Elements of the tort

The elements of the tort are as follows:

  • The defendant must be the holder of a public office.
  • The defendant must have purportedly exercised a power that was an incident of that office.
  • The defendant’s exercise of power must have been invalid or otherwise lacking lawful authority.
  • The exercise of power must have been accompanied by one or other of the following forms of ‘bad faith’:
    • The defendant must have exercised the power knowing that he or she was acting in excess of power AND with the intention to cause harm to the plaintiff (sometimes referred to as ‘targeted malice’).
    • The defendant must have been recklessly indifferent to whether the act was beyond power AND recklessly indifferent to the likelihood of harm being caused to the plaintiff.
  • The exercise of power must have been productive of loss.