Between: Northern Territory
And: Mengel

Judges: Mason CJ
Brennan J

Deane JDawson J
Toohey J
Gaudron J
McHugh J

Subject References:
Tort

Canberra

Decision by:
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 ^[F105]   entered against them by the learned trial judge (Asche CJ) and, subject to an increase in the amount of damages ^[F106] , 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. 

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"

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. ^[F107]   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?

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". ^[F108]   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".

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 (NT) since Mr Tabrett was himself the holder of that office. ^[F109]   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.

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.

In Dunlop v. Woollahra Municipal Council, ^[F110] 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". ^[F111]   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", ^[F112] I agree that the word "unlawful" was used by Taylor, Menzies and Owen JJ. in the critical passage in Beaudesert ^[F113] 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. ^[F114]   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 ^[F115] and the word "unlawful" used in its ultimate formulation ^[F116] were intended to refer only to acts which are "forbidden" either by the criminal law or by some specific and direct statutory prohibition. ^[F117]   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". ^[F118]   On balance, however, a careful reading of the judgment in Beaudesert ^[F119] 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 ^[F120] since there is no suggestion that anything said or done by or on behalf of the appellants constituted a breach of contract.

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. ^[F121]

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, ^[F122] 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.

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.

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?

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 ^[F123] the summary of that case which is set out in Coke's Report of the The Earl of Shrewsbury's Case: ^[F124]

"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 ^[F125] 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 ^[F126] 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". 

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. ^[F127]   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. ^[F128]   They wrote: ^[F129]

"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."

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. ^[F130]   As Professor Kiralfy recognized in his landmark work on The Action on the Case, ^[F131] 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 £40 damages were awarded for lost profits as well as lost toll. 

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 an achronism. There is nothing at all in the reports of the Abbot of Evesham's Case ^[F132] 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. ^[F133]   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.

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, ^[F134] of them provide some support for some aspect or aspects of the Beaudesert proposition. ^[F135]   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. ^[F136]   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. ^[F137]

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.

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".

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.

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 ^[F138] 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.

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, ^[F139] 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. ^[F140]   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.

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

Misfeasance in public office

As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v. Woollahra Municipal Council, ^[F141] 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.

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. ^[F142]   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 ^[F143] 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.

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

In James v. The Commonwealth, ^[F144] Dixon J. quoted with apparent approval the following passage from the 9th edition of Salmond: ^[F145]

"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. ^[F146]   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.

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.

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: ^[F147]

"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. ^[F148]   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". ^[F149]   It is debatable 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. 

In James v. The Commonwealth, ^[F150] 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: ^[F151]

"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."

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

Conclusion

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'".

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.