Misfeasance in Pubic Office: Raw Statistics from the Australian Front Line

This article responds to recent suggestions that the number of claims for the tort of misfeasance in public office is increasing. It provides a detailed review of litigation statistics in Australia since the cause of action was revived in the 1950s, detailing the various types of claim litigated and the most common reasons why they tend to fail. It also seeks an explanation as to why it is that litigation continues to increase when success rates average less that 4%. Whilst the reasons are complex, we suggest that the surge in litigation can be understood as part of a broader pattern in which private enforcement techniques are increasingly being used in recent years as a reaction to the continued expansion of state activity and the failure of public systems. If this is so, then the phenomenon seems likely to continue until such time as the current balance of public and private interests in cases involving harmful maladministration is more fully reconsidered.