Special leave dismissed with costs by the High Court, 3 November 2009 s119/2009
New South Wales
Court of Appeal
CITATION:
Leerdam & Anor v Noori & Ors [2009] NSWCA 90
HEARING DATE(S):
4 February 2009
JUDGMENT DATE:
1 May 2009
JUDGMENT OF:
Spigelman CJ at 1; Allsop P at 46; Macfarlan JA at 68
DECISION:
(a) Leave to appeal granted. (b) The appellants within seven days to file the amended notice of appeal provided by them to the Court. (c) Appeal allowed. (d) The orders made at first instance dismissing the appellants' notice of motion dated 8 October 2007 and as to the costs of that motion be set aside. (e) The proceedings so far as they relate to the appellants be summarily dismissed. (f) The first respondent to pay the costs at first instance of the proceedings against the appellants, including the costs of the appellants' notice of motion filed on 8 October 2007. (g) The first respondent to pay the appellants' costs of the application for leave to appeal and of the appeal. (h) The first respondent to have a certificate under the Suitors' Fund Act 1951, if qualified.
CATCHWORDS:
PROCEDURE - summary dismissal and strike out - questions of law involved - TORTS - tort of misfeasance in public office - whether solicitor acting on behalf of a minister in Administrative Appeal Tribunal proceedings held a public office for the purposes of the tort - TORTS - collateral abuse of process - whether tort capable of being committed by a non-party to proceedings - when purpose is collateral - LEGAL PRACTITIONERS - lawyers - advocate's immunity from suit - whether applicable to intentional torts - whether applicable to the torts of misfeasance in public office and collateral abuse of process
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Leerdam v Noori [2009] NSWCA 90
Case
[2009] NSWCA 90
Decision Date
CaseChat Overview and Summary
In *Leerdam v Noori*, the appellants sought to appeal orders of the primary judge that dismissed their notice of motion and awarded costs against them. The dispute concerned claims brought by the first respondent against the appellants, which included allegations of misfeasance in public office and collateral abuse of process. The appeal was heard in the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were whether a solicitor acting on behalf of a minister in Administrative Appeal Tribunal proceedings held a public office for the purposes of the tort of misfeasance in public office, and whether the tort of collateral abuse of process could be committed by a non-party to proceedings. The Court was also required to consider the scope of advocate's immunity from suit, specifically whether it extended to intentional torts such as misfeasance in public office and collateral abuse of process.
The Court of Appeal reasoned that the primary judge had erred in dismissing the appellants' notice of motion. It found that the appellants, as solicitors acting for a minister, did not hold a public office for the purposes of the tort of misfeasance in public office. Furthermore, the Court determined that the tort of collateral abuse of process was not capable of being committed by a non-party to proceedings in the circumstances alleged. The Court also considered the application of advocate's immunity, concluding that it did not preclude the claims against the appellants.
Consequently, the Court of Appeal allowed the appeal, set aside the orders made at first instance dismissing the appellants' notice of motion and awarding costs against them, and summarily dismissed the proceedings so far as they related to the appellants. The first respondent was ordered to pay the appellants' costs at first instance and on appeal.
Orders
Orders of the court
(a) Leave to appeal granted. (b) The appellants within seven days to file the amended notice of appeal provided by them to the Court. (c) Appeal allowed. (d) The orders made at first instance dismissing the appellants' notice of motion dated 8 October 2007 and as to the costs of that motion be set aside. (e) The proceedings so far as they relate to the appellants be summarily dismissed. (f) The first respondent to pay the costs at first instance of the proceedings against the appellants, including the costs of the appellants' notice of motion filed on 8 October 2007. (g) The first respondent to pay the appellants' costs of the application for leave to appeal and of the appeal. (h) The first respondent to have a certificate under the Suitors' Fund Act 1951, if qualified.