Leerdam v Noori - [2009] NSWCA 90

No judgment structure available for this case.

Appeal Outcome: 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

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Prevention Act 1916 (NSW)
Judiciary Act 1903 (Cth)
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Migration Act 1958 (Cth)
Suitors' Fund Act 1951 (NSW)
The Constitution of the Commonwealth of Australia
1951 Convention Relating to the Status of Refugees

CATEGORY: Principal judgment

CASES CITED: Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1
B Johnson & Company (Builders) Limited v Minister of Health (1947) 177 LT 455
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Board of Education of Farmingdale Union Free School District v Farmingdale Classroom Teachers Association (1975) 38 NY 2nd 397; NYS 2d 635
Calveley v Chief Constable of Merseyside [1989] AC 1228
Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Dunlop v Woollahra Municipal Council [1982] AC 158
Emanuele v Hedley (Federal Court of Australia, 19 June 1998, unreported)
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241
Ex parte Kearney (1917) 17 SR NSW 578
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Garrett v Attorney General [1997] 2 NZLR 332
Gett v Tabet [2009] NSWCA 76
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Grainger v Hill and another (1837-8) 4 Bing (NC) 212; 132 ER 769
Grimwade v State of Victoria (1997) 90 A Crim R 526
Gulabrai v Hamer-Mathew (New South Wales Court of Appeal, 26 June 1997, unreported)
Hamer-Mathew v Gulabrai (No 2) (1994) 35 NSWLR 92
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Henderson v McCafferty [2002] 1 Qd R 170
Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing 91
Kuru v New South Wales [2008] HCA 26; (2008) 82 ALJR 1021
Munster v Lamb [1883] 111 QBD 588
Myers v Elman [1940] AC 282
Neilson & Anor v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136
Noori v Leerdam [2008] NSWSC 515
Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307
P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366
PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384
R v Boston [1923] HCA 59; (1923) 33 CLR 386
R v Bowdon [1996] 1 WLR 98
Rondel v Worsley [1969] 1 AC 191
Roy v Prior [1971] AC 470
Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329
Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149
Society of Lloyd's v Henderson and others [2007] EWCA Civ 930; (2008) 1 WLR 2255
Spautz v Gibbs (1990) 21 NSWLR 230
Tahche v Cannon [2003] HCA Trans 524 (12 December 2003)
Tampion v Anderson (No 2) [1973] VR 715
Taylor v Serious Fraud Office [1999] 2 AC 177
Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1
Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911-2) 13 CLR 35
Wickstead v Browne [1992] NSWCA 272; (1992-3) 30 NSWLR 1
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

TEXTS CITED: American Jurisprudence 2d Vol 1 s 21
R P Balkin and J L Davis, Law of Torts, 3rd ed, (2004) Butterworths Australia
T Cockburn and M Thomas, "Personal liability of public officers in the tort of misfeasance in public office" (2001) Torts Law Journal
Cordery's Law Relating to Solicitors 7th ed, (1981) Butterworths
Halsbury's Laws of England, 4th ed, Vol 44(1)
P D Finn "Public Officers: Some Personal Liabilities" (1977) 51 ALJ 313
P Keeton and W Prosser, Prosser and Keeton on the Law of Torts, 5th ed, (1984) West Pub Co

PARTIES: Leonard Keith Leerdam (First Appellant)
Sparke Helmore Lawyers (Second Appellant)
Naqib Ahmed Noori (First Respondent)
The Hon Philip Maxwell Ruddock MP (Second Respondent)
Commonwealth of Australia (Third Respondent)

FILE NUMBER(S): CA 40189/08

COUNSEL: A Bell SC/P Horvath (First and Second Appellants)
C Birch SC/J Hyde (First Respondent)
R Pepper (Second and Third Respondents)

SOLICITORS: DLA Phillips Fox (First and Second Appellants)
Truman Hoyle Lawyers (First Respondent)
Australian Government Solicitor (Second and Third Respondents)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20154/07

LOWER COURT JUDICIAL OFFICER: Smart AJ

LOWER COURT DATE OF DECISION: 30 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Noori v Leerdam & 3 Ors [2008] NSWSC 515

CA 40189/08
SC 20154/07

SPIGELMAN CJ
ALLSOP P
MACFARLAN JA
FRIDAY 1 MAY 2009

LEERDAM & ANOR v NOORI & ORS

Headnote

The first respondent, Mr Noori, sought a Protection Visa under the Migration Act 1958 (Cth) upon his arrival from Afghanistan in 1999. The second respondent, the then Minister for Immigration and Multicultural and Indigenous Affairs, declined to issue the visa. A hearing took place in 2001 of an application by Mr Noori to the Administrative Appeals Tribunal (the “AAT”) for review of the Minister’s decision. The application was unsuccessful. After the Full Federal Court held in 2004 that Mr Noori had been denied procedural fairness before the AAT, a rehearing occurred and Mr Noori was issued a Protection Visa in January 2006. He was released at that time from the detention to which he had been subject since 1999.

The first applicant, Mr Leerdam, acted as the Minister’s solicitor for the purpose of the AAT hearing which occurred in 2001. He was employed by the second applicant, Sparke Helmore, which was alleged to be vicariously liable for his conduct.

Mr Noori alleged in the proceedings below that he would not have been subjected to detention between 2001 and 2006 if Mr Leerdam and the Minister had not acted improperly in connection with the AAT proceedings in 2001 by bringing about a situation in which Mr Noori was unaware of, and therefore unable to answer, the detail of allegations that he had committed war crimes in Afghanistan, that being conduct which was alleged to warrant the refusal of the issue to him of a Protection Visa.

Mr Noori commenced proceedings alleging that the applicants and the Minister, by their conduct in connection with the 2001 AAT proceedings, committed the torts of misfeasance in public office and collateral abuse of process, rendering them liable in damages to Mr Noori.

The applicants sought leave to appeal from the decision of Smart AJ declining to summarily dismiss or strike out the claims against the applicants.

The Court held, granting leave to appeal and allowing the consequent appeal:

1. (Per Macfarlan JA; Spigelman CJ and Allsop P agreeing) Leave to appeal should be granted as the application raised important questions of tort law and as to the immunity from suit of advocates.

2. (Per Macfarlan JA; Spigelman CJ and Allsop P agreeing) As the causes of action pleaded against the applicants were clearly not maintainable and the trial which would otherwise have taken place would have been a lengthy one, it was appropriate to summarily dismiss the proceedings against the applicants. Caution is required in taking such a course but the opportunities to summarily dismiss or strike out claims will arise more frequently where, as here, the application turns on questions of law.

General Steel Industries Inc v Commissioner for Railways (NSW)

3. (Per Spigelman CJ, Allsop P and Macfarlan JA) As the solicitor acting on behalf of the Minister in the 2001 AAT proceedings, Mr Leerdam did not occupy a position within the scope of the tort of misfeasance in public office.

Northern Territory v Mengel

[1995] HCA 65; (1995) 185 CLR 307

Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329

Cannon v Tahche [2002] VSCA; (2002) 5 VR 317

4. (Per Spigelman CJ; Allsop P and Macfarlan JA agreeing) The claim based upon collateral abuse of process was not maintainable against the applicants as the tort can only be committed by a party to the proceedings in which the abuse is alleged to have occurred.

Emanuele v Hedley (Federal Court of Australia, 19 June 1998, unreported)

5. (Per Macfarlan JA; Allsop P agreeing, subject to the caveat that the point was not fully argued) The claim based upon collateral abuse of process failed on the further ground that no truly collateral purpose of Mr Leerdam was alleged, the substance of the allegations being only that his purpose was to achieve success for the Minister in the AAT proceedings (albeit by allegedly improper means).

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911) 13 CLR 35

Batistatos v Roads and Traffic Authority of New South Wales

D’Orta-Ekenaike v Victoria Legal Aid

6. (Per Macfarlan JA; Spigelman CJ and Allsop P agreeing) There is insufficient certainty about the scope of the defence of advocate’s immunity to summarily dismiss or strike out the claims against the applicants on the basis only of that defence.

D’Orta-Ekenaike v Victoria Legal Aid

[2005] HCA 12; (2005) 223 CLR 1

Munster v Lamb [1883] 11 QBD 588

Roy v Prior [1971] AC 970

CA 40189/08
SC 20154/07

SPIGELMAN CJ
ALLSOP P
MACFARLAN JA
FRIDAY 1 MAY 2009

LEERDAM & ANOR v NOORI & ORS

Judgment

1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Macfarlan JA in draft. I agree with his Honour’s orders and, subject to the following observations, I agree with his Honour’s reasons.

Misfeasance in Public Office

2 As Macfarlan JA indicates the critical issue to be determined in the present proceedings, with respect to the tort of misfeasance in a public office, is whether either the solicitor or a firm of solicitors acting on behalf of the Minister in legal proceedings occupies a “public office” within the meaning of the tort.

3 The concept of “public office” or “public officer” appears in various legal contexts, both statutory and at common law. (See the summary of the wide range of case law by Byrne J in R v McCann [1998] 2 Qd R 56 at 67-74.) There is no authoritative statement of a test for determining what constitutes a public officer for purposes of the tort of misfeasance. Nor is one needed. In almost all cases the answer will be obvious. (See Society of Lloyd’s v Henderson and Others [2007] EWCA Civ 930; (2008) 1 WLR 2255 at [23]. The most detailed consideration of Australian authorities is T Cockburn and M Thomas “Personal liability of public officers in the tort of misfeasance in public office” (2001) Torts Law Journal 80, 245.)

4 Where there is any doubt about whether a particular person occupies a “public office” for purpose of the tort, it will ordinarily be enough to approach the matter on the basis that the tort is “concerned with” the “misuse” or “abuse” of public power (Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 at [37]) or that the tort is “concerned with performance of public duties” (Sanders v Snell at [39]). There is no relevant difference, as these citations from the joint judgment in Sanders v Snell indicate, between authorities which use the language of “duty” and those which use the language of “power”. The formulation “abuses his office” is to be found in the foundational authority Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing 91 at 107; (1828) 130 ER 995 at 1001.

5 As Macfarlan JA shows, the joint judgment of the Victorian Court of Appeal in Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 does suggest that the identification of a relevant power attached to a public office is an “essential element of the tort”. (See e.g. at [53] and [61].) Nevertheless, their Honours also discuss, without criticism, other cases which indicate that the existence of a public duty, and other incidents of a particular office, may appropriately be considered. (See e.g. at [50]-[52].)

6 I do not understand their Honours to lay down a test of universal application for determining when a position is a public office for purposes of the tort. The identification of a power to act, which has or has not been exercised, is a necessary step in determining whether the conduct complained of occurred in purported performance of the functions of a public office. The relevant consideration is the link.

7 As Lord Bridge put it in Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240:

“ … the tort of misfeasance in public office … must … involve an act done in the exercise or purported exercise by the police officer of some power or authority with which he is clothed by virtue of the office he holds … .”

8 Furthermore, as the Full Federal Court put it: “the impugned act must have involved the exercise of power as a public officer.” (Emphasis added: Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149 at 172 per Black CJ, French and Von Doussa JJ.)

9 This element of the tort was the second element distilled by the Full Federal Court from the judgment of Lord Steyn in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 191. However, the first, and quite distinct element, is that “the defendant must be a public officer”. (Three Rivers supra at 191; Sanders v Snell (No 2) supra at 174; Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 at 370.) That is the issue in the present case.

10 Macfarlan JA states that this Court is bound to follow the decision in Cannon unless it is of the view that it is clearly wrong. I agree with Macfarlan JA that Cannon is not distinguishable.

11 Smart AJ, at first instance, (Noori v Leerdam [2008] NSWSC 515) relied on the analysis of the cases by the Court of Appeal of the Supreme Court of Western Australia in Neilson v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136 at [34]-[38], being the judgment of Buss JA with whom Wheeler and Pullin JJA agreed. That case is of little assistance as there was no issue that the respondent local government council, and its relevant officers, were holders of a public office for purposes of the tort. It was common ground that they were. (See at [38].) The respect in which the judgment in Neilson, based on the observations of Brennan J in Mengel supra at 357, may be said to qualify some of the reasoning in earlier authority, particularly in Tampion v Anderson [1973] VR 715, does not arise in the present case, as Macfarlan JA shows.

12 In Cannon the Court said that the Director of Public Prosecutions and a Prosecutor:

“[61] … are not invested with any relevant powers in respect of the conduct of a prosecution. Whatever powers may be said to attach to the office of the director, for example, when appearing in court to prosecute at a trial, he or she does not thereby exercise any relevant power but, rather, performs a function of the office, that being to represent the Crown at a criminal trial.”

13 Similarly, in the present case, the firm of solicitors and the individual solicitor retained to represent the Minister did no more than ‘perform a function … that being to represent’ the Minister in the proceedings before the Tribunal.

14 On the authority of Cannon, contrary to one of the submissions of the respondent, it would have made no difference if the Minister had been represented by a solicitor employed by the Government. However, it is not necessary to consider this question. There are English authorities, which suggest that the performance of any function by a public officer may be the basis for liability. (See, e.g. Three Rivers supra at 190-191; Henderson supra at [24]-[25].) It may well be that the rationale of “abuse of power” should extend the tort in that way. However, this issue does not arise in the present case.

15 In answering, or rather failing to adequately answer, the request for particulars, and in the other respects complained of, the appellants were not discharging a public duty, nor were they exercising a public power, nor in any other way did they occupy a public office.

16 In the present case there is no “office” or governmental power of any character. The concept of an “office”, in the context of liability for abuse of power, connotes an official position to which continuing functions or duties are assigned. Those duties or functions must be of a “public” nature. It is not sufficient merely to be employed by a public authority for public purposes. (C/f Ex parte Kearney (1917) 17 SR NSW 578.)

17 I know of no authority in which the “position”, said to be an “office” for purposes of the tort, was created solely by contract between the executive arm of government and the occupant of the position. Such authority to act as is conferred is not, at least in the case of a legal representative, a conferral of public power to which the concept of “abuse of power” applies.

18 It may well be that a person who is a public officer, acting in pursuance of contractual powers, is acting as a public officer. The tort has been said to extend to both statutory and common law powers. (See Tampion supra at 720.) However, a person whose capacity to act is entirely a creature of contract with the executive arm of government is not, in my opinion, thereby constituted a public officer for purposes of the tort. (See e.g. P D Finn “Public Officers: Some Personal Liabilities” (1977) 51 Australian Law Journal 313 at 314.)

19 The conduct complained of in the present case is not capable of constituting either the exercise of a public power or the discharge of a public duty. Not only is the role entirely contractual, the function performed is not itself a public function. The fact that the function was performed in the context of the performance of a public function by the Tribunal, or on behalf of a person who does perform such functions, does not infect the quite distinct role of a legal representative with the public character of either the Tribunal or of the Minister.

20 The first respondent drew attention to the significance of the executive function being performed by the Tribunal, on appeal from the Minister. His submissions emphasised that the legal representative was the agent of the Minister with respect to the performance of the duty to comply with the direction by the Tribunal to provide particulars and, arguably, with the performance of a broader duty on the part of the Minister to assist the Tribunal, which existed even before such an obligation was inserted into the Administrative Appeals Tribunal Act 1975 (Cth) s 33(1AA).

21 The Minister played no role in the proceedings before this Court and it would be inappropriate to determine whether the Minister owed a public duty of the character for which the respondent contends in the proceedings against the Minister. Assuming there was such a duty, in my opinion, the legal representative held no “office” for purposes of the tort of misfeasance in public office because this role was not, of itself, the performance of a public function, ie, it involved neither the exercise of a public power, nor the discharge of a public duty. The position of the solicitors, or of his firm, could not be characterised as a “public office.”

22 Smart AJ did not articulate in his judgment any basis for holding that there was an office to which either the terminology of “discharge of a public duty” or of “exercise of a power” could apply. His Honour’s relevant reasoning appears to be encompassed in the following passages (Noori v Leerdam supra):

“[64] A solicitor acting for the Minister in the AAT, conducting the proceedings and seeking to uphold the Minister’s or his delegate’s decision is not a subordinate functionary. The whole community has an interest in who is given a Protection Visa and is entitled to live amongst them. The community also has an interest in the fairness of the AAT proceedings and its decision – whether there were serious reasons for considering that the applicant was engaged in disentitling conduct. The public has to bear the cost of any resulting detention or deportation, at least in the first instance.

…

[65] … A solicitor acting for the Minister has a measure of independence as to the conduct of the case he is advancing on the Minister’s behalf.

…

[71] In the present case the solicitor for the Minister is required to perform important functions in which the public has an interest. See the reasons earlier given, eg in 64 above. Thus it is reasonably arguable that the solicitor is a public officer and that the public duty criterion is an appropriate guide as to whether the position of the Minister’s solicitor for the AAT proceedings is a public officer for the purpose of establishing the tort. The VCA assumed that the tort of misfeasance in a public office is concerned with the misuse of public powers which are incidents of the office.

…

[81] …

AAT Act

Henly

Mengel

(3) It is reasonably arguable that the impugned conduct of Mr Leerdam concerned the performance of public duties.

… .”

23 With respect to his Honour, it is not sufficient to hold that the solicitor performed important functions that involved a matter of public interest. That does not, in my opinion, give rise to an arguable case that the solicitor or his firm exercised a public function or held a public office, whether determined on the basis of the discharge of a public duty or on the basis of the exercise of a public power.

24 Arguably, by reason of his or her professional position, a solicitor appearing before a Tribunal can be said to have duties to the Tribunal analogous to the duties to the court. However, that is not enough, as three members of the High Court observed when rejecting special leave in Cannon. (See Tahche v Cannon [2003] HCA Trans 524 (12 December 2003).)

25 In any event, it is not appropriate to describe the duties of a solicitor representing a party as “public duties” for the purpose of characterisation of the position held by the solicitor as a “public office”. Similarly, the existence of a power, albeit not an express power but a power in the sense of a capacity to act, relevantly with respect to the answer for the particulars etc, does not involve a public power or capacity or authority of any character capable of characterising the position of the person as a “public office”.

26 In my opinion, a solicitor acting in proceedings, albeit proceedings concerned with the exercise of a public power or the discharge of a public duty, does not occupy a position within the scope of the tort of misfeasance in public office.

27 This conclusion is, in any event, covered by express authority in Cannon and by the Full Federal Court in Tampion supra at 722, where the court said that the position of counsel assisting a governmental inquiry was “obviously not a public office”. Far from being convinced that these decisions were clearly wrong, in the relevant respect, I agree with each.

28 Since writing the above I have read the observations of Allsop P on the misfeasance issue. His Honour expands on a number of the matters to which I have referred. I agree with his Honour’s reasons in this respect.

Abuse of Process

29 The principal submission advanced on the part of the appellants on the collateral abuse of process issue was the proposition that the tort can only be committed by a party to proceedings. The tort cannot, the appellants submitted, be committed by a legal representative of the party. It was common ground that there was no case which extended liability for this tort beyond a party in Australia, or in other common law nations in which the tort has developed such as New Zealand, Canada or England. There were, however, cases in the United States of America which did so.

30 On one view it could be said that, because there was no authority of the relevant character, it would not be appropriate to decide the matter on a strike out basis. However, alternatively, it may well be that the reason there is no relevant case law is precisely because the conclusion is obvious.

31 It is necessary to distinguish the tort from the broader based concept of “abuse of process” which arises in the context of stay applications or assertions of miscarriage of justice. (See most recently PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 at [3].) Although cases on the tort may inform the broader concept (see Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 522-523), the reverse does not necessarily work.

32 Significantly for present purposes, the issue has been considered and determined by the Full Federal Court in Emanuele v Hedley (Federal Court of Australia, 19 June 1998, unreported). In a joint judgment Wilcox, Myles and Nicholson JJ said:

Williams v Spautz

33 Relevantly, the defendant in that case was a police officer who had instituted proceedings for a criminal offence.

34 The significance of the conduct of a party was also central to the judgment of Harper J in Grimwade v State of Victoria (1997) 90 A Crim R 526. His Honour struck out an abuse of process pleading against the State because such a cause of action could not succeed “where the only specific allegation of abuse is that the prosecutor was motivated by a desire to damage the plaintiff’s reputation” (at 538).

35 The passages in Williams v Spautz supra at 509 to which their Honours referred in Emanuele v Hedley supra were:

“Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers” (at 523).
“ … This Court has regarded the purpose of the party instituting the proceedings as of crucial importance” (at 524).
See also the references to “the purpose in bringing proceedings” (at 526).

36 This and other relevant authorities all focus on the conduct of a party, generally the plaintiff. This Court has accepted that a defendant can commit the tort. (See Hamer-Mathew v Gulabrai (No 2) (1994) 35 NSWLR 92 and on appeal Gulabrai v Hamer-Mathew (New South Wales Court of Appeal, 26 June 1997, unreported). See, however, R P Balkin and J L Davis Law of Torts (3rd ed) (2004), Butterworths Australia at [25.24].)

37 The history of the tort of collateral abuse of process was discussed by Priestley JA in Spautz v Gibbs (1990) 21 NSWLR 230 at pp 270-280 and by Clarke JA in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 115-120. It is pertinent to note that their Honours made reference to the leading American text Prosser and Keeton on the Law of Torts, then in its 5th edition, and to United States case law.

38 It is sufficient for present purposes to state that the matter has been determined by an intermediate court of appeal in Emanuele v Hedley, although the United States authorities, upon which the first respondent relied in this Court, were not considered by the Full Federal Court.

39 The proposition for which the first respondent contends involves a significant expansion of the tort into spheres of conduct that are otherwise regulated, particularly by professional ethical standards. Issues of coherence of the law arise, which have not been fully agitated in this Court.

40 I am not prepared, in the absence of any authority from jurisdictions that are directly appropriate in the Australian context, to determine that the decision of the Full Federal Court is clearly wrong. (See Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135].) In my opinion, it is not clearly wrong.

41 The respondent relied upon United States cases which indicate that an attorney can commit the tort of collateral abuse of process. This case law included judgments by state courts which are entitled to respect in the common law world, such as the New York Court of Appeals which accepted, without elaboration, the application of the tort to an attorney as well as to a party. (Board of Education of Farmingdale Union Free School District v Farmingdale Classroom Teachers Association (1975) 38 NY 2nd 397; NYS 2d 635.) The position in the United States appears to be well established although it is said that “a plaintiff must establish that the alleged misconduct resulted primarily from the attorney’s ulterior motive or malice”. (See American Jurisprudence 2d Vol 1 s 21.) That is not what is suggested here.

42 The fact that the law in the United States has developed in a different manner is not an indication of the appropriate development in Australia, or in common law jurisdictions from which Australian courts most commonly find instruction. The difference in the systems with respect to tort proceedings are sufficiently significant that United States authorities should be treated with circumspection.

43 Significantly, for present purposes, the contingent fee system in the United States is such that, in many cases, the attorney can be seen to be the true moving party in litigation. That is not the case in our system.

44 As I am of the opinion that Emanuele v Hedley is not clearly wrong, both the trial judge and this Court would follow it. The contingency of a special leave application is not sufficient to refuse to apply the strike out test.

45 Macfarlan JA deals with an alternative basis for reaching the same conclusion. His Honour concludes that the further Amended Statement of Claim does not allege facts which would establish the tort of collateral abuse of process. In my opinion, this matter was not fully argued in this Court and I express no view on it.

46 ALLSOP P: I have had the advantage of reading the reasons of the Chief Justice and Macfarlan JA in draft. I agree with the orders proposed by Macfarlan JA. Subject to the comments below I agree with their Honours’ reasons.

47 As to misfeasance in public office, it can be accepted that the precise limits of the tort have not been defined: Northern Territory v Mengel [1995] HCA 65; (1996) 185 CLR 307 at 345 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ); Tampion v Anderson [1973] VR 715 at 720; and Cannon v Tahche [2002] VSCA 84; 5 VR 317 at 328. One of the areas of imprecision is the content of one of the elements of the tort, the existence of a “public officer”: Dunlop v Woollahra Municipal Council [1982] AC 158 at 172; Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 191, 197 and 235 and Mengel at 345-346,347,348 and 352.

48 Some authorities place emphasis on there being an office, the holder of which owes duties to members of the public as to how the office shall be exercised: see Tampion v Anderson at 720; and Henderson v McCafferty [2002] 1 Qd R 170 at 176-177 (Williams J). Other cases emphasise a functional approach by performance of a public duty or power: Henly v Mayor and Burgesses of Lyme (1828) 5 Bing 91; 130 ER 995; R v Bowden [1996] 1 WLR 98 at 100-103. See generally C Nicholls et al, Corruption and Misuse of Public Office (2006) Oxford, ch 3. This question, or a like question, can arise in contexts other than the elements of the tort of misfeasance in public office. The context in which the question arises will, of course, be important to the ascertainment of its content: see for example the common law offence of misconduct in public office: R v Bowden. In R v Boston [1923] HCA 59; (1923) 33 CLR 386 there was a charge of conspiracy that money was corruptly given by persons to another in the latter’s “official capacity” being a “public officer”. In that case four justices placed some emphasis on the separate existence of the office. The discussion by Byrne J in R v McCann [1998] 2 Qd.R 56 at 67-74 also reveals the importance of context. The Victorian Court of Appeal in Cannon v Tahche at 336-339 discussed the criteria for determining public office in the context of the tort. At 338-339, the Court said that the notion of the carrying out of a public duty may not be an appropriate guide in every case. What was essential, however, was the existence of a relevant power attached to the office. In that case, though a public prosecutor could be said to owe duties to the public, the prosecutor’s “duty of disclosure [did] not spring from any statutorily given power, but from practices established by judges over the years which have been designed to ensure that an accused person receives a fair trial”. This was a duty owed to the Court as a discretionary responsibility not one enforceable at the instance of the accused: Cannon v Tahche at 339.

49 Here, Mr Leerdam was an employed solicitor of a firm of solicitors that had entered a contract with the Commonwealth of Australia, represented by the Department of Immigration and Multicultural Affairs (the “Department”). That contract was in writing. (See Exhibit A on the appeal.) The performance of the retainer was expressed in that document in purely contractual terms. It did not purport to appoint the firm to any position or office or vest any public power in the firm or its solicitors. The obligations in relation to the performance of “Contract Services” by the firm were set out in cl 2, as follows:

“2.1 Upon referral of a litigation matter the Contractor will perform such of the Contract Services (including the preparation of Contract Material) as specified in Schedule 1 as are relevant and necessary to the litigation matter referred to the Contractor.

2.2 The Contractor will perform the Contract Services at the standard required by the performance criteria specified in Schedule 1 and in accordance with professional standards of conduct applying to the performance of work by professional legal advisers.

2.3 Where the Contractor is assigned Commonwealth officers to work with the Contractor in the provision of the Contract Services and thereby to acquire certain specialist skills possessed by the Contractor, the Contractor will ensure the transfer to those officers of the Contractor’s relevant specialist skills.

2.4 The Contractor will perform the Contract Services at the times, within the period and in the manner specified in Schedule 1 or as may be agreed by the parties at a later date.”

Australian Constitution

50 It is clear that the tort is concerned with the exercise of governmental or executive power vested in a person with a power or duty to exercise it. (I leave aside the question of judicial power, which, in the broad sense, may be seen as a form of governmental power.)

51 Here, the solicitors agreed by contract entered into with the Executive of the Commonwealth to provide their professional skill and expertise in representing the Minister and the Department. That was not the vesting of executive power in them. By that retainer they provided services of a professional character to the Executive.

52 Undoubtedly, the solicitors owed various duties by reason of their admission to practice. Those duties included ethical duties to the court and the public. Lawyers, of course, have a special relationship with courts in which they practice and, in particular, by whom they are admitted to practice. (See in this latter respect the Judiciary Act1903 (Cth), ss 55A, 55B, 55D and 86(1)(ga).) The phrase “officer of the court” is often used to describe the position of a solicitor. This is a special relationship sourced in their historical role at common law: Myers v Elman [1940] AC 282 at 290 and 302. The relationship was intimately related to the disciplinary jurisdiction of courts over solicitors. In New South Wales, see for example, the Legal Profession Act 1987 (NSW), s 5(1) and the Legal Profession Act 2004 (NSW), s 33(1); and see generally G J Graham-Green, Cordery’s Law Relating to Solicitors, 7th ed, (1981) Butterworths at 116; Halsbury’s Laws of England, 4th ed, vol 44(1), par 351; and D Ipp “Lawyers’ Duties to the Court” (1998) 114 Law Quarterly Review 63. Leaving to one side any historical difference between solicitors and barristers, the special relationship between lawyers and the Court gives rise (apart from any specific duty in relation to the conduct of litigation) to duties to the Court in respect of legal processes and proceedings and duties of candour and fairness. In speaking of counsel Lord Reid said in Rondel v Worsley [1969] 1 AC 191 at 227:

“But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.”

53 Without limiting the extent and importance of these duties, it is, however, a misapprehension of their character to say that they are transmogrified into governmental or executive duties or public duties if the lawyer is retained to act for the Executive in one of its manifestations.

54 The respondent relied on what was said to be the width of the words of Best CJ in Henley v Mayor of Lyme at 107-108; at 1001 (cited with approval by Brennan J in Mengel at 355):

“Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that, is an injury to an individual, an action may be maintained against such public officer. The instances of this are so numerous, that it would be a waste of time to refer to them.

Then, what constitutes a public officer? In my opinion, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer.

…

It seems to me that all these cases establish the principle, that if a man takes a reward, — whatever be the nature of that reward, whether it be in money from the crown, whether it be in land from the crown, whether it be in lands or money from any individual, — for the discharge of a public duty, that instant he becomes a public officer; and if by any act of negligence or any act of abuse in his office, any individual sustains an injury, that individual is entitled to redress in a civil action.”

55 The respondent emphasised the payment of money for the discharge of a public duty in this passage.

56 No doubt the firm was paid, and paid public funds. That payment, however, was to effect its duties and responsibilities of a professional character under a retainer with the Executive, not to exercise governmental or Executive power, nor to fulfil public duties. The firm was to assist and represent the Executive in the discharge of (the Executive’s) responsibilities. Any public character of these tasks is not to be found in the power or duties undertaken pursuant to the retainer, but in the over-riding ethical and professional duties of the firm. Whether or not these duties were breached by the firm’s conduct here (upon which, obviously, I make no comment) they are not the public duties breach of which the respondent complains.

57 As retained legal practitioners, Mr Leerdman and the firm might be subject to Legal Services Directions issued by the Attorney-General under the Judiciary Act, s 55ZF. However, s 55ZG(3) makes clear that non-compliance with such may not be raised in any proceeding, except by, or on behalf of the Commonwealth.

58 In my view, none of Mr Leerdam and the partners of the firm was a public officer for the tort of misfeasance in public office. They held no office. They relevantly carried out no public duties.

59 For the above reasons, the paragraphs of the Amended Statement of Claim asserting misfeasance in public office by Mr Leerdam and the firm should be struck out, without any liberty to replead.

60 No part of the above is directed to the position of the former Minister and the Commonwealth. No application was brought by either of them to strike out any part of the pleading against it or him. It is therefore not appropriate to deal with the position of these parties, other than to say what is necessary to illuminate how their position differs from that of the solicitors.

61 There can be no doubt that in its activity and decision-making the Administrative Appeals Tribunal (the “Tribunal”) was exercising Executive power. Likewise, to the extent that the Minister participated in the Tribunal’s process, this was not done as a private citizen, but as a member of the Executive whose decision is being reviewed under the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). The AAT Act regulates the status of the decision after an application for review is made to the Tribunal: the AAT Act, s 26.

62 The respondent submitted that after the review was instituted the Minister owed an obligation to afford procedural fairness to the applicant which, if relevantly deliberately breached, could found an action in tort for misfeasance in public office. It is unnecessary to discuss the nature and content of natural justice or procedural fairness as a duty, or as a right or as a condition of the exercise of the relevant power. It suffices to say that it is highly debatable whether the Minister owed a duty to afford procedural fairness to the applicant in a review of his decision that had been instituted under the AAT Act and that was under the control of the Tribunal.

63 That is not to say, however, that inhering in the Executive power in conducting him or herself in a review in the Tribunal a Minister would not have duties of the character discussed by Mahoney J (as he then was) in P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366 at 383-384. The duty of the Executive to assist a court “to arrive at the proper and just result”, might be seen to be mirrored by a duty to assist another agent of the Executive with statutory powers of review to reach the proper and just result. This may be seen as part of the duty of every Minister of the Crown to the Sovereign to perform his or her functions honestly and fairly and to the best of his or her ability: Lord Greene MR in B. Johnson and Company (Builders) Limited v Minister of Health (1947) 177 LTR 455 at 459 cited by Williams J in Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 221-222.

64 These are fundamental and important questions of power. It is not appropriate to deal with them beyond identifying them. Any consideration of them would involve an examination of the nature and content of the Executive power under the Australian Constitution, s 61 and thus a matter arising under, or involving the interpretation of, the Constitution for the purposes of s 76(i) of the Constitution. An appropriately drafted notice under the Judiciary Act, s 78B would therefore be required.

65 As to abuse of process, the reason for the making of the orders in this Court in relation to the paragraphs of the pleading concerned with abuse of process is that, on the prevailing authority, the tort can only be committed by a party to the proceedings. As the reasons of the Chief Justice reveal, the decision of the Full Court of the Federal Court in Emanuele v Hedley (Federal Court of Australia, 19 June 1998, unreported) is determinative of the question unless that decision be plainly wrong. It is not plainly wrong (as to the meaning of which expression, see Gett v Tabet [2009] NSWCA 76 at [261]-[301]).

66 Macfarlan JA also deals with the submission dealt with by the primary judge set out at [88(f)] of his reasons, that abuse of court procedures does not of itself found the tort; the tort being based on a collateral purpose in instituting the litigation (or, arguably, maintaining it: Varawa v Howard Smith Company Ltd [1911] HCA 46; (1911-2) 13 CLR 35 at 91 where Isaacs J said “the process is employed”).

67 That submission was not dealt with separately in the written submissions in this Court. It was (albeit faintly) kept alive by counsel in argument, though without any real elaboration. The Chief Justice (at [45] of his reasons) would express no view on the issue because it was not fully argued. I agree with him that it was not fully argued. It is an important question, though not one that is necessary to the disposition of the appeal. I agree with what Macfarlan JA has said about the issue, with the caveat that the Court was not assisted by detailed argument on the issue. Important questions of conformance of the tort with other principles of law, such as the finality of litigation (in the broad sense), the relationship between the tort and the operation of the Executive power in a process such as that conducted in the Tribunal and the relationship between the tort and disciplinary powers of the Court (as to which see D Ipp op cit) arise. These are matters of some importance, which perhaps militate against the expression of final views on the matter. Nevertheless, given that the primary judge dealt with the issue and that the attack on the validity of his views in this aspect was sought to be kept alive by counsel, it is appropriate for the issue to be canvassed as Macfarlan JA has done, though with the above caveat that I have expressed to my agreement with what he has written.

68 MACFARLAN JA: This is an application for leave to appeal from a decision of Smart AJ refusing to summarily dismiss or strike out the first respondent’s claim for damages against the applicants and declining to hold that the applicants (an employed solicitor and the firm for which he worked) were entitled to advocates’ immunity from suit. The claim against the applicants is based upon the torts of misfeasance in public office and collateral abuse of process.

Conclusions

69 For the reasons which appear below, my view is that the allegations pleaded against the applicants would not, if proved, establish the commission by the applicants of either of these torts and that leave to appeal should be granted, the appeal allowed and the proceedings against the applicants summarily dismissed.

70 The deficiency in the claim that the applicants committed the tort of misfeasance in public office is that, on the basis of the allegations made against them, the applicants did not have the right or duty to exercise any power or authority of a public nature.

71 The deficiencies in the claim as to the tort of collateral abuse of process are that the tort is not available against persons such as the applicants who were not parties to the relevant proceedings and that, on the basis of the allegations made against them, the applicants did not have any collateral purpose in representing the Minister in the proceedings which occurred before the Administrative Appeals Tribunal.

72 The principles of advocates’ immunity are insufficiently certain in their application to these two torts to justify dismissal or strike out of the proceedings against the applicants on the basis of the applicants’ defence of immunity.

Leave to Appeal

73 The application for leave to appeal was listed for hearing concurrently with the hearing of the appeal which would follow if leave were granted. Accordingly, the issues have been fully argued as if on an appeal. They raise important questions of tort law and as to the immunity from suit of advocates. In my view leave to appeal should be granted. I will refer hereafter to the parties as the appellants and respondents, as appropriate.

Summary Dismissal and Strike Out Application

74 The primary judge disposed of the appellants’ motion for summary dismissal, or alternatively strike out, of the claims against them by concluding that it was reasonably arguable that the pleaded causes of action were maintainable and that the appellant could not defeat the claims by relying upon principles of advocates’ immunity. As the causes of action are in my view clearly not maintainable and the trial which would otherwise take place would be a lengthy one (4 to 6 weeks in the primary judge’s estimate: Judgment [149]), I consider that the appropriate course is to summarily dismiss the proceedings against the appellants.

75 Such a course should only be taken in a clear case. Descriptions of the test to be applied have included such phrases as “so obviously untenable that it cannot possibly succeed” and “manifestly groundless” (General Steel Industries Incv Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129). Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. Whilst caution is also required where, as here, the application turns on questions of law and there is no reasonable prospect that deficiencies in what is pleaded will be able to be cured by amendment, opportunities to summarily dismiss or strike out claims will arise more frequently.

76 General Steel Industries was a case which turned on questions of law. The view I have of the present case mirrors that taken by Barwick CJ in that case:

“Rule 18 further authorizes me, if I consider it just so to do, to stay or to dismiss the plaintiff’s action. This is not a case in which the plaintiff by amendment of the pleading could improve its position. I have been mindful throughout my consideration of this matter of the principles to which I have called attention and which govern the exercise of the power summarily to terminate an action. I have reached the firm conclusion that consistently with those principles I ought to intervene by order under this rule to prevent further proceedings in the action, as, in my opinion, to use one of the expressions which I have quoted, the plaintiff’s claim is ‘manifestly groundless’ and that to allow it to proceed ‘would involve useless expense’. In my opinion the proper course is to dismiss the plaintiff’s action, which I now do” (at [138]).

77 A similar approach was taken by the High Court in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241. In that case the court took the view that the Statement of Claim in an action by a financier against the auditors of a borrower corporation did not disclose a cause of action in negligence. As a result, it upheld the decision in the court below to strike out the claim. Another example is to be found in the decision of this Court in Wickstead v Browne [1992] NSWCA 272; (1992-3) 30 NSWLR 1 to uphold the summary dismissal of a claim that a trustee was in breach of a common law duty of care owed to the beneficiary of a trust. A further example is Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 where the Victorian Court of Appeal upheld the striking out of a claim for misfeasance in public office bought against a barrister, who acted as prosecutor in a criminal trial, and his instructing solicitor.

The Factual Circumstances

78 The factual circumstances alleged against the appellants, in the first respondent’s Further Amended Statement of Claim (“FASC”) and which for the purposes of this application must be assumed to be accurate, were essentially as follows.

79 The first respondent (“Mr Noori”) was born in Afghanistan in 1958. After a successful career in the Ministry of Foreign Affairs of Afghanistan, he arrived with his family in Australia on 30 September 1999. He had a tourist visa. On his arrival he applied for political asylum as a result of fears of political persecution by the Taliban Government of Afghanistan which came to power in 1996.

80 Pursuant to powers vested in him under the Migration Act 1958 (Cth) (“Migration Act”) the then Minister for Immigration and Multicultural and Indigenous Affairs (the second respondent and hereafter “the Minister”) had Mr Noori placed in immigration detention. He remained there for over six years, ultimately being released on 31 January 2006 after finally obtaining a Protection Visa pursuant to s 195 Migration Act.

81 Mr Noori had applied for a Protection Visa on 6 October 1999, early in his period of detention. The Minister had had power to grant it to him.

82 At about that time Ms Nasiba Akram, a member of the Afghan community in Sydney, forwarded to the Minister’s delegate, hearsay allegations that Mr Noori had engaged in war crimes and crimes against humanity in Afghanistan. Mr Noori alleges that Ms Akram exerted pressure on the Minister by writing directly to him and by way of comment to the media concerning Mr Noori and by the subsequent provision of information to the Minister’s solicitor. Paragraph 11 of the FASC alleges that:

“Nasiba Akram motivated by malice, believed that anyone sharing the ethnic descent [of Mr Noori] and holding political views sympathetic to the Soviet regime that was in power in the period 1979 to 1989 in Afghanistan, ought to be denied a Protection Visa and be detained and deported from Australia”

83 On 9 August 2000 the Minister, by his delegate, notified Mr Noori that he was not entitled to a Protection Visa because the delegate found that there were serious reasons for considering that Mr Noori had engaged in disentitling conduct within the meaning of Article 1F of the 1951 Convention Relating to the Status of Refugees.

84 As he was entitled to do, Mr Noori applied to the Administrative Appeals Tribunal (“AAT”) to have that decision reviewed.

85 The first appellant (“Mr Leerdam”) was appointed as the Minister’s solicitor for the purpose of the AAT proceedings. The firm of solicitors which employed him, Sparke Helmore (the second appellant), is alleged to be vicariously liable for the actions of Mr Leerdam in connection with the AAT proceedings. Those proceedings culminated in the AAT affirming the Minister’s decision to refuse Mr Noori a Protection Visa.

The Conduct Complained Of

86 The following paragraphs of the FASC contain the complaints as to matters of fact which are at the heart of Mr Noori’s claims against the appellants. They appear under the heading “The failure to provide particulars”:

“20. On 27 February 2001 Leerdam applied for an order that certain materials be treated confidentially as a result of an apprehension of risk to the safety of witnesses. That application was supported by an affidavit of Nasiba Akram of 21 December 2000.

21. On 11 April 2001 Deputy President Wright of the AAT made orders that certain annexures to the affidavit of Nasiba Akram of 21 December 2000 and other materials be kept confidential and that they not be made available to either the plaintiff [Mr Noori] or his legal representatives.

22. The plaintiff’s solicitor by letter dated 26 April 2001 wrote to Leerdam requesting particulars of the alleged disentitling conduct under Article 1F and precise details as to any alleged crimes said to comprise the disentitling conduct.

“precise details as to the following: (a) when it is alleged that the crime was committed; (b) where it is alleged that the crime was committed, providing the name of the town as well as the precise location, and (c) how it is alleged that the crime was committed, such as the precise actions of [Mr Noori] alleged to constitute the crime”

24. The Minister, or Officers (presently unknown) in his department, or in the alternative Leerdam acting without instructions, did not provide any or any sufficient particulars of the disentitling conduct as ordered by the Tribunal by 25 May 2001, or at any time prior to the conclusion of the hearing before the AAT on 17 August 2001 when those particulars were available to the Minister and/or Leerdam and could have been provided prior to the commencement of the first substantive hearing before the AAT.

25. The Minister and/or Leerdam did not apply to have the AAT’s orders of 17 May 2001 varied or set aside.

26. The plaintiff by his solicitor requested full particulars of the disentitling conduct and the nature of the case against the plaintiff including a summary of the identification evidence and other secret evidence on a number of occasions prior to the conclusion of the hearing in the AAT on 17 August 2001. Such particulars were not provided when those particulars were available to the Minister and/or Leerdam and could have been provided.

27. During the course of the AAT hearing Leerdam applied to have certain evidence heard in secret by the AAT without the plaintiff or his lawyer being present. Leerdam told the AAT harm would ensue if this course was not followed. Secret evidence was heard. No sufficient particulars of the secret evidence were provided to the plaintiff prior to the end of the hearing in the AAT on 17 August 2001.

28. On 16 August 2001 when pressed by Deputy President Wright of the AAT for further factual particulars either on the instructions of the Minister, or an unknown Officer, or in the alternative Leerdam acting without instructions, Leerdam then asked for and had a secret hearing for 25 minutes in relation to the provision of particulars. At the conclusion of the secret hearing, Deputy President Wright declined to make any further order for the provision of particulars but did not revoke orders previously made.

87 It was on 12 October 2001 that the AAT affirmed the Minister’s decision to refuse Mr Noori a Protection Visa.

88 Mr Noori then applied to the High Court to have the decision of the AAT reviewed on the basis that he had been denied procedural fairness. The matter was remitted to the Federal Court where Mr Noori was unsuccessful at first instance but successful before the Full Court. In its judgment of 26 March 2004, the Full Court found that Mr Noori had been denied procedural fairness. It quashed the AAT decision and required the AAT to rehear Mr Noori’s application. The procedural unfairness was held to flow from the fact that Mr Noori did not have proper particulars of his alleged disentitling conduct. The Court was also critical of the exclusion of Mr Noori from part of the AAT hearing and of the orders made by the AAT precluding disclosure of certain documents to Mr Noori.

89 Mr Noori alleges in [32] of the FASC that:

“During 2004 and 2005 proper particulars of the disentitling conduct and the identification evidence were provided to the plaintiff albeit in a piecemeal fashion, such that by the commencement of the rehearing before Deputy President Walker on 28 February 2005, the plaintiff had been provided with proper particulars of the alleged disentitling conduct, all of which were available prior to the commencement of the substantive hearing before Deputy President Wright in August 2001”.

90 Following a rehearing, the AAT found that there were no serious reasons for considering that Mr Noori had engaged in any disentitling conduct within the terms of Article 1F. As a result, on 31 January 2006 Mr Noori was issued a Protection Visa and released from detention. He alleges that had he been provided in a timely fashion with full particulars of the case against him he would have been in a position to lead at the first hearing the evidence he led in the hearing before the AAT in 2005 and would have been granted a Protection Visa four years earlier.

The Proceedings at First Instance

91 The proceedings at first instance were commenced by the filing of a Statement of Claim on 25 May 2007. After an amendment to the Statement of Claim on 19 September 2007, the present appellants filed a notice of motion seeking summary dismissal of the proceedings as against them pursuant to Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 and, in the alternative, an order striking out the Amended Statement of Claim as against them pursuant to Rule 14.28(1) of those Rules.

92 The Statement of Claim was amended again prior to the hearing of the Notice of Motion commencing before Smart AJ on 8 October 2007. In his further amended (and for present purposes, final) form of Statement of Claim, Mr Noori:

(a) Sought general, exemplary and aggravated damages from the defendants in respect of loss and damage to him flowing from his detention, including psychiatric injury and loss of career opportunities.

(b) Claimed that Mr Leerdam and the Minister were liable in damages for the torts of misfeasance in public office and abuse of process.

93 By judgment of 30 May 2008, Smart AJ declined to make either of the orders sought by the appellants and dismissed their motion. As indicated earlier, the appellants have sought leave to appeal from that decision. The Minister and the Commonwealth were included with Mr Noori as respondents to the application for leave to appeal but did not take any active role.

Misfeasance in Public Office

The Allegations

94 The following allegations are made in [7], [15], [19] and [19A] of the Further Amended Statement of Claim (“FASC”):

Migration Act

15. The Minister, or officers employed by his department and under his direction (“Officers”) appointed the first defendant, Mr Leonard Keith Leerdam (“Leerdam”) as his solicitor for the AAT proceedings.

19. Leerdam and/or Sparke Helmore was paid a fee by the Commonwealth to represent the Minister.

19A. Leerdam exercised a power of a public nature in the following respects:

(a) He formulated and presented a case to the Administrative Appeals Tribunal;

(b) He determined what evidence, materials and particulars would be communicated to the plaintiff’s legal representatives;

(c) He took such steps as were necessary to fulfil the directions or orders made by the Tribunal from time to time.”

95 The claims made under the heading “Misfeasance in Public Office” in the FASC are framed as follows:

“36. The Minister was a public officer for the reasons given in paragraphs 6 and 7.

Migration Act

Particulars

(a) The plaintiff was detained for the period 30 September 1999 until 31 January 2006 inclusive.

38B. Notwithstanding the exercise of the power to detain referred to in paragraph 38A herein, the Minister and/or the Officers and/or Leerdam declined to provide the plaintiff with the particulars of the alleged disentitling conduct notwithstanding orders made by Deputy President Wright that such particulars be provided.

Particulars

(a) The plaintiff refers to the matters set out in paragraphs 20-28 herein.

38C. By exercising the power to detain referred to in paragraphs 5, 38A and 38B herein and by failing to provide the particulars referred to in paragraphs 20-28 herein, the Minister and/or the Officers and/or Leerdam were acting in bad faith and/or for an improper motive in that by their conduct they intended to injure the plaintiff or in the alternative were recklessly indifferent as to whether the plaintiff might suffer injury.

Particulars

(a) To the best of the plaintiff’s knowledge and belief the Minister decided to detain the plaintiff indefinitely following a demand by Nasiba Akram that the plaintiff not be granted a Protection Visa. Further particulars will be provided following discovery.

(b) To the best of the plaintiff’s knowledge and belief the Minister was aware or in the alternative should have been aware that if the plaintiff was not provided with proper particulars of any alleged disentitling conduct as ordered, the plaintiff would be unable to satisfy the Tribunal that he is a person to whom a Protection Visa ought be granted.

(c) To the best of the plaintiff’s knowledge and belief, prior to the commencement of the substantive hearing before the AAT referred to in paragraph 14 herein, the Minister directed Leerdam that the plaintiff not be given particulars of the alleged disentitling conduct notwithstanding the orders made by Deputy President Wright and referred to in paragraph 23 herein.

(d) To the best of the plaintiff’s knowledge and belief prior to the hearing referred to in paragraph 14 herein, Leerdam received both written and verbal requests from Nasiba Akram that the plaintiff ought not be granted a Protective Visa. Further particulars will be provided following discovery.

(e) To the best of the plaintiff’s knowledge and belief Leerdam either alone without instruction or in the alternative following a direction from the Minister and/or the Officers determined that the plaintiff would not be provided with particulars of his alleged disentitling conduct notwithstanding the orders made and referred to in paragraph 23 herein.

38D In the alternative to paragraph 38C herein, the Minister and/or the Officers and/or Leerdam, acting either alone or on instructions from Minister and/or the Officers acted in reckless disregard as to whether the plaintiff should be subject to continuing indefinite detention and further were indifferent as to or had a reckless disregard as to whether the plaintiff would receive a fair hearing before the AAT in circumstances where he was not provided with the particulars of his alleged disentitling conduct.

38E Further in the alternative the Minister and/or the Officers and/or Leerdam knew or had a reckless disregard for the fact that as a consequence of the failure to provide the particulars ordered and referred to in paragraphs 20-28 herein the AAT was likely to make an incorrect decision and affirm the decision of the Ministers Delegate made on 9 August 2000.

Particulars

(a) On 12 October 2001 the AAT affirmed the decision of the Minister’s Delegate of 9 August 2000 to refuse the plaintiff a Protection Visa.

Migration Act

(c) The plaintiff as a consequence of his continued detention after the decision made by the AAT on 12 October 2001 continued to be detained until 31 January 2006.

Migration Act

38G The matters pleaded in paragraphs 36 – 38F and paragraphs 39, 40, 43, 44, 44A and 44B below were committed in such a fashion as to constitute misfeasance in public office and the plaintiff has suffered and will continue to suffer loss and damage.”

96 Paragraphs 39, 40, 43, 44, 44A and 44B of the FASC appear in it under the heading “Abuse of process” and are set out in [123] below under the corresponding heading in this judgment.

The Primary Judgment

97 The conclusions of the primary judge in relation to the cause of action based on misfeasance in public office were as follows:

Neilson & Anor v City of Swan

Henly

Mengel

Three Rivers

(No 3)

“… the authorities have not established definitively the nature and characteristics of a ‘public office’ for the purposes of the tort.” (citations omitted)

78 The judge found it unnecessary to pursue this aspect in view of the concessions made that “[it] is at least settled that a municipality is the holder of public office for the purposes of a misfeasance claim.

(a) “The impugned conduct of the public officer must concern the performance of public duties ( Sanders at 345) or the exercise of public functions” ( Three Rivers (No 3) at 191) at [39].

(b) “… the precise nexus which is required between the impugned conduct on the one hand and the public duties or functions of the public officer on the other is attended by some doubt” (citations omitted) at [40].

(c) “The tort can be constituted by omissions as well as by actions”. (citations omitted) at [42].

(d) In Mengel the majority did not accept or endorse the statement in Tampion that a plaintiff who alleges misfeasance must be “the member of the public or one of the members of the public to whom the holder of the office owed a duty not to commit the particular abuse complained of”. Brennan J, Deane J and the Court of Appeal of New Zealand in Garrett thought that the suggested element was not one that formed part of the tort (at [52] – [61]).

80 Buss JA gave consideration to the relevant authorities including Cannon v Tahche . I agree with the views expressed by Buss JA summarised above.

(1) There is substance in the plaintiff’s contention that the role of Mr Leerdam differed substantially from that of prosecutor and that of an employed instructing solicitor or officer in a criminal prosecution, ie, a member of staff. Mr Leerdam was instructed to appear for the Minister in an administrative review, conduct the proceedings on the Minister’s behalf and seek to uphold the decision of the Minister including that of his delegate. The decision maker had to comply with s 37 of the AAT Act . That involved providing a statement setting out the findings on material questions of fact and referring to the evidence or other material on which those findings were based. It had to give the reasons for the decision. Also to be supplied were copies of every other document or part of a document that is in the decision maker’s possession or under his control and is relevant to the review of the decision by the AAT. Heavy responsibilities attached to Mr Leerdam’s position. He had to take steps to protect the confidentiality of the Department’s sources of information so far as appropriate, balancing that with the requirements of procedural fairness. In the ordinary course, when an order is made by the AAT for the supply of particulars in a matter of major gravity, the agent or solicitor conducting the proceedings on behalf of the Minister in the AAT would obtain information from the Department’s officers and potential witnesses as to the answers to the requests for particulars. The agent or solicitor would then draft or settle the answers. It seems that he did so in the present case. The answers were cast in such broad terms that they did not tell the plaintiff of the case he had to meet. The Full Federal Court held the particulars supplied were insufficient and was critical of the non-supply of meaningful particulars.

(2) It is reasonably arguable that Mr Leerdam was a public officer. Heavy responsibilities attached to the office he occupied in the circumstances of this case. Reliance is placed upon the judgment of Best CJ in Henly and Brennan J in Mengel .

(3) It is reasonably arguable that the impugned conduct of Mr Leerdam concerned the performance of public duties.

(4) There is a marked difference of approach between Brennan J in Mengel and the VCA in Cannon & Ors v Tahche . With the differences which exist it would be incorrect for me to prefer one view and summarily, dismiss or strike out the cause of action of misfeasance in public office.

(5) The precise extent and limits of the tort have not been the subject of binding authority by the High Court. In the United Kingdom the opportunity to do so was declined. In Three Rivers it was recognized that the tort has developed over the centuries and is still developing. One difficulty lies in foreseeing the multitude of different factual situations which may arise.

98 In addition, the primary judge rejected objections taken by the appellants to the allegations in the FASC that, in the alternative to acting on instructions from the Minister, Mr Leerdam had acted either alone or without instructions (FASC paras 24, 28, 38C(e), 38D 38E and 39) (at [86] and [95] above). He found that these allegations were reasonably arguable. The proposed grounds of appeal do not attack this conclusion. I accordingly proceed upon the basis that his Honour was not in error on this point.

Analysis

99 The tort of misfeasance in public office was referred to by the plurality judgment in Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 as “well-established” (at 345). Their Honours said however that “in important respects” the precise limits of that tort were still undefined. The discussion which followed in the judgment related to the mental element required to establish the tort and it seems that it was, at least primarily, to that which their Honours were referring.

100 In Cannon v Tahche the Victorian Court of Appeal carefully analysed the authorities as to the nature and elements of the tort. There is no need for me to repeat that analysis as (subject to what I say in [114-116] below) I agree with it and with the conclusions arrived at. In particular, I agree with the Court’s primary ground of decision that an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it ([49]-[53], [61]).

101 One of the defendants in that case was a barrister who had appeared as prosecutor at the trial of the plaintiff for rape. The plaintiff was convicted but his conviction was later quashed. He complained of the manner in which the prosecution had been conducted and alleged that the prosecutor and his instructing solicitor had committed the tort of misfeasance in public office by withholding from him evidence that the complainant had fabricated her allegations.

Therefore the said conduct was wrongful and improper.

44A. Leerdam and/or the Minister and/or the Officers failed to have regard to the improper purpose motivating Nasiba Akram (as pleaded in paragraphs 9, 10, 11 and 39) and thereby engaged in an abuse of the process of the AAT.

44B. Leerdam and/or the Minister and/or the Officers failed to independently consider the matters put forward by Nasiba Akram which led to:

(a) the decision to procure the confidentiality orders;

(b) asking the AAT to receive secret evidence;

(c) the conduct of a 25 minute secret hearing;

(d) the failure to provide proper or any particulars of the disentitling conduct under Article 1F despite the orders of 17 May 2001;

(e) failing to summarise the secret evidence for the plaintiff prior to the conclusion of the hearing.

Further Particulars

(i) At the time Deputy President Wright made the order for particulars on 17 May 2001 Leerdam knew or should have known that he would not supply the particulars and failed to raise this matter with the AAT Member.

(ii) Subsequent to Leerdam’s failure to provide particulars as ordered on 17 May 2001 by the AAT Leerdam failed to seek to have the orders that the Minister provide particulars or the earlier confidentiality orders varied such that proper and sufficient particulars could be provided in accordance with the terms of those orders.

45. The matters pleaded in paragraphs 39 – 44B herein, were committed in such fashion as to constitute an abuse of process.

46. [Allegations deleted by amendment]

47. The above matters support the claim for relief for abuse of process set out in the proceeding sections under the heading Abuse of Process and set out in this statement of claim.”

124 The primary judge found that Mr Noori’s claim against the appellants that they were liable for damages for the tort of collateral abuse of process was reasonably arguable. His reasoning was as follows:

“113 The predominant collateral purpose of the Minister and Mr Leerdam in not supplying the particulars ordered was to force the applicant-plaintiff to embark on participating in the review where he did not have adequate particulars of the allegations of disentitling conduct. The plaintiff was in detention so that the conclusion of the review was a matter of importance. It must have been evident both to the Minister and to the solicitor that without such particulars the plaintiff would not be able to meet the allegations of disentitling conduct and that this was likely to lead to his application being dismissed.

114 The advantage which the solicitor sought to gain by the non-supply of the particulars was to prevent the applicant for review mounting an effective defence to the Minister’s case by showing that there were no serious reasons for considering that the plaintiff was engaged in the disentitling conduct alleged.

(a) the adoption of Ms Nasiba Akram’s approach and her allegation including her improper purpose that people of the plaintiffs racial background (ethnic descent) and having held political views sympathetic to the former Soviet regime should not be eligible for or issued with a Protection Visa but should be detained or deported; and

(b) the Minister and Mr Leerdam preventing the plaintiff mounting an effective case on the administrative review in rebuttal of allegations of disentitling conduct by failing to supply adequate particulars of these allegations; and

(c) further unfairly conducting the review proceedings, by failing to provide the plaintiff with an informative summary of the evidence given in his absence and that of his solicitor including a summary of the identification evidence and its weakness and failing to give the plaintiff an informative summary of the 25 minute hearing as to particulars.

116 Effectively, the conduct of the Minister and Mr Leerdam constituted an abuse of process as it deprived the plaintiff of the opportunity of a fair administrative review. Evidence was taken in the absence of the plaintiff and his solicitor [Mr Leerdam stating harm would otherwise ensue] and no informative summary was provided. Mr Leerdam was reluctant to deal with the question of particulars in the presence of the plaintiff and his solicitor and did not deal with them until the plaintiff and his solicitor had left the hearing at the Deputy President’s request.

125 Before the Court of Appeal the appellants’ principal submission in relation to the collateral abuse of process claim was that the tort can only be committed by a party to proceedings and that it cannot therefore be committed by persons such as the appellants who acted only as legal representatives of a party.

126 Spigelman CJ has dealt with this submission in [28 - 43] of his judgment. I agree with his conclusion that the submission is well-founded and that the collateral abuse of process claim as pleaded is accordingly flawed. I agree also with the reasons he gives.

127 Before the Court of Appeal the appellants also (transcript page 3) took the point, which had been taken at first instance, that abuse of court procedures does not of itself found the tort. As recorded by the primary judge, the submission was that:

“the manner in which a claim is conducted even if wrongly motivated or unreasonable, does not give rise to the tort of collateral abuse of process. The essential element of the cause of action is that the process is being used for a predominant purpose which is beyond the proper scope of the process” (Judgment [88(f)]).

128 This submission of the appellants is in my view also well-founded. The effect of Mr Noori’s allegations is that the appellants’ purpose was no more than to have the Minister succeed in the AAT proceedings by having the AAT uphold his decision to deny a Protection Visa to Mr Noori. This was not a collateral purpose. Ms Akram allegedly wanted to bring about a denial of a Protection Visa to Mr Noori because of his ethnic descent and alleged association with the Soviet regime in Afghanistan. Thus she wanted the Minister to succeed in the AAT proceedings. In desiring this, neither she nor the appellants (who were alleged to have adopted her purpose) were seeking to obtain a collateral advantage from the proceedings. Rather they were seeking to achieve success in the proceedings by resisting the review order sought by Mr Noori. This was not a collateral purpose, irrespective of the means which might have been used to achieve that purpose. If Mr Noori’s allegations are correct, success for the Minister in the AAT proceedings was, or was sought to be, procured by improper means which fell within the broad concept of “abuse of process”. The consequences of conduct constituting abuse of process might in some cases include cost consequences for the parties and/or their lawyers, and disciplinary consequences for lawyers. However, the authorities show that the tort of collateral abuse of process operates in a much more confined area than the broad concept of abuse of process and requires the use of proceedings for the purpose of obtaining a collateral, and therefore illegitimate, advantage.

129 The decision of the High Court in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 arose out of an action for wrongful dismissal brought by a lecturer against the university which had employed him. The lecturer laid criminal informations against various officers of the university alleging a number of offences including criminal conspiracy to defame and conspiracy to injure him without justification and by illegal means. The High Court affirmed the decision at first instance to stay the prosecutions permanently upon the ground of abuse of process, it being found that the lecturer’s predominant purpose in instituting and maintaining the criminal proceedings was to exert pressure on the university to reinstate him and/or to agree to a favourable settlement of the case for wrongful dismissal.

130 Whilst the case was one in which a stay was sought and was not one alleging commission of the tort of abuse of process, that tort was the subject of considered comments of the Court. In the plurality judgment it was said that “central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers” (at 523). Their Honours referred to Grainger v Hill and another (1837-8) 4 Bing (NC) 212; 132 ER 769 where the plaintiff used the threat of arrest of the defendants in proceedings for recovery of a debt to achieve the ulterior purpose of obtaining possession of a certain ship’s register. In that case Tindal CJ referred to the process of the law having been abused “to effect an object not within the scope of the process” (at 221; 132 ER at 773).

131 Similarly, in Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911-2) 13 CLR 35 (referred to in Williams v Spautz with evident approval at [524]) Isaacs J said with reference to the tort of abuse of process:

"the term 'abuse of process' connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose" at (91).

132 The “attainment of the claim in the action” (that is, here, success before the AAT) was what, on the allegations made in the FASC, was in fact sought by the appellants and the Minister (see particularly FASC [39A] set out in [123] above), albeit that Mr Noori alleges that they used improper means to achieve that goal.

133 The fact that an overt act in pursuance of the collateral purpose has sometimes been said to be a necessary element of the cause of action emphasises the nature of the purpose which is required to be established. It is not necessary or appropriate in this case to consider whether proof of such an act is necessary (see generally Williams v Spautz at 527-8). It is sufficient to point out that the occurrence of such an act will usually be proved and, if it is, it will usually identify or confirm the existence of the collateral purpose. Thus as Gaudron J pointed out in Williams v Spautz:

“ … many, if not all, of the cases in this area and in which it has been held that there was an abuse of process have involved some positive act. That is not surprising: many cases are cases in tort where damage is essential, and it is difficult to conceive of damage occurring in this area without some act or threat; and, at least ordinarily, improper purpose is discoverable only because of some act done in furtherance of the purpose” (at 554).

134 Here, the overt acts relied upon by Mr Noori (as recorded in the judgment at first instance at [90(g)]) were “the persistence in leading evidence and making submissions at the hearing without having ensured compliance with the Tribunal’s direction in regard to particulars” and “the engaging in unfair tactics particularised” in the FASC. These “overt acts” are consistent with, and indeed suggestive of, a purpose of Mr Leerdam of achieving success for the Minister in the AAT proceedings. They do not suggest that Mr Leerdam had any collateral purpose.

135 As pointed out by four members of the High Court in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, “the term ‘abuse of the process of the Court’ has been (and it still is) used in many senses” (at [1]). Their Honours distinguished the principles applicable to orders staying pending proceedings as abusive (with which that case and Williams v Spautz were concerned) from those underlying the torts of malicious prosecution and collateral abuse of process. Their Honours then quoted the passage from Williams v Spautz at 523 as to the centrality to the tort of abuse of process of the requirement of the collateral purpose (at [3]: see [130] above). They pointed out that that central requirement did not apply outside the area of tort. Whilst their Honours later pointed out that “what amounts to abuse of court process is insusceptible of a formulation comprising closed categories” (at [9] and see [14]), their Honours were at that point dealing with the principles applicable to the stay of proceedings. There is nothing in their Honours’ judgment (or in Williams v Spautz) which suggests that the requirement of a collateral purpose for the tort of abuse of process might be abrogated. Indeed, for the reasons given in [137] below, I consider that there are good reasons why such a development is unlikely to occur.

136 Whilst the proceedings under consideration in Williams v Spautz and Batistatos v RTA were not proceedings for damages for the tort of abuse of process and the comments made about that tort were therefore obiter, the statements were well-considered ones drawing on earlier authority. In my view, they identify principles which must be applied by this Court (see Farah Constructions Pty Ltd v Say-Dee Pty Ltd at [134] and [158]).

137 As pointed out above, Williams v Spautz was concerned with the grant of a stay to restrain the continuation of pending proceedings. This is an aspect of the Court’s control over its own process and does not involve, as the tort of abuse of process usually, if not always, does, a consideration of earlier completed proceedings. Where litigation hinges upon the outcome of earlier litigation, the law’s firmly established principle favouring the finality of litigation needs to be considered (see D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34] – [36]). If the allegation in the subsequent proceedings is that by the earlier proceedings the plaintiff in those proceedings obtained some collateral advantage to the detriment of the plaintiff in the second proceedings, the principle of finality is unlikely to be infringed because the second proceedings will not involve a relitigation of issues resolved in the first proceedings or an undermining of the earlier decision. However, if the tort of collateral abuse of process were co-extensive with the broad concept of abuse of process, complaint could be made about the means used to obtain the result in the earlier proceedings and the principle of finality would come into play. This is no doubt, one of the reasons why the tort of collateral abuse of process is, and should be, confined in the way that it is.

138 In my view therefore, the FASC does not allege facts which would, if proved, establish the tort of collateral abuse of process. As there is no indication from the material before the Court that the allegations may be able to be amended to plead a maintainable cause of action, the claim against the appellants that they have been guilty of the tort of collateral abuse of process should be summarily dismissed.

139 In light of this conclusion, it is unnecessary for me to deal with a further contention of the appellants that the tort is inapplicable to abuse occurring in the context of administrative as distinct from judicial proceedings.

Advocate’s Immunity

140 As I have taken the view that the allegations as to the torts of misfeasance in public office and abuse of process are not maintainable, the defence of advocate’s immunity raised by the appellants does not arise. Nevertheless, I make the following comments on the availability of that defence (see most recently Kuru v New South Wales [2008] HCA 26; (2008) 82 ALJR 1021 at [12]).

141 The appellants contended that if the causes of action alleged against them were otherwise maintainable, they were entitled to immunity from suit based upon the fact that s 60(c)(2) of the AAT Act renders applicable to advocates before the AAT the common law advocate’s immunity from suit in relation to his or her conduct of a case in court or for work done out of court which leads to a decision affecting the conduct of a case in court. The existence of that common law immunity was recently affirmed by the High Court in D’Orta-Ekenaike v Victoria Legal Aid.

142 Section 60(c)(2) is in the following terms:

“A barrister, solicitor or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.”

143 The issue which arose on the summary judgment/strike out application in relation to this defence was whether the immunity extends beyond immunity to claims in negligence, to immunity in relation to intentional torts, in particular the torts of misfeasance in public office and collateral abuse of process.

144 Having referred to D’Orta, Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543, Taylor v Serious Fraud Office [1999] 2 AC 177 and other authorities, the primary judge, in a passage which commented on the causes of action sued upon as well as the question of immunity, said:

“144 There is strength in the arguments of Mr Leerdam and Sparke Helmore based on the majority judgments in D’Orta which followed and developed what was said in Giannarelli and I am bound by those judgments. However, having regard to what was said in Taylor and the queries raised there and in the cases cited, it has not been authoritatively resolved whether the immunity applies in the case of the tort of misfeasance in a public office or that of collateral abuse of process committed during an administrative review. This case is unique as to its facts. There is, of course, the further question whether s 60(2) of the AAT Act governs the position in any event.

145 Counsel for Mr Leerdam and Sparke Helmore submitted that as any hearing of the plaintiff’s action would be long and costly bearing in mind that the Minister and the Commonwealth were parties and the legal position was tolerably clear, the Court should dismiss the proceedings as against Mr Leerdam and Sparke Helmore. The immunity contended for is that of Mr Leerdam and Sparke Helmore. Nevertheless, it would in my opinion be premature to resolve the matter in the absence of any indication from the Commonwealth as to what issues it proposes to raise and what evidence, if any, it proposes to lead as to who made the decision not to supply particulars and not tell the plaintiff the case which he had to meet and of the other matters earlier identified.

146 There are sufficient differences in the legal position to raise serious doubts as to the legal professional immunity. Administrative processes do not have the same legal finality as court processes and the same principles of incontrovertibility do not apply to administrative processes. An administrative process which can be varied is part of the structure of government but it is not part of the judicial arm of government.

145 In my view D’Orta is authority which this Court is bound to apply that as a matter of principle advocate’s immunity is capable of extending to intentional torts. However, the immunity only relates to the conduct of a case in court and to work done out of court which leads to a decision affecting the conduct of the case in court. On that ground the immunity will rarely if ever provide a defence to claims for damages for the commission of the torts of misfeasance in public office or collateral abuse of process, assuming that these torts are confined in the ways to which I have referred earlier.

146 The point is illustrated by analogy with the tort of malicious prosecution. The immunity does not apply to this tort (D’Orta at [99] per McHugh J). This is not because the tort is an intentional one but because its commission depends upon the knowledge and intent with which a prosecution is brought and maintained. Prima facie at least, the inquiry is not as to conduct of a case in court (or preparatory work affecting it) and the immunity defence is therefore inapplicable. The position is otherwise, for example, with an action founded on ”false and defamatory statements made maliciously in the course of judicial proceedings” to which advocate’s immunity (as well as that of a judge and witness) provides an answer (D’Orta at [99]).

147 Likewise, because the foundation of the tort of collateral abuse of process is the existence of a collateral purpose in commencing or maintaining proceedings, it would be unlikely that an action for damages for commission of that tort would be founded upon the conduct of a case in court (or preparatory work affecting it). Of course, if the views I have expressed as to the scope of the tort of collateral abuse of process were wrong and the tort extended, as Mr Noori contends, to conduct in court motivated in the way he alleges, the scope for the immunity defence would be much greater.

148 The rationale for the immunity identified by the High Court in D’Orta, namely, “the principle that controversies once resolved are not to be reopened except in a few narrowly defined circumstances” (at [45], see also [25]) is as applicable to intentional torts relating to conduct in court as it is to negligence. This principle was described as the “central justification” for the advocate’s immunity (at [45]).

149 Statements made in the plurality judgment in D’Orta indicate that the immunity is not confined to claims in negligence:

Giannarelli

“26 The second matter assumes, wrongly, that the duties might conflict. They do not; the duty to the court is paramount. But, more than that, the question of conflicting duties assumes that the only kind of case to be considered is one framed as a claim in negligence. That is not so. The question is whether there is an immunity from suit, not whether an advocate owes the client a duty of care.”

(b) After referring to the development of immunities from suit for witnesses, judges and advocates, the judgment referred to the fact that witness’s immunity applies even if the witness’s conduct was deliberate and malicious [39]. Their Honours did not suggest that advocate’s immunity is any different in that respect.

or otherwise

150 In Giannarelli v Wraith, Mason CJ and Dawson J both referred with approval to the decision in Munster v Lamb [1883] 11 QBD 588 which applied the principle of advocate’s immunity to statements made in court by counsel, even if made maliciously and without reasonable or probable cause (at 569, 595-6).

151 However it is difficult to be adamant about the application of advocate’s immunity to the tort of collateral abuse of process. This is illustrated by the House of Lords decision in Roy v Prior [1971] AC 470 where it was alleged that the defendant, when acting as solicitor for a party in earlier proceedings, had, for a collateral purpose, procured the issue of a subpoena to give evidence to the plaintiff doctor. The defendant had given evidence in the earlier proceedings in support of the application for the issue of the subpoena. It was held by the House of Lords that the subsequent proceedings for abuse of the process of the Court were not to be defeated by the fact that one step in the abuse involved the giving of evidence.

152 On this view, an application made in court by an advocate for the issue of a subpoena would, if made for a collateral purpose, be susceptible to an action for collateral abuse of process, with no immunity being applicable. It seems to me however that D’Orta provides support for a contrary view, that is, that the conduct would be covered by the immunity. An intermediate case could be imagined where the application for the subpoena was made through the court registry, outside a court hearing, but a consequential aspect, perhaps as to service of the subpoena, involved a hearing in court.

153 Further, Lord Hoffman in Taylor v Serious Fraud Office referred to English decisions which indicated to his mind that there was “some dispute over whether [the principle of immunity] applies to the emergent tort of abuse of public office” (at 215F).

154 No High Court decision deals directly with the availability of the immunity defence in relation to the torts of abuse of process and misfeasance in public office.

155 In these circumstances, like the primary judge, I take the view that there is insufficient certainty about the scope of the immunity to summarily dismiss or strike out the proceedings, so far as they relate to the appellants, upon the basis of the immunity defence. In any event, if I am wrong in the views I have taken as to scope of the tort of misfeasance in public office or that of collateral abuse of process, the precise ambit of those torts, as properly understood, would have to be considered in the context of the facts which are proved. Accordingly, I do not consider that it would be appropriate to summarily dismiss or strike out upon the basis of the immunity defence.

Orders

156 As I consider that the acts and omissions alleged by Mr Noori would not, if proved, establish either of the torts alleged against the appellants and that no reasonable prospect has been shown that further acts or omissions might be able to be alleged to make good either of the causes of action, the proceedings against the appellants should in my view be summarily dismissed.

157 Accordingly, the orders which I propose are:

(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.

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Citations

Leerdam v Noori [2009] NSWCA 90

Most Recent Citation

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129

Marino v Bello (No 3) [2022] NSWCA 181

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25

Statutory Material Cited

9

Northern Territory v Mengel [1995] HCA 65

Evda Nominees Pty Ltd v Victoria [1984] HCA 18

Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3

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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
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Crimes Prevention Act 1916 (NSW) Judiciary Act 1903 (Cth) Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Migration Act 1958 (Cth) Suitors' Fund Act 1951 (NSW) The Constitution of the Commonwealth of Australia 1951 Convention Relating to the Status of Refugees
CATEGORY:	Principal judgment
CASES CITED:	Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 B Johnson & Company (Builders) Limited v Minister of Health (1947) 177 LT 455 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Board of Education of Farmingdale Union Free School District v Farmingdale Classroom Teachers Association (1975) 38 NY 2nd 397; NYS 2d 635 Calveley v Chief Constable of Merseyside [1989] AC 1228 Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Dunlop v Woollahra Municipal Council [1982] AC 158 Emanuele v Hedley (Federal Court of Australia, 19 June 1998, unreported) Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241 Ex parte Kearney (1917) 17 SR NSW 578 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Garrett v Attorney General [1997] 2 NZLR 332 Gett v Tabet [2009] NSWCA 76 Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 Grainger v Hill and another (1837-8) 4 Bing (NC) 212; 132 ER 769 Grimwade v State of Victoria (1997) 90 A Crim R 526 Gulabrai v Hamer-Mathew (New South Wales Court of Appeal, 26 June 1997, unreported) Hamer-Mathew v Gulabrai (No 2) (1994) 35 NSWLR 92 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Henderson v McCafferty [2002] 1 Qd R 170 Henly v The Mayor and Burgesses of Lyme (1828) 5 Bing 91 Kuru v New South Wales [2008] HCA 26; (2008) 82 ALJR 1021 Munster v Lamb [1883] 111 QBD 588 Myers v Elman [1940] AC 282 Neilson & Anor v City of Swan [2006] WASCA 94; (2006) 147 LGERA 136 Noori v Leerdam [2008] NSWSC 515 Northern Territory v Mengel [1995] HCA 65; (1995) 185 CLR 307 P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366 PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 R v Boston [1923] HCA 59; (1923) 33 CLR 386 R v Bowdon [1996] 1 WLR 98 Rondel v Worsley [1969] 1 AC 191 Roy v Prior [1971] AC 470 Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 Sanders v Snell (No 2) [2003] FCAFC 150; (2003) 130 FCR 149 Society of Lloyd's v Henderson and others [2007] EWCA Civ 930; (2008) 1 WLR 2255 Spautz v Gibbs (1990) 21 NSWLR 230 Tahche v Cannon [2003] HCA Trans 524 (12 December 2003) Tampion v Anderson (No 2) [1973] VR 715 Taylor v Serious Fraud Office [1999] 2 AC 177 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911-2) 13 CLR 35 Wickstead v Browne [1992] NSWCA 272; (1992-3) 30 NSWLR 1 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
TEXTS CITED:	American Jurisprudence 2d Vol 1 s 21 R P Balkin and J L Davis, Law of Torts, 3rd ed, (2004) Butterworths Australia T Cockburn and M Thomas, "Personal liability of public officers in the tort of misfeasance in public office" (2001) Torts Law Journal Cordery's Law Relating to Solicitors 7th ed, (1981) Butterworths Halsbury's Laws of England, 4th ed, Vol 44(1) P D Finn "Public Officers: Some Personal Liabilities" (1977) 51 ALJ 313 P Keeton and W Prosser, Prosser and Keeton on the Law of Torts, 5th ed, (1984) West Pub Co
PARTIES:	Leonard Keith Leerdam (First Appellant) Sparke Helmore Lawyers (Second Appellant) Naqib Ahmed Noori (First Respondent) The Hon Philip Maxwell Ruddock MP (Second Respondent) Commonwealth of Australia (Third Respondent)
FILE NUMBER(S):	CA 40189/08
COUNSEL:	A Bell SC/P Horvath (First and Second Appellants) C Birch SC/J Hyde (First Respondent) R Pepper (Second and Third Respondents)
SOLICITORS:	DLA Phillips Fox (First and Second Appellants) Truman Hoyle Lawyers (First Respondent) Australian Government Solicitor (Second and Third Respondents)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20154/07
LOWER COURT JUDICIAL OFFICER:	Smart AJ
LOWER COURT DATE OF DECISION:	30 May 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Noori v Leerdam & 3 Ors [2008] NSWSC 515