknowledged in the decision in that
matter (47).  It was that acknowledgment that led Mason J to conclude in
Kitano v. The Commonwealth, rightly in our view, that to succeed in an action
on the case based on Beaudesert, a plaintiff "must show something over and
above what would ground liability for breach of statutory duty if the action
were available" (48).  Nothing in Beaudesert, apart perhaps from the
inevitability of damage, suggests what that might be.  And as has been seen,
there are difficulties with inevitability as a legal concept, particularly its
relationship with foreseeability.


Beaudesert should not be followed
53.  The lack of authoritative support for the principle stated in Beaudesert,
the difficulties associated with the notions of "unlawful act" and "inevitable
consequence", and the further difficulty of reconciling liability under that
principle with the limitations upon liability for negligence and for breach of
statutory duty and with the general trend of legal development confining
liability to intentional or negligent infliction of harm compel the conclusion
that Beaudesert should no longer be followed.


The Beaudesert principle should be overruled, not reformulated
54.  Developments in the United Kingdom suggest the emergence in that country
of tortious liability for harm caused by an unlawful act (more precisely, some
unlawful acts) directed against a plaintiff.  It may be that the cases
referred to in Beaudesert support an approach which would lead to a similar
result in this country.  But that is not a matter that falls for consideration
in this case.  Rather, it was argued on behalf of the Mengels that the
principle should be reformulated to impose liability for unlawful acts causing
harm when harm is foreseeable and is, in fact, foreseen.  Although there are
no findings on the matter at first instance, it may be accepted that the harm
suffered by the Mengels was both foreseeable and foreseen, given that the
Inspectors knew of the predicament that the Mengels faced if they could not
sell their cattle as planned.


55.  The reformulation which was advanced on behalf of the Mengels suffers
from the same critical defects as the Beaudesert principle.  It is not
supported by authority, it runs counter to the trend of legal development and,
also, counter to the limitations which have been placed on liability for
damages flowing from breach of statutory duty. Further, the reformulation
serves no useful purpose in cases where there is a duty of care to avoid
foreseeable harm and is anomalous in cases where there is not, at least if the
plaintiff is not actuated by an intention to harm.  Subject to the
qualification that there may be cases in which there is liability for harm
caused by unlawful acts directed against a plaintiff or the lawful activities
in which he or she is engaged, the Beaudesert principle should be overruled.


Misfeasance in public office
56.  It is convenient to consider misfeasance in public office before turning
to the separate causes of action identified by Priestley and Angel JJ in the
Court of Appeal, if only for the reason that the former is regarded as
"well-established" (49) and any consideration of extended liability along the
lines adopted in the Court of Appeal must depend, to some extent, on whether
existing principle is unduly narrow.


57.  It was recognized as recently as 1973 that the precise limits of the tort
of misfeasance in public office were then undefined (50).  In important
respects, that is still true.  However, the weight of authority here (51) and
in the United Kingdom (52) is clearly to the effect that it is a deliberate
tort in the sense that there is no liability unless either there is an
intention to cause harm or the officer concerned knowingly acts in excess of
his or her power.  There are three cases which are sometimes said to support a
wider liability. The first is Brasyer v. Maclean (53).  That case was referred
to by Smith J in Farrington v. Thomson and Bridgland, which is generally
regarded as one of the seminal cases on misfeasance in public office, in
connection with the statement that "in some cases at least, ... it is
sufficient that the act was a breach of his official duty, even though it is
not shown either that he realized this or that he acted maliciously" (54).
Brasyer v. Maclean involved a sheriff's false return of rescue upon a writ of
capias ad respondendum and it may have been decided on the basis that the
sheriff was to be taken as having the same knowledge as the bailiffs to whom
he entrusted its execution. Whether or not that is so, the suggestion made in
Farrington that Brasyer laid down a general rule extending liability beyond
acts intended to cause harm or acts known to be beyond power, has been
implicitly rejected in other cases (55) and explicitly rejected in Pemberton
v. Attorney-General (56).  The other two cases which are sometimes said to
support a wider liability (57) are Wood v. Blair and Helmsley Rural District
Council (58) and McGillivray v. Kimber (59). However, liability was admitted
in the first case (60) and there was a strong suggestion that the public
officers were motivated by malice in McGillivray v. Kimber (61).


58.  One aspect of misfeasance in public office that lacks precise definition
is whether, assuming damage, it is sufficient to establish that the public
officer knows that he or she is acting without authority or whether there is
some additional requirement.  For example, it was suggested in Bourgoin S.A.
v. Ministry of Agriculture (62) that there is an additional requirement that
damage be foreseeable, and it was said in Tampion v. Anderson (63) that the
plaintiff must be "the member of the public, or one of the members of the
public, to whom the holder of the office owed a duty not to commit the
particular abuse complained of".


59.  There is a statement in Farrington which might be thought to deny any
requirement over and above knowledge that the act is beyond power.  It was
said in that case that "if a public officer does an act which, to his
knowledge, amounts to an abuse of his office, and he thereby causes damage to
another person, then an action in tort for misfeasance in a public office will
lie against him at the suit of that person" (64). However, there is no
indication as to what is comprehended in the expression "an abuse of his
office" and Smith J, whose decision it was, was a member of the Full Court
which later stated in Tampion v. Anderson that there was, additionally, a
requirement that there be a duty to the plaintiff.  Moreover, the act
complained of in Farrington, namely, that of ordering the closure of a hotel,
was one which, if complied with, would necessarily result in damage.


60.  The cases do not establish that misfeasance in public office is
constituted simply by an act of a public officer which he or she knows is
beyond power and which results in damage.  Nor is that required by policy or
by principle.  Policy and principle both suggest that liability should be more
closely confined.  So far as policy is concerned, it is to be borne in mind
that, although the tort is the tort of a public officer, he or she is liable
personally and, unless there is de facto authority, there will ordinarily only
be personal liability (65).  And principle suggests that misfeasance in public
office is a counterpart to, and should be confined in the same way as, those
torts which impose liability on private individuals for the intentional
infliction of harm.  For present purposes, we include in that concept acts
which are calculated in the ordinary course to cause harm, as in Wilkinson v.
Downton (66), or which are done with reckless indifference to the harm that is
likely to ensue, as is the case where a person, having recklessly ignored the
means of ascertaining the existence of a contract, acts in a way that procures
its breach.


61.  It may be that analogy with the torts which impose liability on private
individuals for the intentional infliction of harm would dictate the
conclusion that, provided there is damage, liability for misfeasance in public
office should rest on intentional infliction of harm, in the sense that that
is the actuating motive, or on an act which the public officer knows is beyond
power and which is calculated in the ordinary course to cause harm.  However,
it is sufficient for present purposes to proceed on the basis accepted as
sufficient in Bourgoin, namely, that liability requires an act which the
public officer knows is beyond power and which involves a foreseeable risk of
harm.


62.  If misfeasance in public office is viewed as a counterpart to the torts
imposing liability on private individuals for the intentional infliction of
harm, there is much to be said for the view that, just as with the tort of
inducing a breach of contract, misfeasance in public office is not confined to
actual knowledge but extends to the situation in which a public officer
recklessly disregards the means of ascertaining the extent of his or her
power.  However, that is not what was put in this case.  The argument was that
it is sufficient that the officer concerned ought to have known that he or she
lacked power.


63.  Once foreseeability is accepted as a requirement in cases based on actual
knowledge, it follows that the argument that a public officer is liable for
misfeasance if the officer ought to know that he or she lacks power is, for
practical purposes, the same as saying that the officer is under a duty not to
exceed his or her power if there is a risk of foreseeable harm.  Indeed, so
much was implicit in the statement of counsel for the Mengels that they were
also entitled to succeed in negligence if the Inspectors were liable for
misfeasance in public office by reason that they ought to have known that they
were acting without authority.


64.  If it were the case that governments and public officers were not liable
in negligence, or that they were not subject to the same general principles
that apply to individuals, there would be something to be said for extending
misfeasance in public office to cover acts which a public officer ought to
know are beyond his or her power and which involve a foreseeable risk of harm.
But in this country governments and public officers are liable in negligence
according to the same general principles that apply to individuals.  And, in
that context, the argument that misfeasance in public office should be
reformulated to cover the case of a public officer who ought to know of his or
her lack of power can be disposed of shortly.  So far as unintended harm is
concerned, the proposed reformulation suffers the same defect in relation to
the law of negligence as does the principle in Beaudesert, namely, it serves
no useful purpose if there is a duty of care to avoid the risk in question and
is anomalous if there is not.  And it serves no purpose if the public officer
is actuated by an intention to harm the plaintiff for that constitutes
misfeasance in public office whether or not the officer knows that he or she
lacks authority (67).


Negligence
65.  Given that the argument made on behalf of the Mengels with respect to
misfeasance in public office extended to an assertion of their entitlement to
succeed also in negligence, it is appropriate to note that it is not open to
them to make a case in negligence based on the proposition that the Inspectors
should have known that their actions were unauthorized.  So far as the
knowledge of the Inspectors is concerned, the critical information was not the
terms of the Gazette notice or, even, the provisions of the Act, but whether
there was an approved program current in September 1988.  To make good the
assertion that the Inspectors should have known that there was not an approved
program, it is necessary for there to be a positive finding that there was no
approved program.  The finding did not go that far.  Rather, the ruling was
that the evidence did not permit of the contrary finding though regard must be
had to what we said earlier concerning the appellants' position on appeal.


66.  The Mengels pleaded negligence both further to and in the alternative to
the other claims made by them.  The plea of negligence was that there was a
duty of care on the part of the Territory and the Inspectors not to
"purportedly restrict movement of cattle from either of the (Mengels') said
properties without first ensuring that a reactor beast was subsequently
confirmed positive by irrefutable and unmistakable scientific process, and in
any event without first ensuring that there was a real possibility that any
remaining cattle or class of cattle at Neutral Junction intended for immediate
sale were infected with Brucellosis".


67.  The trial judge expressed the view that the question reduced itself to
whether the Inspectors acted with reasonable care.  He concluded:
  "In my view and as a question of fact they were not in breach of such duty".


68.  By their notice of contention in the Court of Appeal, the Mengels
contended that "(h)is Honour erred in finding that the Appellants did not act
unreasonably".  Notwithstanding this, the issue of negligence was not
contested in the Court of Appeal, but was raised again by the notice of
contention in this Court.  In the course of argument, counsel for the Mengels
conceded that "negligence as such" was not an issue, but referred to his
submission that, for the purposes of the tort of misfeasance in public office,
constructive knowledge of lack of authority was sufficient - that is, it is
sufficient that a defendant ought to have known that he or she was acting
without authority.  The issue raised by an allegation of constructive
knowledge was, he suggested, the same issue as might be raised by a plea of
negligence, but as we understood the argument, that issue was raised in the
context of misfeasance in public office and not in the context of negligence.


69.  The submission having been rejected that constructive knowledge of lack
of authority is sufficient knowledge to constitute the tort of misfeasance in
public office, that issue disappears.  Having regard to the rejection by the
trial judge of negligence as pleaded by the Mengels and their failure to
pursue that matter on appeal, the Mengels cannot now succeed upon the ground
that the trial judge erred in finding that the Inspectors were not negligent.


The cause of action discussed in James v. The Commonwealth
70.  In the Court of Appeal, Priestley J considered various remarks made by
Dixon J in James v. The Commonwealth (68) and, on the basis of those remarks,
formulated a cause of action in these terms: 
  "a plaintiff has an action on the case for damage suffered because in face
of an express or implied threat by governmental authority of unlawful
interference with the plaintiff's property or of unlawful prosecution of the
plaintiff, the plaintiff has felt compelled to refrain, and has refrained, to
the plaintiff's loss, from dealing with the plaintiff's goods".


71.  In James v. The Commonwealth, the plaintiff claimed damages on two
separate grounds.  The first was that the Commonwealth or its officers had
induced common carriers to commit a breach of their duty to carry produce
which he, the plaintiff, wished to sell, thereby causing him loss (69).  That
is a claim analogous to that considered in Lumley v. Gye (70) and it was
determined by reference to the same principles that determine liability for
procuring a breach of contract (71).  Clearly, what was said on that aspect of
the claim can have no direct bearing on this case.  However, there are some
passages which have an indirect bearing, to which it will later be necessary
to refer.


72.  The second basis of the claim in James v. The Commonwealth was that the
Commonwealth or its officers compelled the plaintiff to discontinue his trade
by unlawful threats that his goods would be seized.  In relation to this
claim, Dixon J (72) adopted the statement in Salmond's Law of Torts (73) that:

  "Although there seems to be no authority on the point, it cannot be doubted
that it is an actionable wrong intentionally to compel a person, by means of a
threat of an illegal act, to do some act whereby loss accrues to him:  for
example, an action will doubtless lie at the suit of a trader who has been
compelled to discontinue his business by means of threats of personal violence
made against him by the defendant with that intention".
His Honour approached this aspect of the claim on the basis that, as goods had
been seized on earlier occasions, it might be supposed that the Commonwealth
had "manifested an intention of seizing the plaintiff's goods if he shipped
them" (74).  In the result, however, he found against the plaintiff because he
"in fact was not influenced by the fear of seizure and it was not the threats
supposed that operated to restrain his trading" (75).  Thus, his Honour had no
need to consider, and did not consider, the intentional element of the tort
which was clearly recognized in the statement of principle which he adopted.


73.  The cause of action identified by Priestley J involves no intentional
element and, to that extent, is clearly contrary to the principle adopted by
Dixon J in James v. The Commonwealth.  There are also difficulties associated
with the notion of liability for an "unlawful prosecution" if that extends
beyond malicious prosecution or abuse of process.  Moreover, there is implicit
in the principle espoused by Priestley J an assumption that the assertion that
certain legal consequences will attend a course of action amounts to a threat
for the purposes of the principle stated in Salmond's Law of Torts.  That
assumption cannot be maintained in the face of what was said by Dixon J in
relation to the first aspect of the claim considered in James v. The
Commonwealth.


74.  In discussing the claim that Commonwealth officers had induced breaches
of the obligations of common carriers, Dixon J noted that "inducement (was) to
be distinguished from advice or persuasion" (76). In that context, his Honour
observed that what had occurred in that case was "an appeal to the law as it
was conceived to exist" with "(t)he threat or inducement consist(ing) in a
tacit or implied intimation that the claims of the Government might be
enforced by resort to legal process" (77).  His Honour went on to state that,
in his opinion (78): 
  "it would be an extension of the principle upon which the procurement of
breach of duty is made a tort to hold that it covers a mistaken assertion on
the part of the Executive Government or its officers that under the law, as
they understood it, it is the third party's duty to refrain from compliance
with the obligation upon which the plaintiff insists".


75.  The considerations that led Dixon J to conclude in James v. The
Commonwealth that the "intimation that the claims of the Government might be
enforced by resort to legal process" (79) did not amount to procurement or
inducement also lead to the conclusion that the mistaken assertion by
government officers that, as a matter of law, certain consequences will or
might attend a particular course of action does not constitute a threat for
the purposes of the principle stated in Salmond's Law of Torts and adopted by
Dixon J.  At least that is so if the assertion is made bona fide.  And it is
clear from the written submissions of the parties and the arguments of counsel
before this Court that the Mengels did not advance at trial a cause of action
based on any threat by the Inspectors to seize the Mengels' cattle nor was
there evidence to support any claim based on a threat in relation to the
movement restrictions.


76.  James v. The Commonwealth provides no support for the cause of action
described by Priestley J in the Court of Appeal.  Nor is there any other
principled basis for its recognition.  So far as individual government
employees are concerned, it would extend personal liability beyond misfeasance
in public office or, even, negligence and, in effect, impose liability for an
error of judgment.  That result is supported by neither policy nor principle.
Moreover and of more significance, it would give rise to the same difficulty
as does Beaudesert in relation to negligence:  if there is a duty of care on
the part of government or the individual employee to avoid the harm suffered,
it serves no useful purpose; and if there is not, it is anomalous to impose
liability for unintended harm that there is no duty to avoid.  Thus, the
Mengels are not entitled to succeed on the alternative basis formulated by
Priestley J in the Court of Appeal.


77.  It should be mentioned, for the sake of completeness, that it was not
argued in this Court that the Mengels were entitled to succeed on the actual
cause of action identified in Salmond's Law of Torts and acknowledged by Dixon
J in James v. The Commonwealth, doubtless because of the finding by Asche CJ
that the Inspectors did not intend to cause them harm.


Liability based on the constitutional principle of the rule of law
78.  Angel J was of the view that, in this case, liability attached to the
Inspectors and the Territory as "a consequence of the constitutional principle
of the rule of law rather than any private tort".  His Honour expressed the
view that, if harm results, there is liability for unauthorized acts of
governments and government officers or, perhaps, some unauthorized acts which
prevent the individual from doing what he or she would otherwise be free to
do, unless excluded by a statutory provision of the kind discussed in Little
v. The Commonwealth (80) and Board of Fire Commissioners (N.S.W.) v. Ardouin
(81).  It is not entirely clear, but it seems that his Honour may have
considered that liability attaches only to acts calculated to cause harm for
he described the loss suffered by the Mengels as "foreseeable and foreseen"
and spoke of the Inspectors' intention to prevent the movement of their cattle
even though "they did not injure the plaintiffs out of spite".


79.  It can at once be said that the principle espoused by Angel J is not
supported by authority.  Nor is it supported by principle.  Indeed it may well
be contrary to statute to assign liability to governments and their officers
on a basis not applicable to private individuals (82).


80.  Governments and public officers are liable for their negligent acts in
accordance with the same general principles that apply to private individuals
and, thus, there may be circumstances, perhaps very many circumstances, where
there is a duty of care on governments to avoid foreseeable harm by taking
steps to ensure that their officers and employees know and observe the limits
of their power.  And if the circumstances give rise to a duty of care of that
kind, they will usually also give rise to a duty on the part of the officer or
employee concerned to ascertain the limits of his or her power.  In these
circumstances, the basis of liability identified by Angel J in the Court of
Appeal encounters difficulties of much the same kind as those which attend the
cause of action recognized by Priestley J  So far as acts involving the
intentional infliction of harm are concerned, the personal liability of public
officers is covered by misfeasance in public office and there is no principled
basis either for its extension or for imposing liability on government if
there is neither de facto authority nor a duty of care to ensure that the
officer observes the limits of power.  In other cases, if there is a duty of
care to avoid the harm in question, the principle serves no useful purpose;
and if there is not, it would be anomalous to hold either the government or
the officer concerned liable for harm that there is no duty to avoid.


Conclusion
81.  The appeal should be allowed and the orders of the Court of Appeal of the
Northern Territory, other than those relating to costs, be set aside.  In lieu
thereof, the appeal to that Court should be allowed, the cross-appeal
dismissed and the orders of Asche CJ, other than those relating to costs, be
set aside and a verdict entered for the defendants.  Given the issues in the
appeal, no order should be made disturbing the orders for costs below.  In
accordance with statements made by counsel at the commencement of the hearing,
no order should be made as to the costs of this appeal.
JUDGE2
BRENNAN J   The facts found by Asche CJ at the trial of this action show that
the restrictions on movement of the plaintiffs' (respondents') stock which
were observed in obedience to the directions given by Messrs Baker and Tabrett
("the Inspectors") caused the plaintiffs financial loss and that the
Inspectors knew that the giving of those directions would cause such a loss.
Neither Inspector had statutory power or authority to give the directions
which he gave (83). On the other hand, neither Inspector was actuated by a
desire to inflict injury on the plaintiffs.  Nor was either Inspector found to
have given directions otherwise than in good faith, believing that he was
empowered to give the directions and that it was his official duty in the
circumstances to do so.


2.  On these findings, was the plaintiffs' loss compensable as damages for a
tort?  It is not sufficient for a plaintiff to show merely that he has
suffered a loss that was caused by the defendant's conduct.  The conduct must
infringe an interest which the common law protects and the conduct must be of
a character which the common law treats as wrongful. However, these twin
requirements do little to define tortious liability.  Interests which are
protected by the law of torts against some kinds of conduct are not protected
against others (for example, privacy is protected against trespass but not
against overseeing from an adjacent vantage point (84)).  The loss suffered by
a plaintiff must consist of an affection of an interest for which the law
governing a particular tort provides compensation (for example, loss of
reputation caused by defamatory statements, physical damage caused by
negligence). And the sense in which conduct is characterized as wrongful is
merely that damages (not being damages for breach of contract) will be awarded
for an infringement of particular kinds of interest caused by the particular
kind of conduct.  However, Dr Lushington said in delivering the opinion of the
Privy Council in Rogers v. Rajendro Dutt (85): 
  "it is essential to an action in tort that the act complained of should,
under the circumstances, be legally wrongful as regards the party complaining;
that is, it must prejudicially affect him in some legal right; merely that it
will, however directly, do him harm in his interests, is not enough."
That necessarily leaves the elements of legal right or interest and wrongful
conduct to be defined by the laws governing the several torts. In this case,
the relevant loss is pure economic loss.  There are several categories of
conduct which are wrongful when they cause economic loss.  The critical
question in the present case is whether the Inspectors' conduct to which the
plaintiffs' economic loss can be causally attributed falls within any of the
categories which the law of torts treats as wrongful in the relevant sense.


3.  The various causes of action on which the plaintiffs sought to rely are
examined in the reasons for judgment of the majority of the Court. I am in
general agreement with their Honours that the facts do not bring the case
within any of the principles which define tortious liability.  In particular,
the case does not fall within the criteria of liability stated in Beaudesert
Shire Council v. Smith (86) as interpreted in Kitano v. The Commonwealth (87).
I agree also that Beaudesert should be overruled, though it is supportable by
old authority as Deane J has demonstrated.  But there is one aspect of this
case on which I would state my own reasons for coming to the same conclusion
as that at which their Honours have arrived.


4.  The tort of misfeasance in public office is well established (88). Less
clearly established are the principles which define the liability imposed on a
public officer who, by use of his position or power (89), causes loss to
another.  The starting point is to identify the class of public officers.
Best CJ identified the class in these terms in Henly v. The Mayor of Lyme
(90): 
  " Now I take it to be perfectly clear, that if a public officer abuses his
office, either by an act of omission or commission, and the consequence of
that, is an injury to an individual, an action may be maintained against such
public officer.  The instances of this are so numerous, that it would be a
waste of time to refer to them.


5.  Then, what constitutes a public officer?  In my opinion, every one who is
appointed to discharge a public duty, and receives a compensation in whatever
shape, whether from the crown or otherwise, is constituted a public officer.
...


6.  It seems to me that all these cases establish the principle, that if a man
takes a reward, - whatever be the nature of that reward, whether it be in
money from the crown, whether it be in land from the crown, whether it be in
lands or money from any individual, - for the discharge of a public duty, that
instant he becomes a public officer; and if by any act of negligence or any
act of abuse in his office, any individual sustains an injury, that individual
is entitled to redress in a civil action."


7.  The tort is not limited to an abuse of office by exercise of a statutory
power.  Henly v. The Mayor of Lyme was not a case arising from an impugned
exercise of a statutory power.  It arose from an alleged failure to maintain a
sea wall or bank, the maintenance of which was a condition of the grant to the
corporation of Lyme of the sea wall or bank and the appurtenant right to
tolls.  Any act or omission done or made by a public official in purported
performance of the functions of the office can found an action for misfeasance
in public office.  Public officers perform a great variety of functions some
of which have a judicial element in them.  We can put aside the cases which
have a judicial element (91), as the directions which the Inspectors gave in
this case were wholly administrative.


8.  A number of elements must combine to make a purported exercise of
administrative power wrongful.  The first is that the purported exercise of
power must be invalid, either because there is no power to be exercised or
because a purported exercise of the power has miscarried by reason of some
matter which warrants judicial review and a setting aside of the
administrative action.  There can be no tortious liability for an act or
omission which is done or made in valid exercise of a power.  A valid exercise
of power by a public officer may inflict on another an unintended but
foreseeable loss - or even an intended loss - but, if the exercise of the
power is valid, the other's loss is authorized by the law creating the power.
In that case, the conduct of the public officer does not infringe an interest
which the common law protects.  However, a purported exercise of power is not
necessarily wrongful because it is ultra vires.  The history of the tort shows
that a public officer whose action has caused loss and who has acted without
power is not liable for the loss merely by reason of an error in appreciating
the power available.  Something further is required to render wrongful an act
done in purported exercise of power when the act is ultra vires.


9.  The further requirement relates to the state of mind of the public officer
when the relevant act is done or the omission is made.  An early case is Ashby
v. White (92), in which Ashby complained that the constables of the borough in
which an election was held had refused to permit him to vote "fraudulently and
maliciously intending to damnify him" (93).  Lord Holt CJ, whose judgment
ultimately prevailed in the House of Lords, held that malice was essential to
the action (94). Malice has been understood to mean an intention to injure
(95).  In this context, the "injury" intended must be something which the
plaintiff would not or might not have suffered if the power available to the
public officer had been validly exercised.  (It is in that sense that I use
the term "injury" hereafter.)  In more recent times, the scope of the tort has
not been limited to cases in which a public officer has acted maliciously
(96).  It has now been accepted that if a public officer engages in conduct in
purported exercise of a power but with actual knowledge that there is no power
to engage in that conduct, the conduct may amount to an abuse of office (97).
Thus Mann J said in Bourgoin S.A. v. Minister of Agriculture (98): 
  " I do not read any of the decisions to which I have been referred as
precluding the commission of the tort of misfeasance in public office where
the officer actually knew that he had no power to do that which he did, and
that his act would injure the plaintiff as subsequently it does.  I read the
judgment in Dunlop v. Woollahra Municipal Council in the sense that malice and
knowledge are alternatives."


10.  I respectfully agree that the mental element is satisfied either by
malice (in the sense stated) or by knowledge.  That is to say, the mental
element is satisfied when the public officer engages in the impugned conduct
with the intention of inflicting injury or with knowledge that there is no
power to engage in that conduct and that that conduct is calculated to produce
injury.  These are states of mind which are inconsistent with an honest
attempt by a public officer to perform the functions of the office.  Another
state of mind which is inconsistent with an honest attempt to perform the
functions of a public office is reckless indifference as to the availability
of power to support the impugned conduct and as to the injury which the
impugned conduct is calculated to produce.  The state of mind relates to the
character of the conduct in which the public officer is engaged - whether it
is within power and whether it is calculated (that is, naturally adapted in
the circumstances) to produce injury.  In my opinion, there is no additional
element which requires the identification of the plaintiff as a member of a
class to whom the public officer owes a particular duty (99), though the
position of the plaintiff may be relevant to the validity of the public
officer's conduct.  For example, the officer's administrative act may be
invalid because he or she did not treat the plaintiff with procedural
fairness. It is the absence of an honest attempt to perform the functions of
the office that constitutes the abuse of the office.  Misfeasance in public
office consists of a purported exercise of some power or authority by a public
officer otherwise than in an honest attempt to perform the functions of his or
her office whereby loss is caused to a plaintiff. Malice, knowledge and
reckless indifference are states of mind that stamp on a purported but invalid
exercise of power the character of abuse of or misfeasance in public office.
If the impugned conduct then causes injury, the cause of action is complete.


11.  The plaintiffs submit that the requisite elements of the cause of action
are satisfied by "constructive knowledge" of the absence of power to engage in
particular conduct and foreseeability of the injury suffered by the plaintiff.
This submission carries concepts familiar in the law of negligence into the
tort of misfeasance in public office to which, in my opinion, those concepts
are foreign.  A public officer is appointed to his or her office in order to
perform functions in the public interest.  If liability were imposed upon
public officers who, though honestly assuming the availability of powers to
perform their functions, were found to fall short of curial standards of
reasonable care in ascertaining the existence of those powers, there would be
a chilling effect on the performance of their functions by public officers.
The avoidance of damage to persons who might be affected by the exercise of
the authority or powers of the office rather than the advancing of the public
interest would be the focus of concern. Foreseeability of damage to another by
one's own conduct is the factor which warrants the imposition of a duty of
care to the other when engaging in the conduct.  But the tort of misfeasance
in public office is not concerned with the imposition of duties of care.  It
is concerned with conduct which is properly to be characterized as an abuse of
office and with the results of that conduct.  Causation of damage is relevant;
foreseeability of damage is not.


12.  Different considerations apply when a tort other than misfeasance in
public office is relied on as a source of liability.  Public officers, like
all other subjects, are liable for conduct that amounts to a tort unless their
conduct is authorized, justified or excused by statute.  A statute is not
construed as authorizing, justifying or excusing tortious conduct unless it so
provides expressly or by necessary intendment.  In particular, a statute which
confers a power is not construed as authorizing negligence in the exercise of
the power.  Thus liability may be imposed on a public officer under the
ordinary principles of negligence where, by reason of negligence in the
officer's attempted exercise of a power, statutory immunity that would
otherwise protect the officer is lost (100).  But there is an obvious
difference between the malice, knowledge or reckless indifference as to the
existence of a power that is an element in the tort of misfeasance in public
office and negligence in the exercise of a power which precludes a plea of
statutory authority to engage in the conduct complained of.


13.  A distinction must therefore be drawn between an absence of reasonable
care in ascertaining whether a power is available for exercise and an absence
of reasonable care in exercising an available power.  Error by a public
officer in the ascertainment of available power may found a misfeasance
action, if at all, only if the public officer knew that there was no power
(101) or was recklessly indifferent as to the existence of the power to engage
in the conduct which caused the plaintiff's loss.  In O'Connor v. Isaacs (102)
Diplock J said: 
  "If A, acting in perfectly good faith, orders B to do something, which order
both A and B erroneously think A is entitled to give, and B does it, I know of
no principle which makes A liable for any damage suffered by B as a result of
doing it.  It seems to me that it is damnum absque injuria.  If a policeman,
who has a limited authority, orders me to cross the road in circumstances
where he has no right to do so, and I do so, and as a result of that I suffer
damage, both of us erroneously thinking that he is entitled to give such an
order to me, I cannot see any principle on which I should be entitled to
recover from the policeman the damage which I have suffered as a result of our
mutual mistake of law.  Now, if A does it maliciously, then it may well be
that an action will lie, whether or not he has got the authority to give the
order, although in Gelen v. Hall (103) the court left open the question
whether an action would lie." 
That case related to a judicial order made by justices, not to a purported
exercise of a purely administrative power.  Nonetheless, the reference by
Diplock J to the policeman's order shows that his Lordship's dictum was
intended to apply to a purported exercise of administrative as well as
judicial power.


14.  Where a public officer takes action that causes loss to a plaintiff - in
the present case, by giving directions - and the sole irregularity consists of
an error as to the extent of the power available to support the action,
liability depends upon the officer's having one of the states of mind that is
an element in the tort of misfeasance in public office.  That element defines
the legal balance between the officer's duty to ascertain the functions of the
office which it is his or her duty to perform and the freedom of the
individual from unauthorized interference with interests which the law
protects.  The balance that is struck is not to be undermined by applying a
different standard of liability - namely, liability in negligence - where a
plaintiff's loss is purely economic and the loss is attributable solely to a
public officer's failure to appreciate the absence of power required to
authorize the act or omission which caused the loss (104).  The law does not
speak with a forked tongue when dealing with the limit of liability of a
public officer.  It is unnecessary now to consider whether additional factors
(for example, express representation of authority or known reliance on
authority) may attract liability to a public officer under the law governing
the tort of negligence.  But the only question in this case is whether the
elements of the tort of misfeasance in public office have been established.


15.  The findings in the present case go no further than establishing that the
directions were given without power.  Perhaps they do not go that far.  In any
event, there was no finding that the Inspectors were acting otherwise than in
good faith; nor was there a finding either that they knew they had no power to
give the relevant directions or that they were recklessly indifferent to the
availability of that power.  In the absence of such findings, the Inspectors'
giving of directions to the plaintiffs cannot be held to have been wrongful.
Misfeasance in public office was not established.  At base, the plaintiffs'
claim against the appellants rests on the assertion that the Inspectors had no
power to give the directions which they gave.  In the absence of a finding
that the Inspectors knew they had no such power or were recklessly indifferent
to their having such power, the plaintiffs had no case.  The appellants were
not liable as for any other tort where the damage consisted of pure economic
loss.  There was no basis on which negligence could have been sheeted home to
the appellants.  Had there been any act of trespass to the plaintiffs' cattle,
the Inspectors may well have been liable accordingly, but not for the tort of
misfeasance in public office.


16.  The appeal must be allowed, the order of the Full Court set aside and in
lieu thereof the appeal to the Full Court allowed, the judgment of Asche CJ
set aside and in lieu thereof the plaintiffs' claim be dismissed.
JUDGE3
DEANE J   The appellants are the Northern Territory of Australia ("the
Territory") and two of its stock inspectors, Mr Tabrett and Mr Baker. They
seek to overturn a verdict (105) entered against them by the learned trial
judge (Asche CJ) and, subject to an increase in the amount of damages (106),
confirmed by the Territory Court of Appeal (Angel, Thomas and Priestley JJ).
The respondents are a husband and wife, Mr Arthur Mengel and Mrs Caroline
Mengel, and members of their family.  I shall, somewhat inaccurately, refer to
them as "the Mengels".  They were the successful plaintiffs in the Supreme
Court. At relevant times, they carried on a cattle breeding business on two
stations in the Territory.


2.  The detailed background facts and the various grounds upon which the
Mengels seek to maintain their verdict are set out in the joint judgment of
Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ  Before turning to a
consideration of those grounds, it is appropriate that I acknowledge the
assistance which I have derived from the analysis of principle and relevant
cases contained in the judgments below and in the written and oral submissions
of counsel for the parties and interveners in this Court.


The Beaudesert "proposition"
3.  Both the learned trial judge and the members of the Court of Appeal were
bound to accept and apply the "proposition" formulated in the joint judgment
of Taylor, Menzies and Owen JJ in Beaudesert Shire Council v. Smith (107).
The trial judge found, and the members of the Court of Appeal agreed, that the
present case satisfied the requirements of the cause of action identified in
that proposition.  In this Court, the appellants argue that the Beaudesert
proposition should be overruled and the independent cause of action which it
identified should be disowned.  Alternatively, it is submitted that the
requirements of that cause of action were not satisfied in the present case.
It is convenient to consider the latter submission first.


(a)  Were the Beaudesert requirements satisfied?
4.  The cause of action identified in Beaudesert was said to arise,
"independently of trespass, negligence or nuisance", when "a person ...
suffers harm or loss as the inevitable consequence of the unlawful,
intentional and positive acts of another" (108).  It has been subjected to
much adverse criticism, partly on the ground that the formulation of it
invites questions about the meaning and scope of at least one of the phrases
and three of the words which it employs, namely:  "inevitable consequence";
"unlawful"; "intentional"; and "positive".


5.  In the present case, on the findings of the trial judge, the Mengels
sustained financial loss when, believing an assertion that their two stations
were under quarantine, they accepted and complied with instructions given to
them by Mr Baker and (indirectly) Mr Tabrett to the effect that their breeding
cattle could not lawfully be moved otherwise than directly to an abattoir for
the purpose of immediate slaughter.  One can speculate that, if either Mr
Tabrett or Mr Baker had appreciated that he lacked authority to give those
instructions for the reason that there was neither a relevant approved
"eradication programme" nor any applicable restriction on the movement of the
Mengels' breeding cattle, the lack of authority or restriction would have been
promptly rectified by an exercise of the powers conferred upon the Territory's
Chief Inspector of Stock by s.27(2) of the Stock Diseases Act 1954 (N.T.)
since Mr Tabrett was himself the holder of that office (109).  Be that as it
may, the case was conducted in this Court on the basis that the Mengels had
suffered substantial "harm or loss" which was a foreseeable and foreseen - and
relevantly "inevitable" - consequence of their obedience to the unauthorized
directions given by the stock inspectors.  The quantum of damages which the
Court of Appeal determined to be appropriate to compensate the Mengels for the
"harm or loss" sustained has not been challenged.


6.  The requirement of "intentional" in the Beaudesert formulation was
directed towards the doing of the particular act rather than the causing of
the "harm or loss".  The requirement of "positive" necessitates, at the most,
that the act be one of commission.  It has not been argued on behalf of the
appellants that the communication of the assertion that the stations were
under quarantine and the giving of the instructions restricting movement were
not intentional and positive acts in that sense.  The main basis of the
appellants' argument that the present case falls outside the Beaudesert
formulation is a submission that the relevant acts of the stock inspectors,
while unauthorized and lacking legal efficacy, were not "unlawful" in the
sense in which that word was used by Taylor, Menzies and Owen JJ in their
joint judgment.


7.  In Dunlop v. Woollahra Municipal Council (110), Lord Diplock, having
referred to the distinction between "illegality on the one hand and invalidity
on the other", said that their Lordships of the Privy Council had "no doubt"
that the word "unlawful" as used in the Beaudesert proposition was "intended
... to be understood in what for the past 90 years has been its only accurate
meaning", namely, illegal in the sense of being "contrary to law" (111).
While I would hesitate to assert that the "accurate meaning" of "unlawful" for
the past 90 years had precluded the word ever being properly used to refer to
mere invalidity on grounds such as "immorality" or "unreasonable restraint of
trade" (112), I agree that the word "unlawful" was used by Taylor, Menzies and
Owen JJ in the critical passage in Beaudesert (113) in the sense of "contrary
to law" as distinct from either invalid or unauthorized.  So to say goes but
part of the way towards resolution of the ambiguity arising from the use of
the word "unlawful" in Beaudesert.  There, the extraction of the gravel
without a permit was said to be contrary to a specific statutory prohibition
(114).  In that context, it is arguable that the phrase "forbidden by law"
which was used by Taylor, Menzies and Owen JJ in the first formulation of
their proposition (115) and the word "unlawful" used in its ultimate
formulation (116) were intended to refer only to acts which are "forbidden"
either by the criminal law or by some specific and direct statutory
prohibition (117).  That argument derives some support from their Honours'
subsequent statement that "a wider proposition" may be justifiable but that
"the proposition we have stated covers this case" (118).  On balance, however,
a careful reading of the judgment in Beaudesert (119) leads to the conclusion
that the phrase "forbidden by law" and the word "unlawful" were intended by
their Honours to be understood in a wider sense which at least encompasses a
tortious infringement or contravention of the rights of another.  It is
unnecessary for the purposes of the present case to determine whether
"unlawful", as used in Beaudesert, also encompasses an act done in breach of
contract (120) since there is no suggestion that anything said or done by or
on behalf of the appellants constituted a breach of contract.


8.  Prima facie, the acts of the stock inspectors in the present case were not
unlawful in the sense accepted in the preceding paragraph. The statement that
the two stations were "under quarantine" contained in the facsimile from Mr
Tabrett which was delivered to the Mengels by Mr Baker was mistaken.  However,
its making and communication were not, without more, contrary to any criminal
or civil law. As indicated above, I consider that the statements about the
movement of breeding stock are properly to be seen not only as assertions of
fact but also as instructions given by Mr Tabrett and/or Mr Baker in their
official capacities.  Nonetheless, and regardless of whether they be viewed as
mere statements of fact or as instructions to be obeyed, they also were not,
without more, unlawful in the sense of being contrary to law.  In so far as
they were statements of fact, they were honestly mistaken. In so far as they
were instructions to be obeyed, they were simply unauthorized and invalid
(121).


9.  In the Court of Appeal, Priestley J, who delivered the leading judgment,
acknowledged the force of the submission that "the mere fact" that the stock
inspectors' acts were unauthorized did not suffice to satisfy the requirement
of "unlawful" in the Beaudesert proposition. His Honour continued: 
  "but the plaintiffs were not relying merely on lack of authority, they were
relying on lack of authority in combination with the pressure exerted on the
plaintiffs by the defendants, their claims apparently backed by the authority
of their official position, to get the plaintiffs to comply with the
consequences of the defendants' view of the changed status of their holdings
and/or herds and the implied threat of penal consequences if the plaintiffs
did not do what the defendants were telling them to do". 
The additional factors of "pressure" and an "implied threat of penal
consequences" led his Honour to conclude that the requirement of "unlawful"
was satisfied in the present case.  With due respect, I am unable to accept
that conclusion.  An intimation that disobedience will be accompanied by penal
consequences does not, in my view, suffice to transform an instruction given
in an honest but mistaken purported exercise of official authority into an act
which is "unlawful" or "forbidden by law" within the meaning of that word or
phrase as used in Beaudesert.  In that regard, I would understand a "threat of
penal consequences", whether express or implied (122), as conveying no more
than an intimation that the person making the threat might resort to legal
proceedings for the purpose of seeking whatever, if any, relief or penalty was
appropriate in all the circumstances of the case.


10.  However, in a subsequent section of his judgment, Priestley J appears to
have concluded that, on the facts of the present case, there had been an
implied threat by Mr Tabrett and Mr Baker of an "unlawful interference with
... property or of unlawful prosecution" in the event that the Mengels did not
observe the unauthorized instructions restricting the movement of their
cattle.  In that context, it is possible that his Honour intended the phrase
"implied threat of penal consequences" in the earlier passage in his judgment
to be understood as a threat of unlawful interference with property and/or
unlawful prosecution (e.g. malicious prosecution).  As Priestley J recognized,
the learned trial judge made no finding to the effect that such an implied
threat of unlawful retribution had ever been made by, or on behalf of, any of
the appellants.  Nor, on my understanding, was there anything at all in the
evidence which could sustain such a finding.  In that regard, it was
effectively common ground in this Court that no suggestion of the existence of
an express or implied threat of unlawful conduct was raised in evidence in the
courts below.  In these circumstances, the most that might properly be implied
from what was said and written by or on behalf of the appellants is a threat
that whatever steps could lawfully be taken to prevent or penalize
contravention of the instructions restricting movement of cattle would be
taken.


11.  It follows that the conclusion in the courts below that the Beaudesert
requirement of an "unlawful" act was satisfied cannot, in my view, be
sustained.  Strictly speaking, it is unnecessary that I deal with the
submission that the Beaudesert proposition should be overruled.  That
submission is, however, dealt with and upheld in the judgments of the other
members of the Court and it is appropriate that I indicate my views in
relation to it.


(b)  Should Beaudesert be overruled?
12.  It can be said at once that I do not share the extreme antipathy which
some commentators have expressed towards Beaudesert.  In particular, the
assertion that has sometimes been made to the effect that the proposition
derives no support whatever from any of the authorities relied upon in the
judgment seems to me to be quite unjustified.  That point can be sufficiently
illustrated by reference to the first of the cases which Taylor, Menzies and
Owen JJ cited in support of the proposition, namely the 1355 Common Pleas case
of the Abbot of Evesham.  Their Honours quoted in full (123) the summary of
that case which is set out in Coke's Report of the The Earl of Shrewsbury's
Case (124): 
  "The Abbot of Evesham brought an action on the case against certain persons,
and declared that he had a fair in S. with all that belonged to a fair, and
that the defendant with force and arms disturbed the people coming to the fair
(which was causa causans) by which the plaintiff lost his toll (which was
causa causata) the point of the action, and the action held maintainable." 
They went on (125) to point out that Bacon had also accepted the decision in
the Abbot of Evesham's Case as good law and had cited the case in his
Abridgements (126) in support of the general proposition that "if persons
coming to market are disturbed, by which I lose my toll, an action on the case
lies".


13.  The first published assertion that the Abbot of Evesham's Case, and
Coke's and Bacon's acceptance of it, provided no support for the Beaudesert
proposition would seem to have been made in an article by Dworkin and Harari
in the Australian Law Journal in the year following the decision (127).  It is
appropriate to examine the authors' comments in that regard in some detail
since they would seem to have been accepted as well founded by Richardson J in
his important judgment in the New Zealand Court of Appeal in Takaro Properties
Ltd. v. Rowling (128).  They wrote (129): 
  "Several comments can be made.  Even if one assumes that this is not a
special area of the law relating to markets and fairs, it appears that the
plaintiff was both the person with the right to hold the fair and also the
person with the right of toll.  The defendant was liable to the plaintiff in
intimidation as there were unlawful acts towards the visitors which were
intended to deter them from going to the fair. In any event, a substantial
distinction between this case and the Beaudesert case was, of course, that in
the latter case the unlawful act was not committed with any intention to
injure the plaintiff."


14.  With due respect, any superficial validity of those "comments" evaporates
under informed examination.  The opening assumption that "this is not a
special area of the law relating to markets and fairs" is fully justified
(130).  As Professor Kiralfy recognized in his landmark work on The Action on
the Case (131), the Abbot of Evesham's Case provides a paradigm of an early
action on the case in trespass. The  statement that "it appears that the
plaintiff was both the person with the right to hold the fair and also the
person with the right of toll" really adds nothing since the toll in the Abbot
of Evesham's Case was obviously a market or fair toll.  Moreover, the more
detailed reports of the case disclose that the Abbot's pounds 40 damages were
awarded for lost profits as well as lost toll.


15.  Most importantly, the comment that the "defendant was liable to the
plaintiff in intimidation as there were unlawful acts towards the visitors
which were intended to deter them from going to the fair" (emphasis added)
would seem to be essentially irrelevant speculation, flavoured by a hint of
anachronism. There is nothing at all in the reports of the Abbot of Evesham's
Case (132) or in the acceptance of it in Coke's Reports to suggest that the
decision was in any way based on the existence of such an intention.  Indeed,
there is nothing at all in those reports to suggest that the disturbance of
those going to the Abbot's fair was in fact intended to injure, or directed
at, the Abbot as distinct from molesting those disturbed.  Nor is there
anything at all in Bacon's Abridgements to suggest that his general
proposition based upon the decision was intended to be understood as confined,
by an unstated qualification, to circumstances where the defendant had
"disturbed" the "persons coming to market" with the intention that the
plaintiff lose his toll or his profits or be otherwise injuriously affected.
Obviously, the emphasis on intention in the formulation of some comparatively
modern economic torts, such as intimidation and conspiracy, provides no basis
for assuming that an intention to injure the plaintiff must have existed in a
successful fourteenth century action on the case in trespass (133).  The last
sentence in the above extract from the Dworkin and Harari article loses its
content with the rejection of the assertion that the reports of the Abbot of
Evesham's Case and Coke's and Bacon's acceptance of it are to be explained by
an assumption of a failure either to appreciate or to mention that the true
basis of the case was an intention to damage the plaintiff.


16.  It is not necessary for present purposes to undertake a detailed analysis
of the other authorities upon which the members of the Court relied in
Beaudesert.  It suffices to say that, as Priestley J demonstrated in the Court
of Appeal, most, and arguably all (134), of them provide some support for some
aspect or aspects of the Beaudesert proposition (135).  On the other hand,
none of them really supports acceptance of that proposition as a modern
doctrine applicable to all "unlawful" acts.  However, the purpose for which
most of those authorities were cited was not so much to provide direct
discrete support for the proposition as to illustrate what their Honours
conceived to be the essential function of, and the principles which
underpinned, the action on the case in trespass.  In that regard, their
Honours' focus would seem to have been on the fact that the action in its
early development was not concerned to make the act complained of wrongful but
as providing a remedy for an independently wrongful act. Consequential damage
provided the occasion for, and the foundation of, an action on the case.
Initially, however, the writ did not run unless the act which caused the
consequential loss was already wrongful either under customary law or by
reason of some statutory prohibition (136). On the other hand, if
consequential damage was sustained and the act was wrongful for any of a
variety of reasons including being in breach of the criminal law, an action on
the case would prima facie lie.  In so far as breach of the criminal law was
concerned, the fact that an act was forbidden by statute would, in early
times, suffice (137).


17.  It follows from what has been said above that the principles underpinning
the original development of the action on the case in trespass and the
authorities which applied them provide significant support for the Beaudesert
proposition.  Indeed, it seems to me that a hypothetical judge of the late
fourteenth century who was prepared to address principles rather than facts
would have had little hesitation in accepting the proposition in its entirety
provided, of course, that the notion of "unlawful" was confined to what was
forbidden by the customary or statute law of those times.  In my view, valid
criticism of the proposition must be based not on the absence of old authority
to support it but on the effect of subsequent developments in the common law.


18.  Those subsequent developments have operated at two distinct levels.
First, the action on the case was, after the fourteenth century, increasingly
allowed in cases where the act was not previously wrongful and the upholding
of the writ involved the recognition of a new wrong. The result was that the
general proposition that an action on the case was a claim for harm or loss
sustained as the consequence of an act which was already independently
wrongful or unlawful lost its general validity.  Second, and more important,
the evolution of the modern law with its special rules operating in the more
clearly defined areas of established nominate torts has, to a significant
extent, confined and undermined the contemporary relevance of any general
principles which could be discerned as informing the early evolvement of the
action of the case.  In the context of those developments, it is, in my view,
impossible to sustain the validity of the Beaudesert proposition at least in
so far as it applies to acts which are not in contravention of the customary
criminal law or some applicable statutory prohibition. In its purported
application to such non-criminal acts, the proposition impermissibly intrudes
into areas now occupied and governed by the principles and the requirements of
the modern law of negligence and other particular torts such as enticement,
conspiracy and intimidation. In that regard, I am in general agreement with
what is said in the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and
McHugh JJ under the heading "Intentional and negligent infliction of harm in
the law of torts".


19.  As has been seen, Beaudesert was a case in which it was said that there
had been a direct contravention of a specific statutory prohibition.  The
taking of gravel without a permit was forbidden yet gravel was taken.  If the
requirement of "unlawful" in the Beaudesert proposition had been confined to
such a case or to a case of breach of the customary criminal law, there would
be more substantial grounds for arguing that it should be left undisturbed.
It can be argued that there is no compelling reason in principle or policy for
denying the existence of a cause of action in circumstances where a defendant
has intentionally done a positive act, in contravention of the customary
criminal law or of some statutory prohibition, which has, as an inevitable
consequence, caused loss or harm to the plaintiff.  As a matter of policy,
there is much to be said for the view that persons who will suffer "harm or
loss as the inevitable consequence" of such an intentional positive criminal
act should be entitled to order their affairs on the basis that the criminal
law, whether customary or statutory, will be obeyed.  As a matter of
principle, it is arguable that recovery of damages for loss or harm sustained
as an inevitable consequence of the criminal conduct of another accords with
fundamental values of the common law which remain substantially unaffected by
the developments in the common law to which reference was made in the
preceding paragraph.  The argument to that effect is advanced by reference to
another aspect of the early history of trespass and the action on the case in
trespass.


20.  The origins of trespass lay largely in the common law's perception that a
person who sustains injury directly caused by the criminal conduct of another
- "disturbance of the peace" and "force and arms" - should have a remedy
against the offender.  Indeed, as late as 1825, Blackstone could write (138)
that causes of action involving the allegation of force and violence "savour
something of the criminal kind, being always attended with some violation of
the peace; for which in strictness of law a fine ought to be paid to the king,
as well as private satisfaction to the party injured".  The Abbot of Evesham's
Case demonstrates that the action on the case in trespass initially enabled
recovery for damages sustained as a consequence of such conduct against a
third party.  As has been seen, it was recognized from early times that an
action on the case also lay to recover damages sustained as a consequence of a
defendant's criminal breach of statute.  Here, the original basis of the
action was the damage sustained by reason of the illegal act done in breach of
the statute and in "contempt of the Sovereign".  Clearly enough, the old cases
lend some support for a general proposition that a person who sustains hurt or
loss as a consequence of the positive criminal acts of another is entitled to
compensatory damages.


21.  Notwithstanding the above arguments, I consider that the Beaudesert
proposition should not be sustained even if confined to criminal conduct.  I
shall briefly identify the considerations which have led me to that
conclusion.  First, the wide scope of criminal conduct under the law of this
country, the differences in degrees of culpability and, in some areas, the
artificiality of the distinction between unlawful conduct which is criminal
and unlawful conduct which is not, combine to make a general proposition which
applies indifferently to impose liability for every consequential injury
inevitably caused by any unlawful act (which is positive and intentional)
inappropriate to contemporary circumstances.  It would, for example, be both
harsh and arbitrary if every person who, by an intentional positive act,
commits an inadvertent minor and technical breach of the criminal law was
liable in damages to all who suffer loss or harm as an inevitable consequence
even though there was no relevant breach of duty, no intention to cause loss
or harm and the act was one which could be done lawfully and, if done
lawfully, would have caused corresponding loss or harm in respect of which no
liability would exist.  Second, particular rules have developed to identify
the circumstances in which, as a matter of statutory construction, a breach of
a statutory prohibition or requirement gives rise to civil liability
independently of the ordinary law of torts.  As Professor Kiralfy commented
(139), a "modern court applies much stricter tests before it allows a civil
action for damages based on a Statute creating a criminal offence".  There is
an obvious tension between those much stricter tests with their focus on
legislative intent and the Beaudesert proposition.  Indeed, at times, that
tension borders on inconsistency (140).  Third, it seems to me that the
developments in the law of torts to which reference has already been made,
while not compelling in so far as the application of the Beaudesert
proposition to criminal conduct is concerned, strongly militate against its
acceptance even if confined to such conduct.


22.  It follows that I would overrule the decision in Beaudesert and the
proposition upon which it was based.


Misfeasance in public office
23.  As Lord Diplock observed, in delivering the judgment of the Privy Council
in Dunlop v. Woollahra Municipal Council (141), the tort of misfeasance in
public office is "well-established".  Its elements are: (i) an invalid or
unauthorized act; (ii) done maliciously; (iii)  by a public officer; (iv) in
the purported discharge of his or her public duties; (v) which causes loss or
harm to the plaintiff.  That summary statement of the elements of the tort
inevitably fails to disclose some latent ambiguities and qualifications of
which account must be taken in determining whether a particular element is
present in the circumstances of a particular case.  The critical element for
present purposes is malice.


24.  In the context of misfeasance in public office, the focus of the
requisite element of malice is injury to the plaintiff or injury to some other
person through an act which injuriously affects the plaintiff (142).  Such
malice will exist if the act was done with an actual intention to cause such
injury.  The requirement of malice will also be satisfied if the act was done
with knowledge of invalidity or lack of power and with knowledge that it would
cause or be likely to cause such injury.  Finally, malice will exist if the
act is done with reckless indifference or deliberate blindness (143) to that
invalidity or lack of power and that likely injury.  Absent such an intention,
such knowledge and such reckless indifference or deliberate blindness, the
requirement of malice will not be satisfied.


25.  Clearly, there was no basis in the circumstances of the present case for
a finding of such an intention, such knowledge or such reckless indifference
or deliberate blindness against any of the appellants. That being so, it
follows that the appellants were not liable to the Mengels for misfeasance in
public office in the circumstances of the present case.  Subject to what is
said above, I am in general agreement with the reasons given in the judgment
of Brennan J for that conclusion.


Intimidation
26.  In James v. The Commonwealth (144), Dixon J quoted with apparent approval
the following passage from the 9th edition of Salmond (145): 
  "Although there seems to be no authority on the point, it cannot be doubted
that it is an actionable wrong intentionally to compel a person, by means of a
threat of an illegal act, to do some act whereby loss accrues to him:  for
example, an action will doubtless lie at the suit of a trader who has been
compelled to discontinue his business by means of threats of personal violence
made against him by the defendant with that intention."
That passage was also quoted in full and with approval by Lord Devlin in
Rookes v. Barnard (146).  In the Court of Appeal in the present case,
Priestley J accepted it as a correct statement of the law.  I agree with his
Honour in that regard.  His Honour also expressed the conclusion that he
would, if necessary, uphold the verdict in the Mengels' favour on the basis of
the cause of action identified in that passage.  While I am in agreement with
much of his Honour's reasoning, I respectfully disagree with that conclusion.


27.  If the Mengels had been induced to refrain from movement of their cattle
by an express or implied threat of unlawful seizure which was made by the
inspectors with the intention and for the purpose of preventing such movement,
they would, in my view, have been entitled to recover damages for the tort of
intimidation identified by Sir John Salmond in the above passage.  As I have
indicated, however, I do not consider that there is any basis in the evidence
for a finding of such an express or implied threat.  Nor, in my view, is there
any basis in the evidence for a finding that the Mengels were in fact induced
to refrain from moving their cattle by a belief that such a threat had been
expressly or impliedly made.  The most that the evidence might arguably
sustain was a finding of an express or implied threat that whatever steps
could lawfully be taken to prevent movement of cattle would be taken.


28.  In these circumstances, the reason which led Dixon J to conclude that the
cause of action identified by Sir John Salmond was not available to Mr James
is also applicable to the present case.  His Honour said (147): 
  "a short answer to this suggestion is that the plaintiff in fact was not
influenced by the fear of seizure and it was not the threats supposed that
operated to restrain his trading".
In one respect, the Mengels' case is not as strong as Mr James' in that, in
James, Dixon J was apparently prepared to infer from the circumstances of that
case, including some past seizures, that a threat of unlawful seizure had
impliedly been made (148).  Nonetheless, Dixon J found that the operative
influence had been "fear of prosecution under the regulations, the belief that
it was contrary to the law to carry the fruit and the common desire not to
come into conflict with a government department" (149).  It is debateable
whether the evidence in the present case goes even far enough to found a
corresponding conclusion as to the operative influence which caused the
Mengels to refrain from moving the cattle since it was conceded on their
behalf in this Court that "no issue concerning the belief of (the Mengels) as
to prosecution (had been) raised or tested".  Certainly, the evidence in the
present case cannot sustain a more favourable conclusion from the Mengels'
point of view.


29.  In James v. The Commonwealth (150), Dixon J was clearly of the view that
a threat of prosecution was not, without more, a threat of an illegal act even
if a prosecution would be doomed to fail.  As I have already indicated, I
respectfully agree with his Honour's view in that regard.  There is nothing
illegal about a prosecution which is brought bona fide but which fails and, in
the absence of malice or some ulterior or improper motive, a threat to
institute a prosecution is not a threat of an "illegal act" for the purposes
of an action for intimidation.  As Dixon J commented (151): 
  "The situation is simply that the Executive, charged with the execution of
the law, under a bona-fide mistake as to the state of the law, proposes to
proceed by judicial process.  The courts are established by and under the
Constitution for the purpose, among others, of determining whether the
Executive is or is not mistaken in its view of the law which it seeks to
enforce against the individual, and judicial process is the appointed means
for bringing the question up for decision.  To treat a proposal or threat to
institute proceedings as a wrongful procurement of a breach of duty is to
ignore the fact that, assuming bona fides, the law always countenances resort
to the courts, whether by criminal or civil process, as the proper means of
determining any assertion of right."


30.  It follows from the above that an action for intimidation was not made
out.


Conclusion
31.  I agree with Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ that, for
the reasons which they give, the judgment in the Mengels' favour cannot be
sustained on the basis suggested by Angel J in the Court of Appeal, namely, as
"a consequence of the constitutional principle of the rule of law rather than
any private tort".  I also agree with their Honours that, in the context of
the manner in which the case was conducted in the courts below and in this
Court, it would be quite inappropriate for this Court to embark on the
question whether the Mengels' claim could be reformulated as an action in
negligence founded on the proposition that Mr Tabrett and Mr Baker were in
breach of a duty of care owed to the Mengels in failing to appreciate that
their actions were unauthorized.  I would, however, indicate that I disagree
with the view that that proposition could not be made good by reason of the
absence of a positive finding that there was no "approved programme".  In my
view, a positive finding to that effect is implicit in the judgment of the
learned trial judge.  Indeed, so much was expressly conceded by the appellants
in their written submissions in this Court which include among the "primary
findings of fact" a finding that the inspectors were not "authorised because
... the herds in question ... were not at the time 'subject to an eradication
programme approved for the purposes of the (B.T.E.C.) campaign'".


32.  I agree with the orders proposed by Mason CJ, Dawson, Toohey, Gaudron and
McHugh JJ.  I would, however, extend to the Mengels the opportunity of
applying for a further order which would allow them, even at this very late
stage, to apply to the Court of Appeal for leave to seek to reformulate their
case as an action in negligence.  Their failure in any event on the Beaudesert
claim would militate against the grant by the Court of Appeal of such leave.
Also, there are some obvious difficulties, such as causation of damages, which
would lie in the path of any such reformulated action.  Nonetheless, it seems
to me that there may be something to be said for the view that, in
circumstances where their case was primarily formulated as a claim based on
the Beaudesert proposition which they were then entitled to assume to be good
law but which has now been overturned by this Court, they should be given the
opportunity of making such an application to the Court of Appeal. 
Footnotes:

1  As to the significance of de facto authority, see James v. The Commonwealth
(1939) 62 CLR 339 at 359-360 per Dixon J. 
2  Section 27 was inserted by the Stock Diseases Amendment Act 1983 (N.T.). 
3  Section 5 defines "Chief Inspector" to mean the Chief Inspector of Stock.
At all times relevant to this case, Mr Tabrett was the Chief Inspector. 
4  Section 5 defines "inspector" to mean "a person appointed and holding
office as an inspector of stock under this Act".  At all times relevant to
this case, Mr Baker was an inspector. 
5  See s.42 generally for other powers of this kind. 
6  (1966) 120 CLR 145. 
7  (1939) 62 CLR 339. 
8  (1966) 120 CLR at 156. 
9  ibid. at 152. 
10  See, for example, Dunlop v. Woollahra Municipal Council (1982) AC 158 at
170-171; Copyright Agency Ltd. v. Haines (1982) 1 NSWLR 182 at 195 per
McLelland J. 
11  See Lonrho Ltd. v. Shell Petroleum (No.2) (1982) AC 173 at 187-188 per
Lord Diplock; R.C.A. Corporation v. Pollard (1983) Ch 135 at 154 per Oliver LJ

12  See Takaro Properties Ltd. v. Rowling (1978) 2 NZLR 314 at 339 per
Richardson J; Van Camp Chocolates Ltd. v. Aulsebrooks Ltd. (1984) 1 NZLR 354
at 359. 
13  See, for example, Balkin and Davis, Law of Torts, (1991) at 682 et seq.;
Dworkin and Harari, "The Beaudesert Decision - Raising the Ghost of the Action
upon the Case - Part 1", (1967) 40 Australian Law Journal 296 at 304-306;
Fleming, The Law of Torts, 8th ed. (1992) at 702-703; Fridman, "Interference
with Trade or Business - Part I", (1993) 1 Tort Law Review 19 at 34-38;
Heydon, "The Future of the Economic Torts", (1975) 12 University of Western
Australia Law Review 1 at 16-17; Phegan, "Damages for Improper Exercise of
Statutory Powers", (1980) 9 Sydney Law Review 93 at 117-120; Evans, "Damages
for Unlawful Administrative Action: The Remedy for Misfeasance in Public
Office", (1982) 31 International and Comparative Law Quarterly 640 at 649. 
14  In Munnings v. Australian Government Solicitor (1994) 68 ALJR 169; 118 ALR
385, the plaintiff sought, inter alia, to invoke a Beaudesert action.
However, Dawson J held that, even assuming that the actions of the defendants
were unlawful, the plaintiff had suffered no damage and, hence, it was not
necessary to decide whether Beaudesert applied (68 ALJR at 171-172; 118 ALR at
389). 
15  In John v. Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-439,
the criteria for the Court to review and depart from an earlier decision were
set out by Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ.  These are:
  1. The earlier decision does not rest upon a principle carefully worked out
in a significant succession of cases.
  2. There is a difference between the reasons of the majority judges in the
earlier decision.
  3. The earlier decision has achieved no useful result, but has rather led to
considerable inconvenience.
  4. The earlier decision has not been acted on in a manner militating against
its reconsideration.
  See also Queensland v. The Commonwealth ("the Second Territories
Representation case") (1977) 139 CLR 585. 
16  (1966) 120 CLR at 155. 
17  (1620) Cro Jac 567 (79 ER 485). 
18  (1793) Peake 270 (170 ER 153). 
19  (1966) 120 CLR at 153. 
20  (1620) Cro Jac at 567 (79 ER at 485). 
21  (1966) 120 CLR at 153. 
22  (1793) Peake at 271 (170 ER at 153). 
23  (1610) 9 Co Rep 46b (77 ER 798). 
24  ibid. at 50b (806 of ER).  The Court in Beaudesert (1966) 120 CLR at
152-153 does not make it clear that the case of the Abbot of Evesham's fair is
not The Earl of Shrewsbury's Case, but an earlier case:  (1355) YB 29 Edw III
18. 
25  (1809) 11 East 571 (103 ER 1126). 
26  (1706) 11 East 574n (103 ER 1127). 
27  (1706) 11 East 574 at 576 (103 ER 1127 at 1128). 
28  (1889) 23 QBD 598; on appeal (1892) AC 25. 
29  (1857) 2 H and N 476 (157 ER 196); on appeal (1858) 3 H and N 675 (157 ER
639). 
30  (1889) 23 QBD at 614 and 626 respectively. 
31  (1966) 120 CLR at 155. 
32  (1857) 2 H and N at 485-486 (157 ER at 200-201); on appeal (1858) 3 H and
N at 679-680 (157 ER at 641). 
33  In the result, the judgment of the court below on this issue stood. See
(1858) 3 H and N 901 (157 ER 733) and (1860) 5 H and N 480 (157 ER 1269). 
34  Kitano v. The Commonwealth (1974) 129 CLR 151 at 174 per Mason J. 
35  (1994) 179 CLR 520. 
36  (1868) LR 3 HL 330.  See also Fletcher v. Rylands (1866) LR 1 Ex 265. 
37  (1994) 179 CLR at 556 per Mason CJ, Deane, Dawson, Toohey and Gaudron  JJ.

38  See, for example, Balkin and Davis, op. cit. at 625 et seq.; Luntz and
Hambly, Torts Cases and Commentary, 3rd ed. (1992) at 812 et seq.; Morison and
Sappideen, Torts Commentary and Materials, 8th ed. (1993) at 166 et seq. 
39  Note, however, that the action per quod servitium amisit, the earliest
record of which is in the printed reports of 1293, is sometimes classified as
an economic tort.  See Balkin and Davis, op. cit. at 673 et seq.; Jones, "Per
Quod Servitium Amisit", (1958) 74 Law Quarterly Review 39 at 40, n.6. 
40  (1853) 2 El and Bl 216 at 229-230 per Crompton J, 233-234 per Erle J, 238
per Wightman J (118 ER 749 at 754, 756, 757). 
41  See, for example, Lonrho Plc. v. Fayed (1990) 2 QB 479 at 488-489 per
Dillon LJ, 491-492 per Ralph Gibson LJ, 494 per Woolf LJ and the cases cited
therein. 
42  Emerald Construction Co. Ltd. v. Lowthian (1966) 1 WLR 691 at 700-701 per
Lord Denning MR. 
43  As to intimidation, see Rookes v. Barnard (1964) AC 1129; J.T. Stratford
and Son Ltd. v. Lindley (1965) AC 269.  As to conspiracy, see Quinn v. Leathem
(1901) AC 495; Williams v. Hursey (1959) 103 CLR 30; McKernan v. Fraser (1931)
46 CLR 343. 
44  See Hadmor Productions Ltd. v. Hamilton (1983) 1 AC 191; Merkur Island
Shipping Corporation v. Laughton (1983) 2 AC 570; Lonrho Plc. v. Fayed (1990)
2 QB 479.  See also the discussion in Ansett Transport Industries (Operations)
Pty. Ltd. v. Australian Federation of Air Pilots (1989) 95 ALR 211 at 244-246
per Brooking J. 
45  See Balkin and Davis, op. cit. at 668-669; Lonrho Plc. v. Fayed (1990) 2
QB at 489 per Dillon LJ, 492 per Ralph Gibson LJ 
46  See O'Connor v. S.P. Bray Ltd. (1937) 56 CLR 464 at 477-478 per Dixon J,
486-487 per Evatt and McTiernan JJ; Darling Island Stevedoring and Lighterage
Co. Ltd. v. Long (1957) 97 CLR 36 at 52-53 per Williams J, 54 per Webb J, 56
per Fullagar J, 59-60 per Kitto J, 68 per Taylor J; Sovar v. Henry Lane Pty.
Ltd. (1967) 116 CLR 397 at 404-405 per Kitto J; Downs v. Williams (1971) 126
CLR 61 at 74-75 per Windeyer J; Sutherland Shire Council v. Heyman (1985) 157
CLR 424 at 482 per Brennan J, 500 per Deane J; London Passenger Transport
Board v. Upson (1949) AC 155 at 168 per Lord Wright. 
47  (1966) 120 CLR at 151-152. 
48  (1974) 129 CLR at 175. 
49  Dunlop v. Woollahra Municipal Council (1982) AC at 172. 
50  Tampion v. Anderson (1973) VR 715 at 720. 
51  See, for example, Farrington v. Thomson and Bridgland (1959) VR 286 at 293
per Smith J; Tampion v. Anderson (1973) VR at 720; Pemberton v.
Attorney-General (1978) Tas SR 1 at 25-31 per Chambers J; Little v. Law
Institute of Victoria (1990) VR 257 at 269-270 per Kaye and Beach JJ. 
52  See, for example, Dunlop v. Woollahra Municipal Council (1982) AC at 172;
Bourgoin S.A. v. Ministry of Agriculture (1986) QB 716 at 734-740 per Mann J;
on appeal (1986) QB 741 at 775-777 per Oliver LJ; Jones v. Swansea City
Council (1989) 3 All ER 162 at 173 per Slade LJ; Elguzouli-Daf v. Commissioner
of Police (1995) 2 WLR 173 at 181 per Steyn LJ 
53  (1875) LR 6 PC 398. 
54  (1959) VR at 293. 
55  See the cases cited in footnotes 51 and 52 supra. 
56  (1978) Tas SR at 29 per Chambers J. 
57  See, for example, McBride, "Damages as a Remedy for Unlawful
Administrative Action", (1979) 38 Cambridge Law Journal 323 at 328-331. 
58  (1957) 2 Brit J Admin Law 243.  See also The Times 3, 4 and 5 July 1957. 
59  (1915) 26 DLR 164. 
60  (1957) 2 Brit J Admin Law at 243. In that case the Council conceded
liability for misfeasance if damage were proved. 
61  (1915) 26 DLR at 168-169 per Idington J, 182 per Duff J, 183-184 per
Anglin J. 
62  (1986) QB at 740 per Mann J; on appeal (1986) QB at 777 per Oliver LJ 
63  (1973) VR at 720. 
64  (1959) VR at 293 per Smith J. 
65  See James v. The Commonwealth (1939) 62 CLR at 359-360 per Dixon J. See
also Racz v. Home Office (1994) 2 WLR 23 at 25-28 per Lord Jauncey of
Tullichettle. 
66  (1897) 2 QB 57. 
67  See the cases cited in footnotes 51 and 52 supra. 
68  (1939) 62 CLR 339. 
69  ibid. at 367 per Dixon J. 
70  (1853) 2 El and Bl 216 (118 ER 749). 
71  James v. The Commonwealth (1939) 62 CLR at 370 per Dixon J.  See also
Lumley v. Gye (1853) 2 El and Bl at 231-232 per Erle J (118 ER at 755). 
72  (1939) 62 CLR at 374. 
73  Stallybrass, Salmond's Law of Torts, 9th ed. (1936) at 633.  See also
Heuston and Buckley, Salmond and Heuston on the Law of Torts, 20th ed. (1992)
at 371. 
74  (1939) 62 CLR at 374. 
75  ibid. 
76  ibid. at 371. 
77  ibid. at 372. 
78  ibid. at 372-373. 
79  ibid. at 372. 
80  (1947) 75 CLR 94. 
81  (1961) 109 CLR 105. 
82  Note that s.64 of the Judiciary Act 1903 (Cth) provides that in matters of
federal jurisdiction "(i)n any suit to which the Commonwealth or a State is a
party, the rights of parties shall as nearly as possible be the same ... as in
a suit between subject and subject".  There are similar provisions in all
Australian jurisdictions except Western Australia.  The position in the
Northern Territory is governed by s.5(1)(a) of the Crown Proceedings Act 1993
(N.T.) which provides that "the same procedural and substantive law applies to
proceedings by or against the Crown as in proceedings between subjects".
Before 1994, the position in the Territory was governed by s.7 of the Claims
by and against the Government Act 1978 (N.T.) which made similar provision. 
83  It may be that the findings do not go so far as to reach a positive
conclusion that there was no power, but I shall assume against the appellants
that the finding was as I have stated it above. 
84  Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (1937) 58
CLR 479. 
85  (1860) 13 Moo PC 209 at 241 (15 ER 78 at 90). 
86  (1966) 120 CLR 145. 
87  (1974) 129 CLR 151 at 173-175. 
88  Dunlop v. Woollahra Municipal Council (1982) AC 158 at 172. 
89  cf. Calveley v. Chief Constable of Merseyside (1989) AC 1228 at 1240: 
  "an act done in the exercise or purported exercise by the public officer of
some power or authority with which he is clothed by virtue of the office he
holds". 
90  (1828) 5 Bing 91 at 107-108 (130 ER 995 at 1001); see also R. v. Boston
(1923) 33 CLR 386 at 412. 
91  See Fitzgerald v. Boyle (1861) 1 QSCR 19; Sirros v. Moore (1975) QB 118;
Moll v. Butler (1985) 4 NSWLR 231; Rajski v. Powell (1987) 11 NSWLR 522. 
92  (1703) 2 Ld Raym 938; 3 Ld Raym 320 (92 ER 126; 710). 
93  (1703) 3 Ld Raym at 323 (92 ER at 712). 
94  Lord Holt's judgment in Lord Raymond's Reports contains no reference to
malice but the report is "very imperfect".  The view that Lord Holt had not
regarded the pleading of malice as essential was mistaken:  see Smith's
Leading Cases, 13th ed. (1929) at 283-284; Tozer v. Child (1857) 7 El and Bl
377 at 382 (119 ER 1286 at 1288-1289). 
95  Farrington v. Thomson and Bridgland (1959) VR 286 at 293. 
96  See Brasyer v. Maclean (1875) LR 6 PC 398 at 406, but quaere as to the
mental element that their Lordships had in mind in holding that liability was
established by the "mere fact of the misfeasance":  see Farrington v. Thomson
and Bridgland ibid. 
97  Farrington ibid.; Dunlop v. Woollahra Municipal Council (1982) AC at 172;
Bourgoin S.A. v. Ministry of Agriculture (1986) QB 716 at 740, 777; Little v.
Law Institute of Victoria (1990) VR 257 at 270; Reg. v. Deputy Governor of
Parkhurst; Ex parte Hague (1992) 1 AC 58 at 100. 
98  (1986) QB 716 at 740; and see at 777. 
99  cf. Tampion v. Anderson (1973) VR 715 at 720. 
100  Benning v. Wong (1969) 122 CLR 249 at 256; Sutherland Shire Council v.
Heyman (1985) 157 CLR 424 at 458, 484. 
101  See Takaro Properties Ltd. v. Rowling (1986) 1 NZLR 22 at 39. 
102  (1956) 2 QB 288 at 313. 
103  (1857) 2 H and N 379 (157 ER 157). 
104  cf. Takaro Properties Ltd. v. Rowling (1986) 1 NZLR esp. at 68; but see
Rowling v. Takaro Properties Ltd. (1988) AC 473 at 511-512. 
105  For $305,371. 
106  To $557,611 (being $425,125 plus interest). 
107  (1966) 120 CLR 145 at 156. 
108  ibid. 
109  Section 27 is set out in the joint judgment of Mason CJ, Dawson, Toohey,
Gaudron and McHugh JJ. 
110  (1982) AC 158 at 171. 
111  See, e.g., Jowitt's Dictionary of English Law, 2nd ed. (Burke) (1977),
vol. 2, at 1834, under "unlawful". 
112  See the judgment of Lord Halsbury L.C. in Mogul Steamship Company v.
McGregor, Gow and Co. (1892) AC 25 at 39, to which Lord Diplock referred in
Dunlop v. Woollahra Municipal Council (1982) AC at 171. 
113  (1966) 120 CLR at 156. 
114  ibid. at 149. 
115  ibid. at 152. 
116  ibid. at 156. 
117  See, e.g., the "shades of meaning" of the word "unlawfully" mentioned by
Griffith CJ in Lyons v. Smart (1908) 6 CLR 143 at 147-148. 
118  (1966) 120 CLR at 156. 
119  See, e.g., the reference to "wrongful acts" in the penultimate sentence
on 152; the actual citations (at 153-155) from Bacon's Abridgements, Whaley v.
Laing (1857) 2 H and N 476 (157 ER 196), and Keeble v. Hickeringill (1706) 11
East 574 (103 ER 1127); and the reference (at 155) to the judgments of Bowen
LJ and Fry LJ in Mogul Steamship Company v. McGregor, Gow and Co. (1889) 23
QBD 598 at 614 and 626. 
120  cf., e.g., Sid Ross Agency v. Actors Etc. Assocn (1971) 1 NSWLR 760 at
768-769; Rookes v. Barnard (1964) AC 1129 at 1185-1186, 1233-1235. 
121  See, generally, Takaro Properties Ltd. v. Rowling (1978) 2 NZLR 314 at
338 line 11 to 339 line 23. 
122  Rightly, it was not suggested by the appellants that the making of a
threat which is implicit in some positive act or acts of communication is not
a "positive" act for the purposes of the Beaudesert proposition. 
123  (1966) 120 CLR at 153. 
124  (1610) 9 Co Rep 46b at 50b (77 ER 798 at 806). 
125  (1966) 120 CLR at 153. 
126  Abridgements, vol. 1, at 88. 
127  "The Beaudesert Decision - Raising the Ghost of the Action upon the
Case", (1967) 40 Australian Law Journal 296, 347. 
128  (1978) 2 NZLR at 339. 
129  (1967) 40 Australian Law Journal at 304. 
130  Note that Blackstone includes such an action in his category "Private
Wrongs of Disturbance" under the sub-category "Disturbance of Franchise":  see
Commentaries on the Laws of England, 16th ed. (1825), bk 3, c.16 at 236-237. 
131  (1951) at 4-5. 
132  See CP Roll M 29 Edw III m 241; (1355) YB 29 Edw III Pf 18. Both reports
are reproduced in Kiralfy, The Action on the Case, (1951) at 207-208. 
133  See the examples of such actions given in Kiralfy, op.cit. at 133-135.
And note Blackstone, op.cit., bk 3, c.16 at 236-237. 
134  See Sadler, "Whither Beaudesert Shire Council v. Smith?" (1984) 58
Australian Law Journal 38. 
135  The fact that an intention to injure the plaintiff existed in a
particular case does not negative that support if the report of that case
suggests that that fact was not a basis of the actual decision: see, e.g.,
Carrington v. Taylor (1809) 11 East 571 (103 ER 1126). 
136  See Kiralfy, op.cit. at 10-11, 133. 
137  See ibid. at 10-11. 
138  Blackstone, op.cit., bk 3 at 118-119. 
139  Kiralfy, op.cit. at 10. 
140  See, e.g., Sovar v. Henry Lane Pty. Ltd. (1967) 116 CLR 397 at 405-406. 
141  (1982) AC at 172. 
142  See Bourgoin S.A. v. Ministry of Agriculture (1986) QB 716 at 776-777. 
143  cf. Owen and Gutch v. Homan (1853) 4 HLC 997 at 1035 (10 ER 752 at 767)
per Lord Cranworth LC:  "wilful ignorance". 
144  (1939) 62 CLR 339 at 374. 
145  Salmond's Law of Torts, 9th ed. (1936) at 633.  In his judgment in the
Court of Appeal, Priestley J pointed out that the passage had remained
unchanged since the first edition of the work in 1907.  The substance of the
passage remains in the current edition subject to the opening statement of
lack of authority being deleted in favour of reference to subsequent approving
authority:  see Heuston and Buckley, Salmond and Heuston on the Law of Torts,
20th ed. (1992) at 379. 
146  (1964) AC at 1205. 
147  (1939) 62 CLR at 374. 
148  ibid. at 366-367, 374. 
149  ibid. at 367. 
150  ibid. at 366-367, 373. 
151  ibid. at 373; and see also Werrin v. The Commonwealth (1938) 59 CLR 150
at 157; Mason v. New South Wales (1959) 102 CLR 108 at 135, 144; Central
Canada Potash Co. Ltd. v. Government of Saskatchewan (1978) 88 DLR (3d) 609 at
639ff.