McGill Law Journal ~ Revue de droit de McGill
SOME AUSTRALIAN REFLECTIONS
ON RONCARELLI V. DUPLESSIS
Mark Aronson*
Roncarelli v. Duplessis figures far more
frequently in Australias secondary literature
than in its court decisions, and it is noted not
for its invalidation of Prime Minister Du-
plessiss actions, but for its award of damages
where judicial declaration of invalidity would
usually be the only remedy. Invalidating Du-
plessiss interference with Roncarellis liquor li-
cence would have been the easy part of the case
had it been tried in Australia. Australian stat-
utes afforded good protection to liquor licensees,
and general administrative law principles con-
fined seemingly unfettered discretionary powers
in less solicitous statutory regimes. In addition,
the constitutional abolition of internal trade
barriers used to be taken as banning unfettered
regulatory powers over interstate traders.
Duplessiss tort liability was the hard part.
His assumption of legal power was not deliber-
ate, but it was extraordinarily indifferent to
questions of legality. Justice Rand character-
ized this as malice, which in turn triggered li-
ability to a uniquely public law tort known
nowadays as misfeasance in public office. That
tort is likely to cover more forms of non-
deliberate official misconduct in Canada than in
Australia, whose High Court usually avoids
open-ended legal principles, particularly those
according immediate operative force to substan-
tive conceptions of the rule of law.
En Australie, laffaire Roncarelli c. Du-
plessis est plus souvent traite dans la doctrine
que dans la jurisprudence. Elle est connue non
pas pour son invalidation des actes du Premier
ministre Duplessis, mais pour son octroi de
dommages-intrts dans une situation o une
dclaration judiciaire dinvalidit aurait norma-
lement constitu le seul recours possible. Si la
cause avait t entendue en Australie,
linvalidation de linterfrence de Duplessis au-
rait t une question facile rsoudre. Les lois
australiennes offraient une forte protection aux
dtenteurs de permis dalcool et les principes du
droit administratif confinaient les pouvoirs dis-
crtionnaires sans entraves aux rgimes statu-
taires dintrt moindre. De plus, labolition
constitutionnelle des obstacles au commerce in-
ternational tait considre comme interdisant
lexercice de pouvoirs rgulateurs sans entraves
sur les commerants effectuant du commerce
entre tats.
La question de la responsabilit dlictuelle
de Duplessis tait la plus difficile. Son utilisa-
tion du pouvoir lgal ntait pas dlibre, mais
illustre une indiffrence flagrante face aux
questions de lgalit. Le juge Rand a qualifi
cette attitude de malice , ce qui a engendr la
responsabilit de Duplessis pour un dlit propre
au droit public, aujourdhui appel faute dans
lexercice dune charge publique. Au Canada, ce
dlit est susceptible de couvrir plus de types
dinconduite non dlibre de la part dofficiers
du gouvernement quen Australie o la High
Court of Australia vite gnralement les prin-
cipes juridiques non limitatifs, plus particulire-
ment ceux qui rendent immdiatement opra-
tionnelles les conceptions substantives de la
primaut du droit.
* Law Faculty, University of New South Wales. I would like to thank Jim Davis, Carol
Harlow, and John Randall for their assistance at different stages of this paper. I would
also like to thank all of the contributors to the September 2009 symposium on Ron-
carelli, especially David Mullan.
Citation: (2010) 55 McGill L.J. 615 ~ Rfrence : (2010) 55 R.D. McGill 615
Mark Aronson 2010
616 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
II.
Legalism and the Rule of Law
Malice, Damages, and the Rule of Law
Conclusion
617
618
627
639
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 617
Introduction
For two days in September 2009, more than a dozen academics pored
over different aspects of Roncarelli v. Duplessis,1 debating different vi-
sions of what it might first have meant, what it might now mean, its po-
litical significance, and its legal importance, both normative and doc-
trinal. My contribution is to look for some of the doctrinal consequences of
Justice Rands deployment of a substantive understanding of the rule of
lawa principle that he said requires recourse or remedy for adminis-
trative action dictated by … the arbitrary likes, dislikes and irrelevant
purposes of public officers acting beyond their duty.2 It is a contribution,
however, that I offer with some diffidence, because it is obviously fraught
for an Australian lawyer to look at a famous old Canadian case, particu-
larly considering that Australias courts and tribunals have given it only
the briefest attention.3 A foreigner reading Roncarelli is ill-equipped to
appreciate fully both its provenance and its trajectory, and is tempted to
take its judgments at face value, as if each of its apparent issues had been
of equal importance, novelty, and difficulty in its day. It might therefore
be more productive if I focus largely on Justice Rands reasons for award-
ing damages to Frank Roncarelli, and compare those with the likely re-
sponse (both then and now) of the High Court of Australia had it been
faced with evidence of such an obvious abuse of power as had occurred in
Roncarelli.
I look first at Justice Rands need to deploy the rule of law to get
around the Alcoholic Liquor Act,4 which seemingly invested the Attorney
General with unfettered power.5 Australian courts would have gotten
around that problem without invoking the rule of law. General adminis-
trative law principles had long established some inroads into statutory
grants of discretionary powers. Some statutory licensing regimes provided
their own protective mechanisms, and business interests operating across
state lines received constitutional protection that the High Court of Aus-
tralia read as limiting administrative discretion. Second, I look at Justice
Rands appeal to the rule of law to deliver a damages remedy to Ron-
carellia remedy whose implicit predicate was the need specifically to
develop public law principles of tort liability to meet those exceptional
1 [1959] S.C.R. 121, 16 D.L.R. (2d) 689 [Roncarelli cited to S.C.R.].
2 Ibid. at 142.
3 An electronic search of Australia’s largest case base (Australasian Legal Information
Institute
mentioning Roncarelli.
4 R.S.Q. 1941, c. 255.
5 The defendant was both prime minister and Attorney General of Quebec. The most ob-
vious legal error the defendant made was in his capacity as Attorney General, in as-
suming that he could exercise a power vested in another by statute.
618 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
cases of public officials whose gross abuse of their power harms individu-
als without violating any of their legally protected interests. The public
tort has tracked in broadly similar fashion in Canada, Britain, and Aus-
tralia, but Australias reluctance to use the language of the rule of law as
an operative legal principle might soon see some significant divergence.
I. Legalism and the Rule of Law
Roncarelli needed judicial protection because the relevant statute gave
him none. His annually renewable liquor licence was at the mercy of a
baldly stated bureaucratic discretion: The Commission may [cancel] any
permit at its discretion.6 The Alcoholic Liquor Act required neither hear-
ings nor reasons, and it stipulated no grounds. Despite this, Justice Rand
deployed several standard interpretive techniques and one not-so-
standard technique (the rule of law) to supply the omission of the legisla-
ture.7
Roncarelli would have had considerably more statutory protection if
he had been trading in Australias Sydney instead of Canadas Montreal.8
In Australia, he would have needed a liquor permit, which was less
regulated than a publicans licence and easier to obtain.9 Annual renew-
als of Australian permits were virtually automatic.10 Licences could be
cancelled for serious criminal convictions or for at least four lesser convic-
tions over the previous year, and permits were revocable on the grounds
of the neighbourhoods interests or any other reasonable cause. Magis-
trates determined all grants and revocations, with very generous appeal
rights. Licences and permits passed to their holders spouse or adult chil-
dren in the event of death. The same applied where licensees were im-
prisoned for felony, and appropriately adapted transmission provisions
also applied for both licences and permits in the event of bankruptcy and
insanity. Therefore, even though they needed annual renewal, the per-
mits and licences were a good deal more secure in Sydney than in Mont-
real.
6 Alcoholic Liquor Act, supra note 4, s. 35(1).
7 Cooper v. Board of Works for the Wandsworth District (1863), 14 C.B. (N.S.) 180 at 194,
143 E.R. 414, Byles J.
8 At the time of the events that gave rise to the Roncarelli litigation, the relevant Austra-
lian statutes were Liquor Act 1912 (N.S.W.) (which conferred jurisdiction on the magis-
trates) and Justices Act 1902 (N.S.W.) (which granted rights of appeal from the magis-
trates).
9 The criteria related to local needs and amenity, the condition of the premises, appli-
cants compliance with the relevant laws, and their character and reputation.
10 Although the police, local residents, and commercial competitors could lodge objections
on the same grounds, that applied to objections to first-time applications.
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 619
Although Sydneys restaurateurs had greater legislative protection
than their Montreal counterparts, there were other regulatory domains
that appeared on their face to be as discretionary as that in Roncarelli.11
Even these, however, would have been judicially construed so as to re-
quire that the discretions be exercised by reference only to considerations
having some rational and functional connection to the legislations regula-
tory objects. Furthermore, in its inimitable dense, grinding judicial
style,12 the High Court of Australia back in Roncarellis time was inter-
preting a constitutional guarantee of free trade across state borders as
necessarily requiring statutory limits to administrative discretion. For its
part, the High Court of Australia in these cases scarcely mentioned the
highest ideals of the rule of law, but it made very clear its concerns about
the potential for the executives arbitrary interference with the rights of
private property.13 Justice Rands judgment style is less technical than
that of the High Court of Australia, but his invocation of the rule of law
may have been triggered by similar concerns for middle-class status and
its members property rights.
There are undoubtedly several reasons why those in the liquor trade
had more legislated protections in Sydney than in Montreal in the late
1940s, but it has been a long time since liquor and the rule of law formed
part of the same debate in Australia. It has been so long, in fact, that no
one used the language of the rule of law back then; rather, they spoke of
the rights of Englishmen, and the foremost of these were the rights of
person and property.
The present Chief Justice of New South Wales wrote that Australia
has experienced only two periods of flagrant breach of the rule of law.14
His account of history was too kind, but his first example did involve alco-
hol. The event was the military overthrow of Governor Bligh (his second
mutiny) in 1808, followed by an interregnum of almost two years of seri-
ous instability. It eventually became known as the Rum Rebellion, al-
though it in fact had almost nothing to do with alcohol and a lot to do with
11 For example, Regulation 9(2) of the National Security (Economic Organization) Regula-
tions 1944 (Cth.) invested the Treasurer in his absolute discretion to impose condi-
tions upon a person seeking permission to purchase land. The High Court of Australia
held that so far as it related to land transactions, the Treasurer’s discretion was con-
fined to considerations relevant to the property’s value and use, and therefore could not
be exercised to require purchasers to invest in war bonds: Shrimpton v. Commonwealth
(1945), 69 C.L.R. 613, [1945] A.L.R. 125 [Shrimpton cited to C.L.R.] (where many of the
cases concerning seemingly unfettered discretions are discussed).
12 Hon. Sir Anthony Mason, Justice of the High Court in Timothy L.H. McCormack &
Cheryl Saunders, eds., Sir Ninian Stephen: A Tribute (Carlton, Australia: Miegunyah
Press, 2007) 3 at 5.
13 For the leading cases, see infra note 33.
14 Hon. James Spigelman, Bicentenary of the Coup of 1808 (2008) 12 Legal Hist. 1 at 13.
620 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
rights of property, speculative development, due process, and (being Syd-
ney) harbour views.15
Like any other countrys ultimate court of appeal, the High Court of
Australia is not averse to talking about the rule of law, or indeed to sing-
ing its praises. However, except where this is a rhetorical flourish, the
songs are usually about identifying the structure, processes, and values of
the judicial branch of Australia. The immediate aim of the High Court of
Australias version of the rule of law is the protection of the courts them-
selves, although, of course, it has been claimed that there are trickle-down
benefits for everyone else.16 Beyond the protection of the judicial branch,
and in the absence of either an entrenched or a statutory charter of rights,
the High Court of Australias hymn sheet is necessarily more brief than
that of any comparable appellate court. Judicial review, for example, may
deliver on rule of law values, but they have no immediate normative op-
eration.17 Similarly, the High Court of Australia has rejected an attempt
to create a new constitutional tort of breaching the rule of law by causing
intentional harm.18 This court wants rules, and the smaller and more pre-
cise the rules are, the more comfortable it feels.19 It expresses hostility to
top down reasoning,20 and its commitment to doctrinal stability is so
strong that on one view, counsel needs leave before questioning a High
Court of Australia precedent, at least in constitutional cases.21
15 See also Rt. Hon. H.V. Evatt, Rum Rebellion: A Study of the Overthrow of Governor
Bligh by John Macarthur and the New South Wales Corps (Sydney: Angus & Robert-
son, 1938). The second event involved a racist colonial premier appealing to popular
prejudice by refusing, for a short time, to obey a habeas corpus designed to let Chinese
passengers disembark.
16 The High Court of Australias most famous invocation of the rule of law was in Austra-
lian Communist Party v. Commonwealth of Australia ([1951] HCA 5, 83 C.L.R. 1 at
193). In this case, it was held that a statute with appalling consequences for civil liber-
ties was invalid for a number of reasons, but largely for its attempt to prevent the court
from having the last word on a particular issue. For a similar, more recent response to
an ouster clause, see Plaintiff S157/2002 v. Commonwealth of Australia, [2003] HCA 2,
211 C.L.R. 476 at paras. 5, 103-104 [Plaintiff S157/2002].
17 Re Minister for Immigration and Multicultural Affairs, Ex parte Lam, [2003] HCA 6,
214 C.L.R. 1 at para. 72, 195 A.L.R. 502, McHugh and Gummow JJ.
18 Northern Territory of Australia v. Mengel, [1995] HCA 65, 185 C.L.R. 307, 129 A.L.R. 1
[Mengel] (discussed in Part II below).
19 See Hon. Justice Dyson Heydon, Judicial Activism and the Death of the Rule of Law
(2004) 10 Otago L. Rev. 493, first published in Quadrant (JanuaryFebruary 2003) 9.
20 See Bofinger v. Kingsway Group Ltd., [2009] HCA 44, 239 C.L.R. 269 at paras. 90-94,
260 A.L.R. 71. See also Mark Aronson, Process, Quality, and Variable Standards: Re-
sponding to an Agent Provocateur in David Dyzenhaus, Murray Hunt & Grant
Huscroft, eds., A Simple Common Lawyer: Essays in Honour of Michael Taggart (Ox-
ford: Hart, 2009) 5 at 22-28.
21 See Permanent Trustee Australia Ltd. v. Commissioner of State Revenue, [2004] HCA
53, 220 C.L.R. 388 at paras. 176-81, 211 A.L.R. 18.
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 621
By the time that Roncarelli was decided, Australia already had a
string of precedents for confining statutory discretions to considerations
that are functionally relevant to the regulatory scheme in question. As
importantly, many of its regulatory schemes contained the sort of protec-
tive detail that was so sadly lacking in Roncarelli. Indeed, so far as they
affected multistate businesses, many of Australias regulatory laws tried
to avoid wide discretionary power precisely because the High Court of
Australias highly formalistic constitutional learning took the breadth of a
regulatory discretion as an important indicator of constitutional invalid-
ity.
Abolition of trade barriers between the Australasian colonies was one
of the principal drivers behind the decision to join a federal union, but the
constitutional expression of that ideal was very poorly drafted. Section 92
of the Australian Constitution provided that trade, commerce, and inter-
course among the States … shall be absolutely free, but for almost ninety
years, the biggest question was: Freeindeed, absolutely freeof
what?22 Tariffs, obviously, but what else? After roughly 140 attempts at
answering that questionattempts that, for the most part, deliberately
prioritized the purity of analytical doctrine over functionality of out-
comethe High Court of Australia came up with a functional test justi-
fied by reference to the sections drafting history. Business was to be free
of legislative and administrative measures that discriminated between in-
state and interstate trade or commerce for protectionist reasons or with
protectionist effect.23 Until that point, however, the court had propounded
all sorts of confusing tests. It was obvious that section 92 was not meant
to invalidate all laws and administrative practices that might apply to in-
terstate business. Even laissez-faire economics of the kind leading up to
the recent global financial crisis tolerated some law affecting markets and
regulating the production and exchange of goods and services. Besides,
the High Court of Australia always denied constitutionalizing laissez-faire
economics24 or any other theory of economics.25 The High Court of Austra-
lia often held that an ordered society26 was obviously acceptableindeed
22 For the most entertaining (and thoroughly political) history of the High Court of Aus-
tralias treatment of s. 92, see David Marr, Barwick (Sydney: George Allen & Unwin,
1980) c. 6-7, 11, 17.
23 Cole v. Whitfield, [1988] HCA 18, 165 C.L.R. 360 at 385, 78 A.L.R. 42 [Cole].
24 See e.g. Home Benefits Pty. Ltd. v. Crafter, [1939] HCA 12, 61 C.L.R. 701 at 731-32;
Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd., [1939] HCA 28, 62 C.L.R. 116 at
151.
25 North Eastern Dairy Co. Ltd. v. Dairy Industry Authority (N.S.W.), [1975] HCA 45, 134
C.L.R. 559 at 615, 7 A.L.R. 433.
26 See e.g. Hughes and Vale Pty. Ltd. v. New South Wales (No. 2), [1955] HCA 28, 93
C.L.R. 127 at 159, 171, 219 [Hughes and Vale (No. 2)]; Uebergang v. Australian Wheat
Board, [1980] HCA 40, 145 C.L.R. 266 at 281, 305, 32 A.L.R. 1 [Uebergang]; Miller v.
622 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
necessaryand with no difference in meaning, this was sometimes ren-
dered in terms of ordered liberty.27 The real difficulties lay in defining
what this might mean.
Ordered liberty was the term that Sir Owen Dixon used in his
speech on the occasion of his swearing-in as Chief Justice of the High
Court of Australia in 1952.28 Sir Owen swore fealty to the rule of law, but
in a passage that continues to puzzle and even outrage the academy, he
claimed that the best way that the courts could enforce the rule of law
was by shunning any attempt at producing constructive outcomes, and
instead adopting a method of strict and complete legalism.29 In an obvi-
ous reference to section 92 of the Australian Constitution, he said that the
High Court of Australias administration of the rule of law offers a recon-
ciliation of ordered liberty with planned control,30 In those days, that
meant that the scales were weighted very heavily against the administra-
tive state and in favour of ordered liberty, which usually boiled down to
an absolute minimum of regulatory interference with interstate trade or
commerce. Despite the courts denial of a commitment to being laissez
faire, some of its decisions had that practical effect.31 One of the exten-
sions of ordered liberty that the cases had allowed in those days was for
regulationnot all regulation, but only those shown to be minimally ac-
ceptable or necessary.32 These distinctions were obviously fraught, but one
approach was to invalidate any regulatory scheme that was too discre-
tionary. To pass constitutional muster under that approach, regulatory
schemes had to stipulate the considerations by which discretionary power
was to be controlled, and those considerations were to exclude any refer-
ence to whether the relevant activity had an out-of-state origin.33
TCN Channel Nine Pty. Ltd., [1986] HCA 60, 161 C.L.R. 556 at 629, 67 A.L.R. 321
[Miller]; Cole, supra note 23 at 403.
27 Duncan v. Queensland, [1916] HCA 67, 22 C.L.R. 556 at 592, cited in Mikasa (N.S.W.)
Pty. Ltd. v. Festival Stores, [1972] HCA 69, 127 C.L.R. 617 at 653.
28 Swearing In of Sir Owen Dixon as Chief Justice (1952), 85 C.L.R. xi at xv.
29 Ibid. at xiv-xv.
30 Ibid. at xv.
31 See Uebergang, supra note 26 at 309-10; Miller, supra note 26 at 571, 618; Cole, supra
note 23 at 403.
32 Miller, supra note 26 at 600.
33 See Hughes and Vale Pty. Ltd. v. New South Wales (No. 1) (1954), 93 C.L.R. 1 at 26-27
(P.C. on appeal from H.C.A.); Hughes and Vale (No. 2), supra note 26 at 162-63; Ack-
royd v. McKechnie, [1986] HCA 43, 161 C.L.R. 60 at 68, 66 A.L.R. 287. As Dawson J.
summarized in Miller, it is clearly established that a prohibition, subject only to an un-
fettered executive discretion to issue or refuse a licence, goes beyond regulation which
may be permissible having regard to the guarantee afforded by s. 92 (supra note 26 at
628).
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 623
By the time that Roncarelli was decided, therefore, the Australian le-
gal context had some well-established public law constraints on the exer-
cise of regulatory discretion. That is not to deny the prevalent fear of an
ever-expanding administrative state. Nor is it to deny concerns over abso-
lute discretionary powerthe common law had not yet acquired enough
self-confidence (or hubris) to confront such a concept head-on.34 However,
the legal landscape was already populated by various regulatory regimes
in which administrative discretion was not absolute but constrained. It
was constrained by judicial supervision according to generalized princi-
ples that were paying less and less heed to distinctions between privileges
and rights,35 and between administrative and quasi-judicial powers or
functions. As in the case of restaurateurs, some intrastate businesses de-
pendent on licences or permits were well protected by statute. Others
whose regulatory regimes lacked explicit constraints were nevertheless
protected by well-established techniques of statutory interpretation,
whereby the judges implied functionally relevant limits to discretionary
power based on the subject matter, scope, and purposes of the relevant
legislation.36 The same interpretive techniques were used to save legisla-
tion from constitutional invalidation for overreaching the ambit of federal
legislative power. The regulation in Shrimpton v. Commonwealth, for ex-
ample, gave the treasurer an absolute discretion to impose such condi-
tions as he thinks fit when granting consent to certain property trans-
fers.37 However, Chief Justice Latham, Justice McTiernan, and Justice
Dixon read the provision down so as to exclude arbitrary or personal con-
siderations, or any other considerations functionally unrelated to the
34 Nowadays, the High Court of Australia doubts that there can ever be truly unfettered
discretion in the federal arena, because such discretion would exceed constitutional
limitations on legislative competency. See Plaintiff S157/2002, supra note 16 at paras.
102-103. State legislatures have fewer limitations on legislative competency, but very
plain words would be needed before state grants of unfettered power were to be read
literally. See Hot Holdings Pty. Ltd. v. Creasy, [1996] HCA 44, 185 C.L.R. 149 at 171,
134 A.L.R. 469, citing F.A.I. Insurances Ltd. v. Winneke, [1982] HCA 26, 151 C.L.R. 342
at 368. This is particularly the case where fundamental rights or freedoms are involved.
See e.g. K-Generation Pty. Ltd. v. Liquor Licensing Court, [2009] HCA 4, 237 C.L.R. 501
at para. 47, 252 A.L.R. 471; R & R Fazzolari Pty. Ltd. v. Parramatta City Council,
[2009] HCA 12, 237 C.L.R. 603 at para. 43, 254 A.L.R. 1. In Gerlach v. Clifton Bricks
Pty. Ltd., Kirby J. thought that no Australian parliament could legislate for [a]bsolute
discretions because they are a form of tyranny ([2002] HCA 22, 209 C.L.R. 478 at
para. 69).
35 But Barwick C.J. protected a taxi owners licence by treating it as a species of property:
Banks v. Transport Regulation Board (Vic.), [1968] HCA 23, 119 C.L.R. 222 at 230-32.
36 See e.g. R v. Trebilco, Ex parte F.S. Falkiner & Sons Ltd., [1936] HCA 63, 56 C.L.R. 20
at 32; Shire of Swan Hill v. Bradbury, [1937] HCA 15, 56 C.L.R. 746 at 757-58.
37 Shrimpton, supra note 11 at 618.
624 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
proper operation of the defence powerthe only relevant head of legisla-
tive power available to federal legislators.38
The High Court of Australias restrictive approach to regulatory con-
trols on interstate business was therefore consistent with a more general-
ized leaning away from broad discretionary powers, although in domains
protected by section 92 of the Australian Constitution, the High Court of
Australia was able to go one step further by insisting that regulatory
statutes had to minimize discretionary power. Where statutes challenged
for violating section 92 lacked explicit restrictions on discretionary power,
government counsel sometimes defended that the relevant discretion was
not to be read literally because it was subject to the common laws general
administrative law principles.39
Considerations of class and property are not so prominent in current
discussions of the rule of law,40 but if the rule of law itself transitioned
from the rights of Englishmen, then it is right to accord some room to
these considerations. One suspects that in Roncarellis time, money, class,
and economic freedom figured at least as prominently as considerations of
equality, free speech, freedom of association, and freedom from discrimi-
nation on religious grounds. Each of these considerations is an important
topic, of course, but not one of them scored an explicit mention in Ron-
carelli, although they did figure in earlier installments of the mini-series
dubbed the implied bill of rights cases.41
Justice Rand discussed only one of what we might now call Ron-
carellis fundamental rights or freedoms, and it was an economic freedom:
his freedom to continue in his chosen (indeed, inherited) vocation as a re-
spectable upmarket restaurateur, so long as he complied with the law
generally and with the rules pertaining specifically to licensed restau-
rants. If that looks like too narrow a description of Roncarellis economic
rights, I would point to the judgment itself, which stressed his respectabil-
ity and middle-class qualities. He ran a restaurant of a superior class,
and he was well-educated and of good repute.42 He had leased a meeting
hall to the Jehovahs Witnesses for their use in Sherbrooke, but that was
38 Ibid. at 619 (Latham C.J.), 629 (Dixon J.), 632 (McTiernan J.).
39 See e.g. Miller, supra note 26 at 562-63.
40 Murphy J. was the only High Court of Australia judge to attack legal doctrine on
overtly class lines. See Attorney-General (Commonwealth), Ex rel. McKinlay v. Com-
monwealth, [1975] HCA 53, 135 C.L.R. 1 at 76, 7 A.L.R. 593; Heatley v. Tasmanian Rac-
ing and Gaming Commission, [1977] HCA 39, 137 C.L.R. 487 at 496, 14 A.L.R. 519;
Forbes v. New South Wales Trotting Club Ltd., [1979] HCA 27, 143 C.L.R. 242 at 273-
76, 25 A.L.R. 1; Neal v. R., [1982] HCA 55, 149 C.L.R. 305 at 316-17, 42 A.L.R. 609.
41 See Eric M. Adams, Building a Law of Human Rights: Roncarelli v. Duplessis in Cana-
dian Constitutional Culture (2010) 55 McGill L.J. 437.
42 Roncarelli, supra note 1 at 130.
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 625
categorically irrelevant (as an unimpeachable right of property).43 Impor-
tantly, it seems, he had not himself distributed any of the tracts that had
so upset the general public on religious grounds,44 nor the one that ap-
peared to have upset the government on more self-serving grounds.45 The
only possible marks against his character, therefore, were the facts that
he was himself a Jehovahs Witness and that he had stood bail for his co-
religionists many timesboth being perfectly legal and utterly irrelevant
to the way he conducted his business.46 The Attorney General had delib-
erately destroyed the vital business interests of a citizen,47 and sen-
tenced him to vocational outlawry.48 As for the business perspective, the
licences may legally have been a privilege, but they were vital to a su-
perior class restaurant, and licensees invested considerable money and
effort into their businesses on the assumption that their licences would
continue.49 Importantly, Roncarellis citizenship status50 would in previous
times have allowed him to conduct his perfectly ordinary51 and legiti-
mate52 business activities free of state interference, and that was a major
driver of Justice Rands judgment. Licensing legislation was steadily en-
veloping occupations and businesses of this nature previously free of it;53
indeed, economic activities more generally were coming under regula-
tory control.54 Privileges they may have been, but Justice Rand thought
it essential that their grant, administration, and revocation be not arbi-
trary but impartial and governed by considerations relevant only to the li-
censed or regulated activity in question.55
An ungenerous reader might read Justice Rand as having taken a
stand for the middle class, self-employed, small business person, who is so
vital to economic life and so much in need of protection from the adminis-
trative state. And he had been able to do this without having to turn Ron-
43 Ibid. at 132.
44 Ibid.
45 This was the tract that accused the government of savage persecution (ibid. at 133).
46 Ibid. at 132.
47 Ibid. at 137.
48 Ibid. at 141.
49 Ibid. at 139-40.
50 Ibid. at 141.
51 Ibid. at 144.
52 Ibid. at 140.
53 Ibid.
54 Ibid. at 142.
55 Ibid. at 140.
626 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
carellis liquor licence into a species of property.56 In a telling qualifica-
tion, he even added that his judgment was not intended to protect gov-
ernment workers.57 Their rights were doubtless left to labour law, which
was a more elaborately protective affair those days than now.
If Justice Rand had been concerned only with Roncarellis economic
rights, then his judgment would have been little more (and perhaps a lit-
tle less) than what was then a popular justification for a rapid expansion
of judicial review doctrine to catch up with and counterbalance an admin-
istrative state that had grown fearfully large in most common law juris-
dictions. But it would clearly be unfair to treat Justice Rand as a Cana-
dian version of Lord Denning, who was ever-protective of middle-class vir-
tue whilst denying it to the working class (particularly if they were union-
ized).58 Roncarellis middle-class status and virtues, and even his ill-
defined citizenship, can lead one to different places. Most obviously, they
might have placed him in the category of a deserving claimant. But Lord
Denning would never have thought him deserving; Roncarelli rocked the
boat, challenged police,59 frustrated the forces of law and order, and did all
this with profits derived from government beneficence in the form of a
discretionary licence.60
Justice Rands style was less concerned with analytical precision of
doctrine than that of Justice Dixon, although they each saw the rule of
law as something that could help civilize the burgeoning regulatory states
interference with legitimate business interests, which had previously
been free of bureaucratic impediment. And Justice Rand was more gener-
ous than Justice Dixon when it came to the question of remedies. Justice
56 However, Rand J. did state that the permit’s transferability (usually a hallmark of
property) was most pertinent (ibid.). Cf. ibid. at 159, Martland J.; ibid. at 170, Cart-
wright J.
57 Ibid. at 142. Government employees still rank very low in the pecking order of adminis-
trative law. See e.g. Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 291
D.L.R. (4th) 577.
58 See Paul Davies & Mark Freedland, Labour Law in J.L. Jowell & J.P.W.B. McAuslan,
eds., Lord Denning: The Judge and the Law (London, U.K.: Sweet & Maxwell, 1984)
367.
59 At least in the context of the Birmingham Six and the Guildford Four, Lord Denning
thought it better to maintain public confidence in the justice system than to acknowl-
edge that innocent people were in prison because of police lies. He even suggested that
it would have been better to hang them all. All the major media ran the stories. See e.g.
Andrew Culf, Remarks on Guildford Four Bring Legal Action Threat: Repentant
Denning Says He Was Misled The Guardian (17 August 1990) 9; Nick Cohen & Will
Bennett, Guilford Four consider suing Former Master of the Rolls The Independent
(17 August 1990); Lord Denning Claims Remarks in the Spectator Were Taken Out of
Context The Times (23 August 1990).
60 Cartwright J., in dissent, thought that this last consideration was permissible (Ron-
carelli, supra note 1 at 164).
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 627
Dixon would have had no trouble in invalidating the Attorney Generals
actions. In Australia, Roncarelli would have been spoiled for choice in
terms of grounds of invalidity. The permit cancellation was based on im-
permissible considerations, taken for an impermissible purpose, and
taken either by the wrong person or by the right person acting under the
Attorney Generals dictation. The lifelong ban on Roncarelli would have
been invalid on the same grounds and also because it attempted to fetter
the future exercise of a discretionary power. None of that would have been
remarkable. But Justice Rand upheld Roncarellis right to damages, and
from an Australian pespective, that was indeed exceptional. I suspect that
in both countries, damages for unlawful licence cancellation would still be
exceptional.
II. Malice, Damages, and the Rule of Law
My purpose in this part of the paper is to ask why Justice Rand stated
that the Attorney General had behaved maliciously or in bad faith. Those
are very serious conclusions and at first glance, one might wonder
whether they were necessary, especially because Justice Rand defined
them so broadly as to strip them of any necessary connection with dishon-
esty or lack of public purpose. Furthermore, the other majority judgments
refrained from such conclusions.
Justice Rands definition of malice started out unremarkably: Malice
in the proper sense is simply acting for a reason and purpose knowingly
foreign to the administration.61 But it was clear that the Attorney Gen-
eral thought that he was acting in the public interest and that his powers
were unfettered. He did not know that his reasons and purpose were ultra
vires, and so Justice Rand quickly expanded his definition to include con-
duct that the Attorney General should have known was unauthorized:
Good faith in this context, applicable both to the respondent
and the general manager, means carrying out the statute according
to its intent and for its purpose; it means good faith in acting with a
rational appreciation of that intent and purpose and not with an im-
proper intent and for an alien purpose; it does not mean for the pur-
poses of punishing a person for exercising an unchallengeable right;
it does not mean arbitrarily and illegally attempting to divest a citi-
zen of an incident of his civil status.62
It is doubtful that Justice Rand invoked malice to outflank what would
otherwise have been the immunity of quasi-judicial functions from dam-
ages actions,63 because his preference was to treat the Attorney Generals
61 Ibid. at 141 [emphasis added].
62 Ibid. at 143.
63 See ibid. at 141. Here, Rand J. referred to the dissentients in McGillivray v. Kimber
((1915), 52 S.C.R. 146, 26 D.L.R. 164).
628 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
functions as administrative.64 Further, only Justice Cartwright (in dis-
sent) had thought that the characterization of the Attorney Generals
functions was important.65 It was submitted that the importance of mal-
ice for Justice Rand was that he saw it as far more egregious in a public
official than a private person, and it was that perception which under-
pinned his assertion that Roncarelli could avail himself of a wholly public
tort.
Of the majority, only Justice Rand fully acknowledged the difficulty in
theorizing a basis for awarding damages to Mr. Roncarelli, and even he
left some fairly big question marks. I agree with David Mullans observa-
tion that one cannot be entirely sure how Justice Rand connected the two
components of an excess of discretionary power on the one hand (some-
thing more obviously relevant had the case been brought against the Liq-
uor Commissioner), and on the other hand, the Attorney Generals usur-
pation of a power that belonged only to the Liquor Commissioner.
There was no obviously applicable private law tort, and the House of
Lords had established in Allen v. Flood66 that in the absence of a conspir-
acy (and none was pleaded in Roncarelli), the intentional and malicious
infliction of economic harm upon a plaintiff was perfectly acceptable mar-
ket behaviour. But the Attorney General had acted as a public official, not
as a player in the market, and that was Justice Rands critical distinction.
When tort doctrine invoked a distinction between public and private func-
tions (or defendants), it was usually in order to reduce government liabil-
ity. By contrast, Justice Rands distinction served to take him in the oppo-
site direction.
His first distinction was that Roncarelli was a public law matter:
Here the act done was in relation to a public administration affect-
ing the rights of a citizen to enjoy a public privilege, and a duty im-
plied by the statute toward the victim was violated. The existing
permit was an interest for which the appellant was entitled to pro-
tection against any unauthorized interference, and the illegal de-
struction of which gave rise to a remedy for the damages suffered. In
Allen v. Flood there were no such elements.67
Justice Rand distinguished Allen v. Flood in one or possibly two ways.
In other words, malice in the sense of the intentional infliction of harm
was actionable if (but only if) there was either a conspiracy (as per Allen v.
64 Roncarelli, supra note 1 at 141.
65 Indeed, for Cartwright J., the characterization of the Attorney Generals actions pre-
sented Roncarelli with a Catch-22 dilemma. The defendant’s discretion was either
administrative and therefore unfettered, or else it was quasi-judicial and therefore
immune from a damages action in the absence of malice (ibid. at 167-69).
66 (1897), [1898] 1 A.C. 1, [189599] All E.R. Rep. 52 [Allen v. Flood].
67 Roncarelli, supra note 1 at 143.
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 629
Flood), or if the tortfeasor was a public official acting beyond his or her
powers. The plaintiff had also argued that the defendant might have been
liable for intentional interference with the plaintiffs permit even if there
had been no excess of power. Apart from noting that such a tort would
need to be confined to public functions if it were to avoid conflicting with
Allen v. Flood,68 Justice Rand did not pursue this intriguing possibility,
but his language in the passage quoted above betrays his uncertainty
about the nature of his public law tort, and an ambivalence as to the sub-
ject matter of the torts protection.
The rights of a citizen to enjoy a public privilege are odd rights in-
deed, and their correlative duty implied by the statute is even more cu-
rious.69 Justice Rand was not treating the liquor permit as a property
right. It is suggested that Justice Rand might have had in mind the obvi-
ous assumptions and expectations underlying the commercial viability of
any occupational licensing scheme. The licences might need annual re-
newal, but investors would naturally expect the schemes administration
to be run on commercially predictable (and therefore stable) lines. The
stable (as opposed to arbitrary) administration of the licensing scheme
might well be described as a right to enjoy such licences as they have been
granted, although it is suggested that Justice Rands tort and its succes-
sor (known as the tort of misfeasance in public office) are best approached
not as mechanisms to protect legal rights or interests, but as mechanisms
to discipline public officers for abuses of public power that they knew were
inexcusable.70 Roncarelli had no right to maintain or renew his permit,
nor any right to a stable economic environment free of government inter-
ference; that is why his damages award focused on disciplining arbitrary
public behaviour. It may also go some way to explaining why the quantum
of that award was so obviously inadequate, and the reasoning offered in
support of that quantum so unconvincing.71 The Supreme Court of Can-
ada was obviously torn between a torts model of damages assessment that
68 Ibid. at 144.
69 See supra note 67 and accompanying text.
70 Robert Stevens has argued that the misfeasance tort is not a regular tort at all, because
it does not protect pre-existing rights or interests: Robert Stevens, Torts and Rights
(Oxford: Oxford University Press, 2007) at 218, 242-43. Stevens regards it as a regula-
tory mechanism (ibid. at 218). The tort remains exceptional even if one were to see
torts as creating and vindicating rights and correlative duties. See Peter Cane, Book
Review of Torts and Rights by Robert Stevens, (2008) 71 Mod. L. Rev. 641.
71 David Mullan notes the cursory reference to compensation for lost goodwill: David
Mullan, Roncarelli v. Duplessis and Damages for Abuse of Power: For What Did It
Stand in 1959 and For What Does It Stand in 2009? (2010) 55 McGill L.J. 587. See also
Roncarelli, supra note 1 at 187, Abbott J. The overall sum awarded came nowhere near
what would have been needed if Roncarelli were truly to be compensated for what Rand
J. had called vocation outlawry (ibid. at 141), and there was no pretence at estimating
the cost of future vicissitudes.
630 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
focuses on the plaintiff and seeks to put him or her in the same position as
if he or she had not been wronged, and the legal form of the liquor scheme
with its annual timelines and broad discretionary power. Roncarellis
damages award may have sufficed to denounce the defendants conduct,
but it is hard to believe that it compensated him for his loss.
Roncarelli appears in most histories of the evolution of a specifically
public law tort of misfeasance in public office, although no such label ap-
peared in the case itself. It will be recalled that Justice Rands version of
the rule of law required the Court to afford Roncarelli recourse or rem-
edy72 for the defendants extraordinary behaviour. There is an obvious
similarity to Chief Justice Holts famous reasoning in Ashby v. White73
that the plaintiffs rights having been breached, the law simply had to
create a damages remedy as a means of vindication.74 The restrictions in-
herent in the more traditional (i.e., private law) torts combined in Justice
Rands judgment with a strong sense of the need to vindicate Roncarellis
rights to drive the development of what we would now call the tort of mis-
feasance in public office. This public law tort is a fallback for what one
hopes to be rare cases where private law torts are manifestly inadequate.
Australia also sees misfeasance as a residual, backup tort.75
Australian tort law operates for the most part on a private-sector
model, whose primary function is to focus on and adjust the competing in-
terests of plaintiffs and defendants to the extent that their activities col-
lide. Government parties to tort actions can usually make the same claims
and are usually subject to the same liability rules as would be made or
applied in an action between subjects. This equality principle is highly
prized. Dicey treated it as a critical aspect of his rule of law,76 and more
often than not, its common law and statutory exceptions are bitterly con-
tested,77 usually on the ground that they are unjustified reductions of the
governments exposure to liability principles or damages awards. The
equality principles flip side, however, is that with only one exception,
72 Ibid. at 142.
73 (1703), 1 Sm. L.C. (13th ed.) 253 at 273, 92 E.R. 126.
74 See also Carol Harlow, A Punitive Role for Tort Law? in Linda Pearson, Carol Harlow
& Michael Taggart, eds., Administrative Law in a Changing State: Essays in Honour of
Mark Aronson (Oxford: Hart, 2008) 247.
75 Mengel, supra note 18 at 348.
76 His version of the rule of law required such disputes to be adjudicated in the ordinary
courts: A.V. Dicey, Introduction to the Study of the Law of the Constitution, 9th ed.
(London, U.K.: Macmillan, 1939) at 193.
77 For a discussion of the common law and statutory exceptions to the equality principle,
see Mark Aronson, Government Liability in Negligence (2008) 32 Melbourne U.L.
Rev. 44.
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 631
there is no special tort that only governments can commit.78 The exception
is the tort of misfeasance in public officean exception that seeks its jus-
tification on the basis that there is something especially wrong about mal-
ice or dishonesty when it comes from a public official.
Individuals who suffer loss as a result of government action found to
have been unconstitutional cannot get damages in Australia on that score
alone; plaintiffs must bring their claims within the standard private law
causes of action, because the High Court of Australia refused to create
constitutional torts. That precedent was set in James v. Commonwealth,79
in which the plaintiff had sought compensation following his successful
challenge80 to the validity of Commonwealth legislation that severely lim-
ited the interstate sale of his dried fruits. The court allowed him compen-
sation for the seizure of goods en route for interstate sale, but that was
because the facts fell within the established tort of conversion. There had
been a direct interference with his rights of property, and the good faith of
the public officials was no defence because conversion is a tort of strict li-
ability.
However, the High Court of Australia denied the greater part of
Jamess claim for compensation. He had lost interstate business opportu-
nities because he had found it difficult to secure the services of common
carriers, who feared the prospect of prosecution. But the implicit threats
to the carriers constituted no tort. Even if one assumed conspiracys
agreement,81 the threats would not have amounted to a tortious conspir-
78 Public officials are the usual defendants in actions for malicious prosecution, but it re-
mains a private law tort.
79 [1939] HCA 9, 62 C.L.R. 339 [James (H.C.A.) cited to C.L.R.]. Dixon J. said that it would
be ridiculous to analogize an action in constitutional tort to an action for breach of
statutory duty (ibid. at 362). The High Court of Australia continues to deny the avail-
ability of an action for breach of constitutional rights: Lange v. Australian Broadcasting
Corporation, [1997] HCA 25, 189 C.L.R. 520 at 563, 145 A.L.R. 96; Kruger v. Common-
wealth of Australia, [1997] HCA 27, 190 C.L.R. 1 at 124-26, 146-48, 146 A.L.R. 126;
British American Tobacco Australia Ltd. v. Western Australia, [2003] HCA 47, 217
C.L.R. 30 at para. 40, 200 A.L.R. 403. Kirby J. accepted that current authority was
against constitutional causes of action, but protested his disagreement as a matter of
principle (ibid. at paras. 118-37). See also Mulholland v. Australian Electoral Commis-
sion, [2004] HCA 41, 220 C.L.R. 181 at para. 180, 209 A.L.R. 582. The High Court of
Australia acknowledges that its position is at odds with the following cases: The State
(Quinn) v. Ryan, [1965] I.R. 70; Bivens v. Six Unknown Named Agents of Federal Bu-
reau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971); Simpson v. Attorney-General
(Baigent’s Case), [1994] 3 N.Z.L.R. 667 (C.A.).
80 James v. Commonwealth of Australia, [1936] A.C. 578, 55 C.L.R. 1 (P.C. on appeal from
H.C.A.).
81 The rationales for the two conspiracy torts (namely, lawful but malicious acts and in-
tent to harm by unlawful means) are much debated. Accepting for the moment that an
agreement between two or more people rightly tortifies something that would not be
632 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
acy because unlawful means had not been used; threatening a prosecu-
tion was not relevantly unlawful. Nor did the threats amount to the tort
of intentionally inducing common carriers to breach their common law du-
ties to accept Jamess business. First, the passage of an act was not an
inducement by the executive, but a prior step taken by the legislative
branch for which the executive should not be held tortiously responsible.82
Secondly, inducements would not by themselves have been sufficient;
there should have been more evidence that the inducements succeeded in
the sense that they resulted in actual breaches of the carriers duties.83
Thirdly, no express or implied threats to prosecute carriers could count as
inducements unless they had been made in the knowledge that the legis-
lative measures were unconstitutional.84 As for the threats not to his car-
riers, but to James personally, the Commonwealth might have been liable
in other circumstances for intentionally harming his business through
threats of further illegal seizures.85 But the trouble for James was that he
had been too plucky; the implicit threats had not in fact diminished his
determination.86 Although not addressed directly, it is clear that the
Commonwealth would not have been liable for threatening to take James
to court, provided it had acted in good faith.87
If one were to fast-forward to the present, one would have to conclude
that certainly in England and probably in Australia, the relevant private
law torts are at least as demanding as they were in the times of James
and Roncarelli. In its recent magisterial review of two of the more bewil-
dering economic torts in a trilogy of appeals generally cited as OBG Ltd. v.
Allan,88 the House of Lords unanimously and decisively rejected more
than a century of speculative judgments and scholarship that had urged
various extensions of the torts in question. OBG rejected the contention
that there was (or even should be) a single, grand principle to unite the
tort of knowingly inducing a breach of contract with the tort of intention-
ally harming the plaintiffs trade or business interests by unlawful means.
The two torts had too many principled differences to allow them to be re-
actionable if done solo, one might question why proof of agreement is needed in the case
of large organizations, such as corporations or bureaucracies.
82 James (H.C.A.), supra note 79 at 371-72.
83 Ibid. at 372.
84 Ibid. at 372-73.
85 See Mengel, supra note 18 at 351. The intimidation tort is usually tripartite, in that the
unlawful action (or threat of it) is against a third person, with the intent of causing
harm to the plaintiff. Two-party intimidation presents fewer challenges of principle,
and the House of Lords put it to one side in OBG Ltd. v. Allan ([2007] UKHL 21, [2008]
1 A.C. 1 at para. 61, [2007] 4 All E.R. 545 [OBG]).
86 James (H.C.A.), supra note 79 at 375.
87 Mengel, supra note 18 at 351, 371-73.
88 OBG, supra note 85.
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 633
packaged beneath a unified (and grander) principle. A majority also re-
jected a proposal to extend the strict liability tort of conversion beyond its
protection of chattel interests, to include the misappropriation of choses in
action. A larger majority also tightened the definition of what might
amount to unlawful means for the purposes of the tort of deliberately
harming the plaintiffs interests by unlawful means. Such means must in
the future not only be actionable at the suit of the third person against
whom they were directed;89 they must also interfere with that persons
freedom to deal with the plaintiff.90 Lord Hoffmann stressed that the ele-
ments of intention and unlawfulness were important control devices built
into the economic torts in order to minimize the common law role in de-
vising rules of fair competition, and its role in stipulating basic stan-
dards of civilised behaviour in economic competition, between traders or
between employers and labour.91 That is why his definition of unlawful
means required that they be both actionable at the instance of the third
person (thereby excluding means that were unlawful only because they
were in breach of a criminal or regulatory statute),92 and used for the very
purpose of harming the plaintiffs economic interests.93
It might be interpolated at this point that to some extent, the High
Court of Australia anticipated OBGs retraction of unlawful means by
almost a decade.94 It held that if there is an economic tort of interfering
with a persons trade or business interests by unlawful means, then the
means will not be relevantly unlawful simply because they were unau-
thorized or ultra vires. One reason was that were it otherwise, the eco-
nomic tort would render redundant the tort of misfeasance in public office.
Defendants to claims for interference by unlawful means need not have
known that they were acting unlawfully or have been recklessly indiffer-
ent about it. More importantly, the High Court of Australia pointed out
that the economic and misfeasance torts have different defendants, and
their tortfeasors have different intentions. Individual economic tortfeasors
89 One qualification was added, namely, that the means (e.g., intimidation) might be
unlawful even if the third person suffered no loss only because he or she yielded to the
defendant’s pressure (ibid. at para. 49).
90 Ibid. at para. 51.
91 Ibid. at para. 56.
92 Ibid. at para. 57.
93 Ibid. at paras. 56-61. For criticism of OBG’s requirement that the unlawful means be
independently actionable, see Simon Deakin & John Randall, Rethinking the Eco-
nomic Torts (2009) 72 Mod. L. Rev. 519 at 544-50. Aside from the criticism that it is
difficult to square OBG with earlier precedent that it failed to overrule, the authors
stated that the requirement narrowed the tort unduly, and lost sight of its function,
which was to set limits to direct interference with recognized trade or business inter-
ests.
94 Sanders v. Snell, [1998] HCA 64, 196 C.L.R. 329 at paras. 36-37, 157 A.L.R. 491 [Sand-
ers] (note the references to unlawful acts).
634 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
will usually transmit vicarious liability to their employers without much
difficulty, because they will have acted for their employers benefit. Indi-
vidual misfeasance tortfeasors, on the other hand, will by definition have
acted beyond their authority and will be more likely to have acted in pur-
suit of their own ends (as opposed to those of their employers). That will
make it more difficult (but not impossible)95 to pin their employers with
vicarious liability.96 As for different intentions, economic tortfeasors usu-
ally intend to inflict economic loss on their competitors, and that is per-
fectly acceptable, because it is central to competition.97 By contrast, the
intentional (and unlawful) infliction of harm by government actors is of-
ten said to be sufficient in itself to establish misfeasance.98
If OBGs economic torts are all about devising basic standards of civi-
lised behaviour in the marketplace,99 the misfeasance tort is (or at least,
should be) all about defining the exceptional circumstances in which gov-
ernment illegalities will be actionable in tort, not just because they were
unlawful (because judicial review is normally sufficient), but because they
violated basic standards of civilized behaviour in the exercise of public
power. That, surely, is why Justice Rand fell back on something as broad
as the rule of law, and also why he fudged his definition of malice. He took
malice to go beyond spite, dishonesty, and even beyond a deliberate excess
of power. He took it to include intentional harm at the hands of a public
officer whose ignorance of the laws limits to his powers was so profound
that he must not have cared. His illegality may have been neither inten-
tional nor subjectively reckless, but the illegality was both so obvious and
so outrageous that it was inexcusable in a prime minister and Attorney
General.
Perhaps the most fundamental choice confronting the House of Lords
in OBG was whether to describe the limits of the private law tort of inter-
95 It was obvious that if the Bank of England’s officers had been misfeasance tortfeasors in
Three Rivers District Council v. Bank of England (No. 3) ((2000), [2003] 2 A.C. 1 (H.L.)
[Three Rivers (No. 3)]), then the bank itself would also have been liable because none of
the relevant individuals were pursuing their own personal interests. The House of
Lords may be more disposed than the High Court of Australia to allowing vicarious li-
ability for deliberate misconduct: Racz v. Home Office (1993), [1994] 2 A.C. 45, [1994] 2
W.L.R. 23; Three Rivers (No. 3), supra at 191.
96 Mengel, supra note 18 at 347; Sanders, supra note 94 at para. 38. See also J.L.R. Davis,
Misfeasance in Public Office, Exemplary Damages and Vicarious Liability in Austra-
lian Institute of Administrative Law Forum, No. 64 [forthcoming in 2010]. The High
Court of Australia was unable to propound an authoritative test for determining the ex-
tent of vicarious liability for misbehaving school teacher employees in New South Wales
v. Lepore ([2003] HCA 4, 212 C.L.R. 511, 195 A.L.R. 412).
97 Sanders, supra note 94 at para. 37, Gleeson C.J., Gaudron, Kirby, and Hayne JJ.
98 This is targeted malice, the so-called first limb of the misfeasance tort, discussed be-
low (see infra note 106ff.).
99 See supra note 91 and accompanying text.
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 635
ference by unlawful means in terms that were tightly defined or open-
ended. The open-ended model would have amounted to an endorsement of
what is known in America as a prima facie tort, defined as an intention to
inflict harm without just cause or excuse.100 Despite the eminence of some
of its proponents,101 the House of Lords balked at an approach whose defi-
nition of unlawful means would have required the judges to determine in
every case what is unjust or inexcusable; that was thought to be too un-
certain for a tort designed to regulate marketplace behaviour.102
The case for certainty is less compelling when it comes to misfeasance,
and that might explain why Justice Rand fudged his definition of malice.
Malice currently figures prominently in most accounts of misfeasance, but
the torts expansion from deliberate wrongdoing to reckless indifference
has made malice a slippery word. It has been said that malice has
been subject to a regrettable exuberance of definition,103 and that the
word has caused more confusion in English law than any judge can hope
to dispel.104 That is certainly true of its use in the misfeasance cases,
where its definitions range from narrow to broad. Starting with improper
motives (such as ill will, spite, and revenge), one can also find definitions
that extend by degrees to improper intentions as to outcomes (such as the
intentional infliction of harm),105 action taken in the knowledge that it
was beyond lawful authority, and circumstances in which public officials
were recklessly indifferent as to whether they had the necessary lawful
authority.
One currently popular definition of misfeasance in public office splits
into two alternative limbs. Various two-limbed versions have been pro-
100 See Hazel Carty, An Analysis of the Economic Torts (Oxford: Oxford University Press,
2001) at 109. It is also noted that the American doctrine has limited application (ibid. at
109, n. 84).
101 For example, J.D. Heydon argues that the toleration in Allen v. Flood (supra note 66) of
intentional harm caused by intolerable conduct was a short-term expedient to protect
trade unions. He argues that had Allen v. Flood gone the other way, [m]uch race rela-
tions legislation would have been less necessary: J.D. Heydon, Economic Torts, 2d ed.
(London, U.K.: Sweet & Maxwell, 1978) at 28 [Heydon, Economic Torts]. See also Philip
Sales & Daniel Stilitz, Intentional Infliction of Harm by Unlawful Means (1999) 115
Law Q. Rev. 411.
102 OBG, supra note 85 at para. 14.
103 British Railway Traffic and Electric Co. Ltd. v. The C.R.C. Co. Ltd. (1921), [1922] 2 K.B.
260 at 268, 38 T.L.R. 190, McCardie J.
104 Shapiro v. La Morta (1923), 40 T.L.R. 201 at 203, Scrutton L.J. These quotations from
McCardie J. and Scrutton L.J. also appear in Heydons Economic Torts (supra note 101
at 83). See also Peter Cane, Mens Rea in Tort Law (2000) 20 Oxford J. Legal Stud. 533
at 539-41 [Cane, Mens Rea].
105 See Peter Cane, The Anatomy of Tort Law (Oxford: Hart, 1997) at 35 (people’s motives
are their reasons for acting and their intentions are the consequences that they hope to
cause; the two need not coincide).
636 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
pounded, but a broad overview is sufficient for present purposes.106 In
each limb, the relevant act or omission of the public officer must have
been a purported exercise of a public power or function that was invalid
either for being in excess of power for any of the standard administrative
law reasons, or because it was wholly lacking in lawful authority from the
outset. The difficulties of detail in that proposition will not be pursued.
Nor is it necessary here to examine the implications of Canadas extension
of the tort beyond coercive powers to encompass deliberate breach of
statutory duties.107 The concern of this part of the paper is to focus on the
torts mental elements.
The only mental element in the first limb is that the officer must have
specifically intended to harm the plaintiff, and that is sometimes called
targeted malice. The second limb is more complicated because it ad-
dresses two issues: the extent of the officers awareness that his or her act
lacked lawful authority, and the extent of the officers awareness of the
relevant acts probable consequences for the plaintiff.108 On each of those
second-limb issues, the plaintiff must establish either actual knowledge or
reckless indifference.
Although the cases repeat the two-limb account endlessly, not every-
one subscribes to it. In England, for example, Lord Hobhouse treated the
first limb not as an ingredient of the misfeasance tort, but as a proposition
of evidence. In his view, an officer who sought to inflict harm on a particu-
lar person was extremely unlikely to have believed that he or she was
acting with lawful authority.109 Lord Millett went further: he treated both
limbs as no more than propositions of evidence. For him, the ultimate fact
in issue was abuse of power, which involves other concepts, such as
106 This account draws upon only a handful of leading appellate decisions: Mengel, supra
note 18; Garrett v. Attorney-General (1996), [1997] 2 N.Z.L.R. 332 (C.A.) [Garrett];
Sanders, supra note 94; Three Rivers (No. 3), supra note 95; Odhavji Estate v. Wood-
house, 2003 SCC 69, [2003] 3 S.C.R. 263, 233 D.L.R. (4th) 193 [Odhavji]; Hobson v. At-
torney-General (2006), [2007] 1 N.Z.L.R. 374 (C.A.) [Hobson]. Hobson went to the Su-
preme Court of New Zealand, but not on misfeasance: Couch v. Attorney-General, [2008]
NZSC 45, [2008] 3 N.Z.L.R. 725. See also New Zealand Defence Force v. Berryman,
[2008] NZCA 392 [Berryman].
107 See Odhavji, supra note 106 (involving the duty of police officers to co-operate with an
internal investigation). This issue was discussed inconclusively in Berryman (supra
note 106) and went unnoticed in Garrett (supra note 106).
108 This being an intentional tort, defendants are liable only for the harm that they either
intend or deliberately choose to ignore. The Supreme Court of Canada put this differ-
ently in Odhavji, in terms of requiring a nexus between the parties such that the de-
fendant owes the plaintiff a duty (supra note 106 at para. 29). The plurality in Mengel
did not resolve whether the misfeasance defendant needs to have breached a duty owed
to the plaintiff (supra note 18 at 346-47). Brennan J. opposed the idea (ibid. at 357).
109 Three Rivers (No. 3), supra note 95 at 230.
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 637
dishonesty, bad faith, and improper purpose.110 Analogizing to trust law,
Lord Millett said that the plaintiff had to show in one way or another,
that the defendant officer did not believe that he or she was acting for the
benefit of at least some of those for whom such officer was required to act.
Lord Millett acknowledged that one consequence of his approach would be
to exonerate an officer who deliberately acted in excess of power if he or
she believed that it was for the plaintiffs benefit.111
In Australia, an intermediate appellate court unearthed another prob-
lem with the first limb.112 The defendant ministers acts fell squarely
within a literal reading of the first limb. His good faith breach of natural
justice had meant that he had acted unlawfully, and he had definitely in-
tended to harm the plaintiff: he had sought his dismissal from a statutory
agency. The trouble was that harming the plaintiff was the very purpose
of the power; perhaps unusually, that was lawful.113 The court exonerated
the minister because he had not acted dishonestly. Rather, he had sought
the plaintiffs dismissal for the permissible purpose of cleaning up what
he had believed to have been an incompetent agency within the ministers
portfolio of responsibilities. It appears likely that the Supreme Court of
Canada would have reached the same result on those facts.114
Perhaps the first-limb problems could be somewhat reduced by insist-
ing on the distinction between improper motives and improper purposes.
That would be consistent with administrative law doctrine, which focuses
on purposes rather than motives. But these are more than just tricky doc-
trinal difficulties with the two-limb approach. They flow from the differ-
ence between defining misfeasance in terms of tight rules or more flexible
principles. There is an obvious parallel with OBGs policy choice between
closed rules or a prima facie tort, but the call of principle is stronger in the
misfeasance arena, in which government is meant at all times to behave
with more altruism and personal detachment. Justice Rands principle
was the rule of law, which warranted a damages award for the intentional
infliction of harm by a public officer who Justice Rand believed was mali-
cious, but the Attorney Generals malice consisted only of honest yet egre-
gious ingredients. First, there was hubris or stupidity. Even a cub lawyer
should have realized that the power lay with the Liquor Commissioner,
110 Ibid. at 235 [emphasis added]. See also Watkins v. Secretary of State for the Home De-
partment, [2006] UKHL 17, [2006] 2 A.C. 395 at paras. 12, 73, 2 W.L.R. 807.
111 Three Rivers (No. 3), supra note 95 at 235. The same view appears in Garrett, where a
policeman had deliberately broken the rules, but quite possibly for what he had mistak-
enly seen as the plaintiff’s benefit (supra note 106 at 350).
112 Sanders v. Snell, [2003] FCAFC 150, 198 A.L.R. 560 at para. 108. This was the end of
the line in an extremely protracted litigation saga.
113 Brennan J. foresaw this possibility in Mengel (supra note 18 at 356).
114 Odhavji, supra note 106 at para. 28.
638 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
not the Attorney General. And secondly, powers that were all about liquor
were used for purposes that were all about crushing lawful political and
religious dissent. To make matters worse, they were used to close down a
perfectly respectable small business, the regulation of which might well
be regarded as an exercise in red tape.
The leading misfeasance cases all make frequent appeals to principle.
Perhaps the principles most frequently voiced are knowing want of power,
dishonesty, and the failure to make an honest attempt115 to use power
lawfully. These are all principles focused on the putative tortfeasors men-
tal statea state ranging fairly narrowly from knowledge and the delib-
erate infliction of harm, to reckless indifference (which probably trans-
lates as knowledge of the risk of illegality or harm to the defendant or
both) and indifference as to whether the risk will materialize.116 One could
offer several reasons why misfeasance claims are exceptional, and why
their success is even more exceptional. However, the centrality of the de-
fendants mental state must surely count as one of the principal explana-
tions, partly because its proof will usually be extraordinarily difficult. De-
fendants are unlikely to acknowledge moral impropriety,117 and reliable
written proof will be rare. Furthermore, proof of the requisite mental
state might well carry with it an implicit suggestion that the defendant is
unfit for office,118 which would mean that in practical terms, there will be
a tougher standard of proof.119
The rule of law also figures in the English120 and Canadian121 judg-
ments as one of the principles informing the misfeasance tort, but the
High Court of Australia was distinctly hostile122 to a lower courts at-
tempt123 to sidestep the niceties of the misfeasance tort by creating a new
115 Mengel, supra note 18 at 357, Brennan J.
116 Cane, Mens Rea, supra note 104 at 535.
117 Few officials would publicly boast as Duplessis had done. Indeed, it was evidently diffi-
cult to determine whether his boasts had claimed too much credit for himself and too
little for the Liquor Commissioner.
118 There is a parallel with judicial review challenges for bias. Australian doctrine allows
but actively discourages challenges for actual bias, diverting most challengers to the
less pejorative ground of reasonable apprehension of bias: Mark Aronson, Bruce Dyer
& Matthew Groves, Judicial Review of Administrative Action, 4th ed. (Sydney: Thom-
son Reuters, 2009) at 641-46.
119 See Briginshaw v. Briginshaw, [1938] HCA 34, 60 C.L.R. 336. Deakin and Randall are
critical of the House of Lordss failure in OBG to use a presumption that people intend
the probable consequences of their acts (Deakin & Randall, supra note 93 at 538-40).
The misfeasance torts, however, have never wavered in their insistence on strict proof.
120 Three Rivers (No. 3), supra note 95 at 190.
121 Odhavji, supra note 106 at para. 26.
122 Mengel, supra note 18 at 352-53.
123 See Northern Territory v. Mengel, [1994] NTSC 37, 95 N.T.R. 8 at paras. 12-15, Angel J.
SOME AUSTRALIAN REFLECTIONS ON RONCARELLI V. DUPLESSIS 639
torta constitutional tort of breaching the rule of law. As formulated, the
new tort would have rendered actionable every harm intentionally in-
flicted by officers unwittingly acting beyond their powers. Further, it
would have been more demanding of government than a negligence-based
duty of care to stay within its lawful authoritya duty that the Austra-
lian courts incidentally reject as a step too far for the tort of negligence.124
On the surface, the High Court of Australias objections were not to the
rule of law language, but to a judgment that had slipped too easily from a
requirement of government legality to a requirement of a remedy in dam-
ages. This judgment had understandably125 drawn support in this respect
from the majority judgments in Roncarelli other than that of Justice
Rand. At a deeper level, however, I suspect that Justice Rand and the
High Court of Australia had different understandings of the rule of law.
In Mark Walterss typology,126 Justice Rand went beyond the rule of law
as order, as an abstraction from the mass of common law cases validated
largely by its descriptive accuracy, its explanatory power, and its coher-
ence. Rather, Justice Rands understanding conformed to Walterss model
of the rule of law as reason, a distinctly substantive and normative con-
ception that drew on legal and political ideals, which is why it had (and
still has) such transformative potential.
Conclusion
It would be easy to exaggerate the differences between Justice Rands
approach to the issues in Roncarelli and the way in which the High Court
of Australia would have dealt with the same issues. Small differences in
judicial styles, however, can produce larger consequences over time. A
court that is reluctant to give normative bite to rule of law principles will
find it correspondingly difficult to define a role for a tort designed only for
the public sphere.
So far as the case involved the issue of the validity of the decision to
cancel Roncarellis liquor licence, Justice Rand used the language of the
rule of law where an Australian court would have seen no need. Had he
been in Sydney, Roncarellis decision makers would have been courts, not
a minister; the criteria for making decisions would have been narrower;
and he would have had backup protection on any one of a number of
grounds via judicial review. In the judicial review arena, the High Court
124 The court said in Precision Products (N.S.W.) Pty. Ltd. v. Hawkesbury City Council
([2008] NSWCA 278) that a duty to take care to act intra vires would have required the
courts to set public sector management standards, which would be both difficult and a
violation of the separation of powers.
125 See Mullan, supra note 71.
126 Mark D. Walters, Legality as Reason: Dicey, Rand, and the Rule of Law (2010) 55
McGill L.J. 563.
640 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
of Australia had grown accustomed to reading down statutory grants of
broad discretionary powers, sometimes because that was the only way to
save a federal law from invalidation, but usually because the courts gen-
eral administrative law principles were increasingly invoked to read down
apparently unlimited grants of discretionary power.
More notable for Australians, therefore, was Roncarellis decision to
uphold the trial judges decision to award damages. Based on the rule of
law and appealing to a normative distinction between liability for private
and public action, Canadas misfeasance tort is now heading toward an
open-textured concept of morally blameworthy public behaviour. Austra-
lias misfeasance tort is probably heading in the opposite direction. Al-
though this is not yet clear, the odds are that it will end up focusing only
on the abuse of public power, and being defined in minimalist and rule-
focused terms, as would befit its perceived function as a very occasional
fallback for the private torts.
