Leerdam v Noori

Case [2009] NSWCA 90


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…

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Leerdam v Noori [2009] NSWCA 90
Case
[2009] NSWCA 90
Decision Date

CaseChat Overview and Summary

In *Leerdam v Noori*, the appellants sought to appeal orders of the primary judge that dismissed their notice of motion and awarded costs against them. The dispute concerned claims brought by the first respondent against the appellants, which included allegations of misfeasance in public office and collateral abuse of process. The appeal was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether a solicitor acting on behalf of a minister in Administrative Appeal Tribunal proceedings held a public office for the purposes of the tort of misfeasance in public office, and whether the tort of collateral abuse of process could be committed by a non-party to proceedings. The Court was also required to consider the scope of advocate's immunity from suit, specifically whether it extended to intentional torts such as misfeasance in public office and collateral abuse of process.

The Court of Appeal reasoned that the primary judge had erred in dismissing the appellants' notice of motion. It found that the appellants, as solicitors acting for a minister, did not hold a public office for the purposes of the tort of misfeasance in public office. Furthermore, the Court determined that the tort of collateral abuse of process was not capable of being committed by a non-party to proceedings in the circumstances alleged. The Court also considered the application of advocate's immunity, concluding that it did not preclude the claims against the appellants.

Consequently, the Court of Appeal allowed the appeal, set aside the orders made at first instance dismissing the appellants' notice of motion and awarding costs against them, and summarily dismissed the proceedings so far as they related to the appellants. The first respondent was ordered to pay the appellants' costs at first instance and on appeal.

Orders

Orders of the court

(a) Leave to appeal granted. (b) The appellants within seven days to file the amended notice of appeal provided by them to the Court. (c) Appeal allowed. (d) The orders made at first instance dismissing the appellants' notice of motion dated 8 October 2007 and as to the costs of that motion be set aside. (e) The proceedings so far as they relate to the appellants be summarily dismissed. (f) The first respondent to pay the costs at first instance of the proceedings against the appellants, including the costs of the appellants' notice of motion filed on 8 October 2007. (g) The first respondent to pay the appellants' costs of the application for leave to appeal and of the appeal. (h) The first respondent to have a certificate under the Suitors' Fund Act 1951, if qualified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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