Noori v Leerdam - [2008] NSWSC 515

No judgment structure available for this case.

CITATION: Noori v Leerdam & 3 Ors [2008] NSWSC 515

HEARING DATE(S): 26 and 27 February 2008

JUDGMENT DATE :
30 May 2008

JUDGMENT OF: Smart AJ at 1

DECISION: Motion of 1st and 2nd defendants dismissed

CATCHWORDS: Availablility of developing torts of misfeasance in public office and collateral abuse of process as to administrative law review by AAT - conduct of solicitor and Minister - whether on facts pleaded there should be summary dismissal of proceedings or striking out of Further Amended Statement of Claim - Claim for legal professional immunity and its basis and whether it applies to these torts

LEGISLATION CITED: AAT Act 1975
Migration Act 1958 (Cth)
Queensland Criminal Code

CATEGORY: Principal judgment

CASES CITED: Arthur J S Hall & Co v Simons [2002] 1 AC 615
Batistatos v RTA (NSW) (2006) 226 CLR 256 at 262-263.
Butler v Simmonds Crowley and Galvin [2000] 2 Qd R 252
Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240
Cannon v Tahche (2002) 5 VR 317
Giannarelli v Wraith (1988) 165 CLR 543
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92
Henly v The Mayor of Lyme 130 ER 995 at 1001
HunterTaylor v Serious Fraud Office [1999] 2 AC 177 at 215
Hunter v Chief Constable of West Midlands 1982 AC 529 at 536
Lux Gulabrai v Karl Hamer-Mathew (unrep NSWCA. 26 June 1997)
Metall v Rohstoff (1990) 1 QB at 469
Neilson & Anor v City of Swan [2006] WASC 94; 147 LGERA 136.
Northern Territory of Australia and Others v Mengel & Ors (1994-1995) 185 CLR 307.
R v Bowden [1996] 1 WLR 98
R v Kneebone (1999) 47 NSWLR 450
R v McCann [1998] 2 Qd R56
R v Whitaker 1914 3 KB 283
Ridgeway v The Queen (1995) 184 CLR 19 at 74-75
Roberts v Bass (2002) 194 CLR 161
Rogers v The Queen (1994) 181 CLR 251 at 286
SA v O’Shea (1978) 163 CLR 378
Sanders v Snell (1998) 196 CLR 329 at 345.
Spautz v Gibbs (1990) 21 NSWLR 230
Tampion v Anderson [1973] VR 715 at 720
The King v Boston (1923) 33 CLR 386
Three Rivers (No 3) 2001 2 All ER 513 at [42]
Three Rivers District Council & Ors v Bank of England 2000 2 WLR 1220
Whitehorn v The King (1983) 152 CLR 657
Wickstead v Browne (1992) 30 NSWLR 1 at 11F
Williams v Spautz (1991-2) 174 CLR 529

FILE NUMBER(S): SC 20154/2007

COUNSEL: Dr A Bell & Ms A Horvath (applicants - D1 & D2)
Dr C Birch & Mr J Hyde (respondent - pltf)

SOLICITORS: DLA Phillips Fox (D1 & D2)
Truman Hoyle Lawyers (Pltf)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Friday, 30 May 2008
20154/2007

NAQIB AHMAD NOORI

v

Leonard Keith LEERDAM, SPARKE HELMORE LAWYERS,
Philip Maxwell RUDDOCK and COMMONWEALTH OF AUSTRALIA

JUDGMENT

1 This case arises out of the plaintiff, an Afghan refugee, being kept in immigration detention for four years longer than should have occurred as a result of the then Minister for Immigration and his solicitor, Mr Leonard Keith Leerdam in the course of a review by the Administrative Appeals Tribunal (“AAT”) not supplying adequate particulars, as ordered, of the plaintiff’s alleged disentitling conduct for a Protection Visa so he could meet the case against him. There were the further complications of the plaintiff and his legal representative being excluded from the hearing before the AAT while an attempt was made by Mr Leerdam to explain why particulars ordered by the Tribunal had not been given. Upon their return they were not told what had transpired. The AAT indicated that it did not propose to pursue the supply of particulars. At no stage were the plaintiff and his legal representatives given a summary of the evidence led in their absence nor alerted to the considerable weaknesses in the identification evidence led against him.

2 By Notice of Motion filed on 8 October 2007 Mr Leerdam and Sparke Helmore seek orders under UCPR 13.4 that these proceedings be dismissed as against them. In the alternative they seek orders under UCPR 14.28(1) that the Amended Statement of Claim filed on 19 September 2007 be struck out as against them. As a result of the Further Amended Statement of Claim (FAS) filed in Court on 27 February 2008, by leave, the relief sought should be treated as amended accordingly. Mr Ruddock and the Commonwealth did not participate in these proceedings. The plaintiff’s alleged causes of action are misfeasance in a public office and abuse of process. Mr Leerdam and Sparke Helmore claim immunity from suit. Mr Leerdam acted as the solicitor for and appeared for the Minister in migration proceedings for a review brought by the plaintiff before the AAT and Sparke Helmore was his employer. The proceedings in the AAT have a sorry history with that and the whole course of what took place giving rise to these proceedings.

Background

3 The plaintiff and his family arrived in Sydney with a tourist visa on 30 September 1999. That visa was cancelled on the plaintiff applying for political asylum. He was placed in detention at the Villawood Immigration Centre where he remained until his release pursuant to a Protection Visa on 31 January 2006. Thus he spent over six years in detention. The plaintiff had had a career in the Ministry of Foreign Affairs of Afghanistan. On 6 October 1999 the plaintiff applied for a Protection Visa pursuant to s 195 of the Migration Act 1958 (Cth). The Minister at all times during the plaintiff’s detention had power to grant to the plaintiff a Protection Visa under s 195A of the Migration Act. See also ss 29, 36 and 65 of that Act. The plaintiff’s wife and children were granted Protection Visas.

4 Mr Ruddock was the Minister for Immigration and Cultural Affairs from 11 March 1996 to 26 November 2001 and the Minister for Immigration and Indigenous Affairs from 26 November 2001 to 7 October 2003. The Minister was alleged to be a public officer responsible for carrying out functions relating to the coming into and presence in Australia of non citizens, including their detention and identification as well as the consideration of applications for visas under the provisions of the Migration Act 1958 (Cth) and also gave directions to employees or officers of his department as well as relevant service providers and agents.

5 It was alleged that:

(a) about October 1999 Nasiba Akram, a member of the Afghan community in Sydney forwarded to the Minister’s delegate hearsay allegations that the plaintiff had engaged in war crimes and crimes against humanity in Afghanistan; and

(b) she exerted pressure on the Minister by writing directly to him and by way of comment to the media concerning the plaintiff and subsequent to that provided information to the Minister’s solicitor in the course of preparing the case against the plaintiff; and

(c) Nasiba Akram, motivated by malice, believed that anyone sharing the ethnic descent of the plaintiff 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.

6 On 9 August 2000 the Minister by his delegate notified the plaintiff that he was not entitled to the protection of Australia as the delegate found that there were serious reasons for considering that the plaintiff was engaged in disentitling conduct within the meaning of Article 1F of the 1951 Convention relating to the Status of Refugees.

7 On 29 August 2000 the plaintiff applied pursuant to s 500(1)(c) of the Migration Act to the AAT to have the decision of the Minister’s delegate reviewed. That provision provides that applications may be made to the AAT for review of a decision to refuse to grant a Protection Visa, relying on Article 1F of the Refugees Convention.

8 It was alleged that the Minister, or officers employed by his department and under his direction appointed Mr Leerdam as his solicitor for the AAT proceedings. Mr Leerdam and/or Sparke Helmore was paid a fee by the Commonwealth to represent the Minister.

9 It was alleged in para 19A of the FAS that Mr Leerdam exercised a power of a public nature in the following respects:

(a) he formulated and presented the case to the AAT;
(b) he determined what evidence, materials and particulars would be communicated to the plaintiff and 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.

10 It was alleged or emerges that:

(b) On 11 April 2001 Deputy President Wright of the AAT made orders that certain annexures to that affidavit and other materials be kept confidential and that they not be made available to either the plaintiff or his legal advisers.

(c) By letter dated 26 April 2001 the plaintiff’s solicitor wrote to Mr 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 under Article 1F

(d) On 17 May 2001 Deputy President Wright of the AAT ordered that the Minister provide full particulars of the precise crimes relied upon as disentitling conduct under Article 1F including “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 the [plaintiff] alleged to constitute the crime”

by 25 May 2001

(e) The Minister, or officers (presently unknown) in his department or in the alternative Mr Leerdam acting without instructions did not provide any or any sufficient particulars of the disentitling conduct as ordered 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 Mr Leerdam and could have been provided prior to the commencement of the first substantive hearing before the AAT;
(f) The Minister and/or Mr Leerdam did not apply to have the AAT’s orders of 17 May 2001 varied or set aside;

(g) 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 Mr Leerdam and could have been provided;

(h) On 16 August 2001 the plaintiff’s solicitor referred to the existence of confidential material and he and the plaintiff not getting to know any of it. Deputy President Wright stated that when the particulars were supplied he thought that more factual material would be supplied in a way which would not have breached the confidentiality aspect (of that material). Mr Leerdam stated that it was hard for him to make detailed submissions on the point. The Deputy President asked the plaintiff and his solicitor to remain outside while the question of particulars was dealt with. They remained outside for 25 minutes. The steps laid down pursuant to s 35 of the AAT Act, for a hearing at which neither the plaintiff nor his solicitor were present were not taken. (From paras 51-59 of the judgment of the Full Court of the Federal Court part of what took place appears). In the FAS it is alleged that either on the instructions of the Minister or an unknown officer or in the alternative acting without instructions Mr Leerdam asked for and had a hearing of 25 minutes, during which the plaintiff and his legal advisers were excluded, as to the provision of particulars. At the conclusion of that hearing Deputy President Wright declined to make any further order for the provision of particulars but did not revoke the orders previously made.

(j) During the AAT hearing Mr Leerdam applied to have certain evidence taken in the absence of the plaintiff and his solicitor. Mr Leerdam told the AAT that harm would ensue if this course was not followed and succeeded in his application. No sufficient particulars (or summary) of the evidence so taken were provided to the plaintiff prior to the end of the AAT hearing on 17 August 2001.

(k) 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.

(l) On 30 August 2002 the plaintiff applied to the High Court of Australia to have the decision of the AAT reviewed on the basis that he was denied procedural fairness. The matter was remitted to the Federal Court on 6 February 2003.

(m) On 30 September 2003 a single judge of the Federal Court dismissed the plaintiff’s application.

(n) On 26 March 2004 the Full Court of the Federal Court found that the AAT had erred in failing to provide the plaintiff with procedural fairness. It quashed the order of the AAT of 12 October 2001 and required the Tribunal to rehear and determine according to law the plaintiff’s application for review of the decision of the Minister’s delegate. The Full Federal Court held that these four grounds of denial of procedural fairness had been made good:-

(i) failing to require the Minister to provide proper particulars of the allegations made against the plaintiff;
(ii) excluding the plaintiff and his legal representative from the 25 minute discussion on 16 August 2001;

(iii) failing to give the plaintiff notice of the identification evidence upon which the Deputy President relied; and

(iv) failing to inform the plaintiff that allegations had been made about his conduct at Sederat in Kabul in 1989. (The affidavit evidence regarding the availability of evidence from the appellant’s sister, wife and members of her family was relevant to this ground).

(The plaintiff did not complain in the Federal Court of the confidentiality orders as such nor of evidence being received confidentially in the AAT).

(o) During 2004 adequate particulars of the disentitling conduct and the identification evidence were provided to the plaintiff in a piecemeal fashion so that by the commencement of the rehearing before Deputy President Walker on 28 February 2005, the plaintiff had been provided with adequate particulars of the alleged disentitling conduct, all of which were available prior to the commencement of the substantive hearing before Deputy President Wright.
(p) A rehearing took place before Deputy President Walker of the AAT over 16 days between 28 February 2005 and 26 August 2005. Deputy President Walker delivered a decision on 14 October 2005 in which it was found that there were no serious reasons for considering that the plaintiff had engaged in any disentitling conduct within the terms of Article 1F.

(q) On 31 January 2006 the plaintiff was issued a Protection Visa pursuant to s 65 of the Migration Act and released from the Villawood Detention Centre.

(r) Had the plaintiff been provided with adequate particulars of the case against him he would have been in a position to lead the evidence he led in the hearing before the AAT in 2005 and he would have been granted a Protection Visa 4 years earlier.

(Mr Leerdam and Sparke Helmore contended that there was no adequate basis for the allegation that Mr Leerdam had acted without instructions in any of the several instances in which it was so alleged in the alternative)

11 Under UCPR 14.7 subject to Parts 6, 14 and 15 a party’s pleading must contain only a brief summary of the material facts on which the party relies and not evidence . A pleading may raise any point (UCPR 14.19). UCPR 15.1 requires a pleading to give such particulars of any claim as are necessary to enable the opposite party to identify the case to be met.

12 It is against this background that the plaintiff’s causes of action and the claim for immunity fall to be considered.

Claim for Misfeasance in Public Office

13 It was alleged that the Minister was a public officer. See matters summarised above. It was alleged that the unknown officers of the Minister involved in handling the AAT review were public officers. See the matters summarised above (and see paras 36 and 37 of FAS).

14 It was alleged that Mr Leerdam was a public officer. See the matters summarised above (including receipt of directions from the Minister either directly or through his employees or officers of his Department, appointment of Mr Leerdam as the Minister’s solicitor for the AAT proceedings either by the Minister or officers employed by his Department and under his direction, Mr Leerdam’s conduct and directions as to the proceedings and Mr Leerdam and/or Sparke Helmore being paid a fee). Reliance was also placed on the extent to which Mr Leerdam was discharging and/or carrying out a public duty in participating in a review before the AAT on behalf of the Minister pursuant to s 500(1)(c) of the Migration Act and in carrying out the actions summarised above. (See paras 38 and 7, 15 and 19 of FAS).

15 The Minister exercised a continuing power to detain the plaintiff pursuant to ss 176, 178 and 189 of the Migration Act. Notwithstanding the exercise of that power the Minister and/or the officers and/or Mr Leerdam declined to provide the plaintiff with the particulars of the alleged disentitling conduct and notwithstanding orders made by Deputy President Wright that such particulars be provided. (FAS paras 38, 38A and 38B)

16 The plaintiff alleged that by exercising the power to detain and by failing to provide the particulars as ordered and sought by the plaintiff the Minister and/or the officers and/or Mr 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 were given that to the best of the plaintiff’s knowledge and belief -

(a) the Minister decided to detain the plaintiff indefinitely following a demand by Nasiba Akram that the plaintiff not be granted a Protection Visa

(b) 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 to be granted

(c) prior to the commencement of the substantive hearing before the AAT (Deputy President Wright) the Minister directed Mr Leerdam that the plaintiff not be given particulars of the alleged disentitling conduct notwithstanding the orders of Deputy President Wright of 17 May 2001

(d) prior to the hearing before the AAT (Deputy President Wright) Mr Leerdam received both written and verbal requests from Nasiba Akram that the plaintiff ought not be granted a Protection Visa

(e) Mr 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 of Deputy President Wright of 17 May 2001

(As to sub paras (a) to (d) it was stated that further particulars would be provided following discovery. See FAS para 38C)

17 The plaintiff alleged in the alternative to the matters alleged in the preceding para (FAS, para 38C) the Minister and/or the Officers and/or Mr Leerdam acting either alone or on instructions from the 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 (FAS, para 38D).

18 The plaintiff alleged further and in the alternative that the Minister and/or the Officers and/or Mr Leerdam knew or had a reckless disregard for the fact that as a consequence of the failure to provide the particulars ordered on 17 May 2001 and subsequently sought the AAT was likely to make an incorrect decision and affirm the decision of the Minister’s Delegate made on 9 August 2000.

19 The plaintiff also relied upon some of the matters pleaded under the heading Abuse of Process in the FAS. At the heart of the claim of misfeasance in a public office was the non supply of particulars ordered by Deputy President Wright. This error led to the plaintiff not being able to meet the case against him. Once the particulars were supplied he was able to meet the case against him. The upshot was that Deputy President Walker held that there were no serious reasons for considering that the plaintiff had engaged in any disentitling conduct within the terms of Article 1F. Hence the plaintiff’s claim that he was kept in detention for 4 years longer than could be justified. That is very serious.

Abuse of Process

20 This is pleaded in paragraphs 39-47 of the FAS. The plaintiff alleged that without any proper independent assessment of the allegations of Nasiba Akram, Mr Leerdam and/or the Minster and/or the officers and/or Mr Leerdam acting without instruction promulgated and sought to give effect to her allegations against the plaintiff, namely that he was a war criminal, was responsible for the torture and killing of many people and was the head of a secret security agency, Khad and responsible for the torture and killing of many people.

21 The plaintiff alleged that:

(b) The Minister and/or Mr Leerdam were recklessly indifferent as to whether the wishes [or representations] of Nasiba Akram were motivated by her belief that anyone sharing the ethnic descent of the plaintiff and who had been associated with the Soviet regime in power in Afghanistan from 1979 to 1989 ought to be refused a protection visa and deported, and recklessly indifferent to whether they furthered her malicious motive, namely her belief that anyone sharing the ethnic descent of the plaintiff and holding political views sympathetic to the Soviet regime in power from 1979 to 1989 in Afghanistan ought to be denied a protection visa and be detained and deported from Australia by acting on the complaint made by her.

22 The plaintiff asserted that as to the hearing before Deputy President Wright the Minister and/or Officers and/or Mr Leerdam were obliged to:

(a) take reasonable steps necessary to ensure proper enquiry into the allegations that the plaintiff had committed disentitling conduct pursuant to Article IF;

(b) comply with any orders given by Deputy President Wright;

(c) in the secret hearing fully and frankly disclose to the AAT all material whether adverse to the Minister’s case or otherwise;

(d) appraise the AAT of the weakness of the identification evidence against the plaintiff while in the secret hearing (effectively on an ex-parte basis), namely that neither asserted eyewitness relied upon by the Minister was able to identify the plaintiff in any probative fashion;

(e) appraise the AAT in the secret hearing that the plaintiff had stated in a record of interview that he was not in Kunduz for a substantial part of the time (some 6 months) when it was alleged by the Minister that he had been torturing and killing civilians and that this information had been volunteered by the plaintiff in the absence of his knowing that there were allegations against him in this time frame;

(f) inform and/or appraise the AAT of all material relevant to the secret hearing with such disclosure to include as a minimum particulars of the strength or otherwise of the identification evidence against the plaintiff, details of any information in the knowledge or possession of the Minister or his representatives that was inconsistent with the Minister’s case including any evidence that the plaintiff was not present at a particular time and/or place in which the disentitling conduct was said to have occurred.

23 The plaintiff asserted that the Minister, Officers and Mr Leerdam failed to properly and adequately carry out the acts and obligations mentioned in the preceding paragraph in that -

(a) they failed to provide adequate particulars as ordered;
(b) they insisted that certain evidence be given in secret;
(c) they insisted on a secret 25 minute hearing (as to the provision of particulars); and
(d) they refused to provide a summary of the evidence given in secret.

The word “insisted” may be putting the matter too strongly. Mr Leerdam told the AAT as to the evidence that harm would ensue if it were not heard in secret. He expressed difficulty in dealing with the question of particulars in the presence of the plaintiff and his legal representatives.

24 The plaintiff asserted that there was no reasonable basis for

(a) the failure to provide particulars;

(b) the evidence to be given in secret;

(c) the secret 25 minute hearing;

(d) not providing a summary of the secret evidence; and

(e) not disclosing to the AAT the matters mentioned in para 40 (c) – (f) in the FAS and reproduced above

and that such conduct was wrongful and improper.

25 I interpolate that the Full Federal Court held that the failure to require the Minister to provide proper particulars of the allegations made against the plaintiff and the failure to inform the plaintiff that allegations had been made about his conduct at Sederat in Kabul in 1989 each amounted to a breach of procedural fairness as did excluding the plaintiff and his legal representative from the 25 minute discussion on 16 August 2001. The Full Federal Court at [152] stated that it could not accept that it would ever be necessary to withhold from a person a summary of the features of the identification evidence that incline the tribunal of fact to think that the person is the person under consideration. A summary of evidence regarding physical appearance need not give any clue as to the identifying witness’ identity The Full Court stressed the critical importance of a tribunal which has made a confidentiality order that restricts a party’s access to relevant information remaining conscious of the ongoing effect of such an order and constantly re-assessing how procedural fairness may nonetheless be provided.

26 The problems mentioned are not new. In New South Wales it has been the practice for many years for counsel appearing for a Minister or Government Instrumentality including the Police Commissioner on a claim for public interest immunity to adduce the requisite evidence, usually by an open affidavit and on occasions by a confidential affidavit to which are exhibited any confidential documents. As a matter of course an informative summary which does not reveal the details alleged to be confidential is provided by the legal representatives for the person or body advancing the claim so that the opposing party knows the case being made against it and is able to argue the matter. The drafting of such a summary requires considerable care on the part of counsel or the instructing solicitor for a Minister or Instrumentality. On occasions, on signed undertakings as to non-disclosure, counsel for the party issuing the subpoena is granted access to the subpoenaed confidential material.

27 The plaintiff alleged that Mr Leerdam and/or the Minister and/or the Officers failed to have regard to the improper purpose motivating Nasiba Akram as pleaded in paras 9, 10, 11 and 39 of the FAS and reproduced above and thereby engaged in an abuse of the process of the AAT.

28 The plaintiff alleged that Mr 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;

29 The plaintiff relied on further particulars, namely, that as at 17 May 2001 Mr Leerdam knew or should have known that the particulars would not be supplied and failed to raise this matter with the AAT and that following the failure to provide the particulars ordered Mr Leerdam failed to seek to have the orders of 17 May 2001 varied or the earlier confidentiality orders varied so that proper and sufficient particulars could be provided in accordance with the terms of the orders of 17 May 2001. It was alleged that the matters pleaded in paras 39-44B of the FAS and summarised in paras 20-28 hereof were committed in such a fashion as to constitute an abuse of process.

Misfeasance in Public Office

30 Mr Leerdam and Sparke Helmore contended in these overlapping and inter-related submissions that

(a) Mr Leerdam was not a public officer and did not hold a public office.
(b) He was not exercising a power of a public nature. What Mr Leerdam was doing in acting and appearing for the Minister in the AAT proceedings did not involve Mr Leerdam exercising powers attached to a public office. He was discharging his duty as the legal representative of the Minister to his client and the Tribunal. Thus the powers which Mr Leerdam was alleged to be exercising in para 19A of the FAS (and summarised above) were not powers at all. Merely because a person may receive instructions or directions from a public officer does not make the recipient of such instructions a public officer. The formulation of a case, including the provisions of particulars and the assessment of what evidence etc would be deployed in respect of a case do not involve the exercise of any public power but are the consequences of a legal practitioner taking steps pursuant to his or her private retainer with a client to conduct that client’s case.

(c) The present case is closely analogous to the decision of the Victorian Court of Appeal (VCA) in Cannon v Tahche (2002) 5 VR 317 so far as it related to the prosecutor, a barrister at the private Bar and the instructing solicitor, an employee of the Director of Public Prosecutions. In that case the plaintiff had been convicted of rape and his conviction was quashed after evidence came to light that the complainant had fabricated similar allegations. That information was allegedly deliberately not disclosed to the plaintiff in that case. Later a nolle prosequi was entered by the DPP as to the rape charge. It was held that neither the barrister nor the solicitor had committed the tort of misfeasance in a public office.

(d) The essence of the tort involved the misuse of a relevant power which is an incident of a public office; an office cannot be characterised as a public office for the purpose of the tort if no relevant power is attached to it as was the case here.

(e) There are decisions in which Courts have identified a public office by reference to the public duties that its holder is required to discharge and it has been suggested that a public office may be identified by reference to the trappings of the office in question and other like matters. However, as an essential element of the tort is the misuse by the holder of the office of a relevant power attached to it, it must follow that the elements of the tort are not sufficiently established unless there is a relevant power attached to the office in question. Having established that the office is a public office for the purposes of the tort, it would be unnecessary for the plaintiff to rely on the trappings or other criteria of a public office. These submissions closely followed Cannon v Tahche at 337-339.

(f) Not every position in which the occupier is required to perform a function in which the public has an interest is necessarily a public office for the purposes of the tort. Hence the public duty criterion will not in every case be an appropriate guide as to whether the position in question is a public office: Cannon v Tahche at 339.

(g) Mr Leerdam did not in his role as the solicitor acting for and appearing for the Minister in the AAT proceedings exercise any relevant power but performed a function.

(h) This tort should be closely confined.

31 The plaintiff made these overlapping and inter-related submissions:

Henly

Mengel

Migration Act

SA v O’Shea

(c) Cannon v Tahche should not be followed because:

(ii) The failure to pass information to the defence was dealt with and characterised by the VCA in terms only relevant to the role of a prosecutor in a criminal trial; and

(iii) Although there may be a superficial similarity between the conduct in Cannon v Tahche, namely not giving information to the accused, and the complaints in the present case namely denial of particulars, denial of a summary of evidence, applications to preserve confidentiality and participating in confidential hearings, the legal differences are substantial; and

(iv) Mr Leerdam was participating in an administrative enquiry in which he was acting as agent for the decision maker whose decision he was seeking to uphold and the plaintiff was not protected by the rules of evidence or any of the procedural checks or balances of a criminal trial and the standard of proof was not so exacting; and

(v) The reasoning in Cannon v Tahche is not addressed to the present case. The approach of the VCA that an essential element of the tort of misfeasance in public office was abuse of a relevant power was too narrow a view of that tort. It sufficed that Mr Leerdam, on behalf of the Minister proceeded with the conduct of the case, including the production of evidence and making submissions despite not having supplied the particulars which had been ordered.

Sanders v Snell

32 In developing his submissions counsel for the plaintiff relied on the statutory background. If a person in mainland Australia is an unlawful non-citizen, ie, does not have a formal visa, that person has to be placed in detention and, in practical terms, that person’s release depends on obtaining some form of visa: s 189 of Migration Act. A new system had been established whereby a person is placed in detention and able to be released only after a specified course of administrative action. An overly narrow view of the two torts of misfeasance in public office and abuse of process should not be taken. The new system contrasted sharply with the traditional ways of depriving a person of his liberty. The administrative system established permitted issues of grave and wide ranging misconduct to be raised when evidence could be taken in the absence of the applicant for a visa and his solicitor. The result was the refusal of a visa, possible deportation and further detention rather than a lengthy gaol term and a criminal conviction. This case demonstrates that the detention under the Migration Act may last for many years.

33 Counsel for the plaintiff referred to these features, inter alia, of the AAT proceedings -

(a) The lack of adequate particulars – the plaintiff was alleged to have been engaged in conduct that constituted war crimes and crimes against humanity after 1986 in Afghanistan. There was mention of Kunduz and Sederat in Kabul. Counsel complained that the plaintiff was not otherwise told what he was alleged to have done, simply “that some period after 1986 and prior to his departure from that country somewhere in that country at some time or other he had committed the acts alleged and those acts were only in those very general terms”.

(b) At the start of the substantive hearing on 23 July 2001 and subsequently the solicitor for the plaintiff complained that the particulars ordered had not been supplied and that the plaintiff did not know what case he had to meet.

(c) The plaintiff was not given a summary of what occurred after he and his solicitor left the hearing room at the AAT’s request on 16 August 2001. At [47] of his judgment Emmett J sets out the Deputy President’s statement on the return of the plaintiff and his solicitor that the discussion he had had in their absence [with Mr Leerdam] had clarified his mind to some extent and that he did not see the need to pursue the question [of the supply of particulars].

34 The plaintiff’s case in the FAS that Mr Leerdam was a public officer was based on him being the agent of the Minister for the purpose of complying with the order for particulars and Mr Leerdam actually undertaking the task. There was a substantial failure to comply with the Order for Particulars and this was one of the main reasons why the AAT proceedings were set aside. The plaintiff also relied on Mr Leerdam or Sparke Helmore being paid a fee out of consolidated revenue.

35 This was not a case where it was impossible to provide the particulars ordered. They were supplied prior to the second Tribunal hearing commencing. Although asked, Mr Leerdam has not stated, and was not bound to state, whether prior to the first AAT hearing the particulars were not supplied pursuant to a firm instruction from the Minister or the Department or Departmental officers not to reveal them or whether he exercised a discretion in the conduct of the case not to give them. A choice was made, whatever the reason.

36 The plaintiff referred to evidence taken from two witnesses in his absence and that of his solicitor. One witness was personally present. The evidence of the second witness was taken by telephone from an international (overseas) destination. The plaintiff was not given a summary of the evidence of these two witnesses. The AAT’s reasons of 12 October 2001 contain a summary of that evidence. It was important as it went to identification. I interpolate that if the summary is a good guide, the evidence required testing. At [94] – [97] of the Full Court judgment there is a précis of evidence that could have been led to rebut the identification evidence if the gist of it had been known.

37 Counsel for the plaintiff submitted that on reading the extracts of the transcript set out in the judgments, Mr Leerdam appeared to be putting submissions as to particulars and the confidential evidence on the basis of what seemed fit to him.

38 The plaintiff submitted that the purpose of the tort was to ensure a remedy in circumstances where someone who is performing an administrative function and owes a duty has nevertheless acted with the requisite mental element and caused harm. While the question must be resolved whether that person was a public officer, the category of public officer should not be defined so narrowly or artificially that it leaves any large class of situations where someone has exercised an administrative power or fulfilled an administrative duty with the requisite mental element yet no remedy exists. The plaintiff accepted that the mental element of the tort (as explained by Brennan J in Mengel, infra)was important because it was the key control preventing the tort applying in respect of too broad a range of administrative actions.

39 Proceedings before the AAT are not adversary proceedings in the strictest sense. Section 33(1AA) provides:

“In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceedings.”

40 Consideration of the tort of misfeasance in public office begins with Northern Territory of Australia and Others v Mengel & Ors (1994-1995) 185 CLR 307. At 345 the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh stated (citations omitted):

“It was recognised as recently as 1973 that the precise limits of the tort of misfeasance in public office were then undefined. In important respects, that is still true. However, the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.”

41 At 347 the joint judgment pointed out that although the tort is the tort of a public officer he or she is liable personally and that, unless there is de facto authority there will ordinarily only be personal liability and that principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. The joint judgment continued, “For present purposes we include in that concept acts which are calculated in the ordinary course to cause harm … or which are done with reckless indifference to the harm that is likely to ensue …”. I doubt if this is a case where there would only be personal liability in the sense that the Commonwealth has been sued.

42 The plaintiff relied on the judgment of Brennan J in Mengel at 355 where, after pointing out that the tort was well established, he commented that less clearly established were the principles which define the liability imposed on a public officer who, by use of his position or power, causes loss to another. Brennan J continued (citations omitted):

Henly

v

Mayor of Lyme:

‘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.’

Henly v The Mayor of Lyme

43 The plaintiff submitted that Brennan J, in his return to one of the earliest authorities, considered a person to be a public officer if he took a reward (i.e., was paid and received a fee) for the discharge of a public duty. It was submitted that both conditions were satisfied in the present case and pleaded. Further, in Henly there was the obligation or duty to maintain the sea wall. The duty was regarded as a public duty. Brennan J compared Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240 where Lord Bridge after declining to define the precise limits of the tort of misfeasance in public office said that it must at least involve an act done in the exercise or purported exercise by the public officer of some power or authority with which he is clothed by virtue of the office and which is done in bad faith or (possibly) without reasonable cause.

44 Subsequently at 357 Brennan J stated that the mental element in this tort is satisfied

“when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury”

Brennan J also included if the officer was recklessly indifferent as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct was calculated to produce.

45 Brennan J continued at 357:

“The state of mind relates to the character of the conduct in which the public officer is engaged - whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury. In my opinion, there is no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty.”

46 A little later Brennan J propounded what might be described as an over-arching test:

“It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff.”

47 At 370 Deane J said that the elements of the tort of misfeasance in public office, stated in summary form are:

(i) an invalid or unauthorised act;

(ii) done maliciously (using that word in an expansive sense);

(iii) by a public officer;

(iv) in the purported discharge of his or her public duties;

(v) which causes loss or harm to the plaintiff.

Deane J in recognising that this summary statement would require some refinement referred to an invalid or unauthorised act by a public officer in the purported discharge of his or her public duties.

48 In Sanders v Snell at 345 the majority judgment pointed out that for the purposes of deciding Mengel, the majority considered it sufficient to proceed on the basis that the tort requires an act which the public official knows is beyond power and which involves a foreseeable risk of harm. Neither the majority judgment in Mengel nor that in Sanders v Snell gave close consideration to when a person holds a public office. At 345 the majority judgment in Snell observed that misfeasance in public office is concerned with performance of public duties.

49 In Mengel the inspectors imposed restrictions upon the movement of cattle as a result of a substantial number testing positive to brucellosis. The inspectors had no power to impose restrictions on the movement of cattle although they believed that they had that power. It did not seem to be in issue that the two inspectors held a public office. The majority raised the issue at 340 that the plaintiff must be 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 and referred to Tampion v Anderson [1973] VR 715 at 720. That issue did not appear to be resolved. Brennan J at 357 thought that there was no additional element which requires the identification of the plaintiff as a member of a class to whom the public officer owes a particular duty. He had regard to the state of mind and whether it was naturally adapted in the circumstances to produce injury.

50 The leading English authority dealing with the tort of misfeasance in public office is Three Rivers District Council & Ors v Bank of England 2000 2 WLR 1220. Lord Steyn in considering the ingredients of the tort of misfeasance in public office wrote at 1230 that the defendant must be a public officer and “It is the office in a relatively wide sense on which everything depends.” It was common ground that the Bank satisfied that requirement. The Bank of England had principal responsibility for supervising banking activities in the United Kingdom. BCCI, a licensed deposit taker, and its associated companies collapsed with huge deficiencies. The plaintiffs alleged that the Bank was liable to them for misfeasance in public office in that it had either wrongly granted a licence to BCCI or had failed to revoke that licence when it knew, believed or suspected that BCCI would probably collapse without being rescued. After the delivery of the judgment just mentioned which considered some of the elements of the tort of misfeasance in public office the plaintiffs delivered further particulars. It was held by majority in Three Rivers DC & Ors v Bank of England (No 3) [2001]2 All ER 513 that the facts pleaded by the depositors in their fresh pleadings were capable of meeting the requirements of the tort.

51 Lord Hobhouse at 1267-8 in the earlier decision remarked:

“The tort, concerning as it does the acts of those vested with governmental authority and the exercise of executive powers, has developed over the centuries as circumstances have changed. Terminology still tends to be used which is of little assistance to anyone not familiar with the legal history. The use of the word ‘malice’ also causes confusion both as to its meaning in relation to this tort and the role it has in the analysis of the tort. The particular elements emphasised as being of the essence of the tort have varied from time to time. There has been little consistency of language.”

At 1268 Lord Hobhouse held that “the holder of a public office” is a broad concept.

52 Lord Millet said that the tort can be committed only by a public official (1273). Lord Hope (1236) expressed his agreement with what Lords Steyn and Hutton had said as to the essential elements of the tort and the requirements that must be satisfied. Lord Hutton did not discuss in detail the concept of public office. That was not an issue in Three Rivers.

53 In Three Rivers at 1230 Lord Steyn stated that not only must the defendant be a public officer there must be the exercise of power as a public officer. Lord Millet at 1273 referred to the core concept of the tort as abuse of power. Lord Hope referred to a similar concept in Three Rivers (No 3) 2001 2 All ER 513 at [42].

54 While some judges of highest authority refer to an abuse of power as the core concept or the essential element of the tort others refer to the tort being concerned with the performance of public duties. Brennan J also referred to the absence of an honest attempt to perform the functions of the office. Perhaps the different modes of expression reflect the different circumstances which can arise and too much importance should not be attached to the mode of expression employed.

55 Different approaches also arise as to a “public office” and a “public officer”. In Calveley Lord Bridge thought that the tort at least involved an act done in the exercise or purported exercise by the public officer of some power or authority with which he or she is clothed by virtue of the office held. Lord Steyn in Three Rivers thought that not only must the defendant be a “public officer” but that there must be the exercise of power as a public officer. Both he and Lord Hobhouse regarded the concept of public office as a broad concept.

56 In Mengel Brennan J took a wider view of the tort than that taken in the House of Lords.

57 There are a number of other authorities to which I should refer.

58 In R v Whitaker 1914 3 KB 283 a colonel of a regiment accepted from a firm of caterers sums of money paid to induce him to accept their representatives as tenant of the regimental canteen. Lawrence J who delivered the judgment of the Court of Criminal Appeal (comprising himself, Lush and Atkin JJ) said at 1296:

“A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharges, he is a public officer,”

59 Whitaker was concerned with a public and ministerial officer accepting a bribe and conspiring with others to receive a bribe. In argument in Whitaker Sir J Simon A-G had relied heavily on the remarks of Best CJ in Henly as to what constitutes a public officer. The Attorney-General was contending that it was an offence at common law to bribe any public officer.

60 In The King v Boston (1923) 33 CLR 386 it was held that a Member of Parliament held a public office. See per Isaacs and Rich JJ at 402 and Higgins J at 408 and 412. There was a conspiracy to pay a bribe. Higgins J relied on the judgment of Best CJ in Henly.

61 In R v Bowden [1996] 1 WLR 98 the Court of Appeal held, relying on Henly, that the offence of misconduct in a public office had been committed by a local authority employee working as a miscellaneous maintenance manager. The offender was considered to be a public officer because he was “appointed to discharge a public duty and received compensation in whatever shape whether from the Crown or otherwise.”

62 In Whitaker and Boston the defendants held positions of responsibility. In Bowden the position held was less senior. By contrast is the decision in R v McCann [1998] 2 Qd R 56. The accused was employed as a temporary administrative officer performing routine duties under the directions of his superior officers. He was held not to be the holder of any public office under s 87(1) of the Queensland Criminal Code. Davies JA held that the essential characteristic of a “holder of any public office” is that the office exists independently of the holder. Davies JA held that the phrase “holder of any public office” had a different and narrower meaning than “public officer”.

63 Byrne J at 68 distinguished what he described as “subordinate functionaries who are employed but do not hold office”. At 69 Byrne J noted that in Tampion v Anderson [1973] VR 715 at 720 the Victorian Full Court held that the tort of misfeasance in public office “may only be committed by the holder of an office who ‘owes duties to members of the public as to how the office shall be exercised’; and that employment with the Crown is not necessarily a public office for this purpose.” At 73 Byrne J made the point that although an office is an employment not every employment is an office.

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 At 74 Byrne J said:

“Yet, the public element aside, one attribute appears to be basic to ‘public office’ in its ordinary conception. Particular duties, which by law generally are to be exercised with a measure of independence inhere in, or (as the dictionary definition extracted in Boston suggests) attach to, an office.”

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.

66 I turn now to Cannon v Tahche, which was heavily relied upon by Mr Leerdam and Sparke Helmore. It held:

(a) the tort is essentially concerned with the abuse by the holder of a public office of a public power or one which must be exercised for the public good and which is attached to the office (“the relevant power”) (p.328). (Reliance was placed on Sanders at 344; Three Rivers at 1230)

Mengel

(d) the plaintiff must establish that he or she is a member of the public to whom, the defendant owed a duty to exercise the power legitimately, namely only in the public interest and not for an ulterior purpose (p328)

67 The VCA in Cannon v Tahche referred to the decision of McInerney J in Tampion v Anderson [1973] VR 321 and that of the Full Court [1973] VR 715. McInerney J had concluded that counsel appointed to assist a Board of Inquiry or a Royal Commission is not a public officer even though counsel’s fees are paid out of public revenue. Counsel was in no sense answerable to the public for the performance or non performance of his or her duty. Such counsel was answerable to the client, to the instructing solicitor and to the board or commission but to no-one else. McInerney J also held that the first defendant who was appointed as an inspector by an order in Council as a board of inquiry was also not a public officer for the purposes of the tort. The Full Court dismissed the appeal from McInerney J’s decision. The Full Court held that for the purpose of the tort employment with the Crown is not necessarily a public office. The VCA in Cannon v Tahche relied on the decisions in Tampion v Anderson in support of the propositions it had earlier enunciated. Mr Leerdam contended that he was not answerable to the general public for the performance or non performance of his duty. He was answerable to the Minister and the Department including the Departmental Officers.

68 In Cannon v Tahche the VCA rejected the submission that the question whether an office is a public office for the purposes of the tort is to be determined by whether the prosecutor, a barrister at the private Bar and the instructing solicitor who was employed in the office of the Director of Public Prosecutions were required to perform public duties. The VCA held that as the tort was essentially concerned with the misuse of a relevant power which is an incident of a public office it followed as a matter of practicality that an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it.

69 The VCA at [53] held that if an essential element of the tort is the misuse by the holder of the public office of a relevant power that is attached to it, it must follow that the elements of the tort are not sufficiently established unless there is a relevant power attached to the office in question.

70 The VCA at [54] stated:

“Not every position in which the occupier is required to perform a function in which the public has an interest is necessarily a public office for the purposes of the tort. Hence the public duty criterion will not in every case be an appropriate guide to whether the position in question is a public office, for the purposes of establishing the tort..”

and

“a prosecutorial function does not … carry with it any relevant power so that it could not properly be said of a prosecutor appearing at a trial that he or she occupies a public office for the purposes of the tort.”

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.

72 The VCA undertook a detailed analysis of the prosecutor’s responsibilities in the conduct of a criminal trial. The power to hand over information that could have assisted the defence was not a relevant power but the exercise of a discretion.

73 The VCA held at [61] that the position of prosecutor did not have, as an incident of it, any relevant power in the conduct of a prosecution. When the barrister at the private Bar was briefed to prosecute at Mr Tahche’s trial, that barrister did not thereby assume any office and did not acquire any relevant power as prosecutor. Throughout the trial he did no more than fulfil his brief by appearing as prosecutor.

74 The VCA also held that the instructing solicitor did not occupy a public office. She was a Crown servant and was employed as a solicitor and member of “staff” of the Director of Public Prosecutions until 1 July 1994 and thereafter, as a member of “staff” of the Office of Public Prosecutions (although in the latter position she conducted her work under the supervision and direction of the Solicitor for Public Prosecutions). The VCA held that under the relevant legislation she was not the holder of an office and that the legislation explicitly recognised certain officers. The VCA held that no relevant power attached to her position and that the decision of the prosecutor (the barrister at the private Bar) and the instructing solicitor not to pass on the information which they held was no more than an exercise of a discretion that was vested in them as part of their respective roles in the prosecution of the case. The VCA further held that as the prosecutor and the instructing solicitor did not owe the plaintiff any legal duty to disclose the information to him during the trial or so far as concerns the instructing solicitor, the post trial information, after the trial. It followed that even if the question whether the prosecutor and the instructing solicitor held a public office was to be determined by reference to whether they owed public duties, since they owed no such duties, they could not be properly characterised as public officers.

75 The VCA held that if, contrary to its view, the prosecutor and the instructing solicitor did hold a public office and their failure to disclose the information to the plaintiff during the trial (and the failure by the instructing solicitor to pass on the post trial information to the plaintiff) amounted to a wrongful exercise of that power, such wrongful conduct could not expose them to liability to the plaintiff for misfeasance in public office because their duty to conduct the prosecution fairly, and to disclose the information to the plaintiff was not one owed to the plaintiff, but was essentially an ethical one. If owed to anyone it was owed to the Court. It should not be overlooked that on occasions and depending on the circumstances failure by a prosecution to abide by acceptable standards will lead to the quashing of a conviction and a new trial: R v Kneebone (1999) 47 NSWLR 450.

76 In refusing special leave in Tahche v Cannon & Ors [2003] HCA Trans 524, 12 December 2003 the High Court per Gleeson CJ gave as the Court’s reason that the plaintiff’s claim was doomed to failure because any relevant duties that had been breached were owed to the Court and were not actionable by the accused. The Court relied upon the reasons of Deane J in Whitehorn v The King (1983) 152 CLR 657.

77 The plaintiff relied upon the decision of the Western Australian Court of Appeal in Neilson & Anor v City of Swan [2006] WASC 94; 147 LGERA 136. The judgment was delivered by Buss JA, with whom Wheeler and Pullin JJA agreed. That judgment contains a detailed review of the law. At [34] – [36] Buss JA referred to Henly, the judgment of Brennan J in Mengel and the observations of Lord Steyn and Lord Hobhouse in Three Rivers (No 3) that a public office is used in a relatively wide sense and has been extended by recognising that there may be a vicarious liability of the relevant governmental authority. Buss JA said at [37]:

“… 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.

79 Buss JA further held:

Sanders

Three Rivers (No 3)

(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]).

(e) In the absence of binding authority in the High Court and in the context of proceedings which were analogous to a strike out application it was at least reasonably arguable that it is not necessary for the plaintiff to establish that he or she is a member of a class to whom the public officer owes a particular common law or statutory duty. (at [66]).

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

81 I have reached the following conclusions additional to those reached by Buss JA:

(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.

82 Mr Leerdam and Sparke Helmore took strong objection to the allegations in the FAS that in the alternative Mr Leerdam had acted either alone or without instructions in paras 24, 28, 38C(e), 38D, 38E and 39 of the FAS.

83 They pointed to the evidence of Mr M A Vincent, the solicitor for the plaintiff that he did not know whether Mr Leerdam was acting without instructions in the respects alleged in the FAS when he (Mr Leerdam) conducted proceedings in the AAT and that he (Mr Vincent) had no basis for knowing the extent of his (Mr Leerdam’s) instructions to conduct the proceedings. Mr Vincent accepted that Mr Leerdam was instructed to run the case for the Minister. Mr Vincent thought that there were two possible scenarios. Either Mr Leerdam was instructed by his client (the Minister or some Departmental officer on his behalf) not to provide the particulars ordered or that his instructions were broader and that gave him an element of discretion in the way he ran the case that did not require him to seek instructions about such a decision he decided not to supply the particulars.

84 Under UCPR 6.19 it was permissible for the plaintiff to join the four defendants and the contrary was not suggested. UCPR 14.18 recognizes the right of a party to make allegations of fact or raise grounds or claims in the alternative. Parties cannot properly plead inconsistent factual allegations. Joinder of parties and making alternative allegations about them is permissible where there is doubt as to which of them is liable for the relief claimed. Mr Leerdam and Sparke Helmore contended that the plaintiff and his advisers did not have an adequate basis for making the allegation in the alternative that he (Mr Leerdam), had acted without instructions in not supplying sufficient particulars as ordered prior to the commencement of the first substantive hearing before the AAT and on 16 August 2001 procuring a confidential hearing excluding the plaintiff and his solicitor and still not supplying the particulars. The setting aside or variation of the order for the supply of particulars was not sought.

85 The material available to support the contention that it is reasonably arguable that Mr Leerdam was in the alternative acting either alone or without instructions includes:

(a) The terms of the submissions put by Mr Leerdam to the AAT. See 37 above. In addition I was told that on the hearing before Emmett J counsel for the plaintiff was supplied with a redacted version of the transcript of the 25 minute confidential hearing on 16 August 2001 by the Minister/Commonwealth

(b) Given the decision maker’s duty to use his or her best endeavours to assist the Tribunal to make its decision, and assuming the decision maker wished to protect the confidentiality of the sources of information, it is improbable that the decision maker would determine not to supply the particulars ordered and not to apply to vary or set aside those orders. Meaningful particulars could have been supplied and an informative summary of the confidential evidence and the confidential hearing provided without breaching confidentiality. What is envisaged is the decision maker using his or her best endeavours to assist the Tribunal to make the correct decision. It is difficult, if not impossible, for this to happen if the applicant before the AAT is not given sufficient particulars and information of the case against him so he can endeavour to meet it.

(c) The AAT depended upon Mr Leerdam’s statement that harm would ensue if certain evidence was not taken in the absence of the plaintiff and his solicitor and his reluctance to deal with the non-supply of particulars except at a hearing at which the plaintiff and his solicitor were not present. The AAT was entitled to proceed upon the basis that before such statement was made and reluctance exhibited Mr Leerdam would have thoroughly investigated the position in each instance and taken into account the applicant’s need for procedural fairness including that of knowing the case to be alleged against him. It is no answer to say that the final decisions were made by the AAT when it depended on the material placed before it.

86 Having regard to the inferences of unfairness which the plaintiff wishes to draw from the conduct of the AAT proceedings, the materials available to support those inferences and the circumstances of this case, in my opinion, the allegations in the alternative are not objectionable. They should neither be dismissed nor struck out.

87 No defendant has filed a defence and discovery has not been had. In an application for summary dismissal of the plaintiff’s action Mr Leerdam and Sparke Helmore undertake the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11F. One of a number of defendants is not entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff’s case. One or more of the defendants going into evidence may seek to exculpate themselves by inculpating defendants against whom the plaintiff had insufficient evidence. It is not known what evidence, if any, the Minister and the Commonwealth may seek to lead and what claims for privilege will be made. Nor are Mr Leerdam or Sparke Helmore entitled to summary dismissal of the plaintiff’s claimed cause of action based on the tort of misfeasance in public office prior to the authoritative definition of the elements of that tort and where it is reasonably arguable that the plaintiff is able to establish the elements of that tort.

Abuse of Process

88 The plaintiff’s claim is made in tort for a collateral abuse of process. Mr Leerdam and Sparke Helmore contended that the FAS disclosed no such cause of action and that paras 39-47 should be struck out for these reasons which comprise both points of substantive law and pleading, namely:

(a) The tort of collateral abuse of process is one concerned with actions of parties to litigation, most typically the plaintiff or cross claimant. On the authority of Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92 and Lux Gulabrai v Karl Hamer-Mathew (unrep NSWCA. 26 June 1997) it appears that the tort may also be available against a defendant. The right to challenge the correctness of these later decisions was reserved. It is not a tort which is capable of being committed by a person who is not a party to the litigation.

(b) The tort of abuse of process is concerned with the use to which proceedings are put. It is the parties who use the court’s process not their legal representatives. The gist of the action is the use (necessarily by a party) of the process of the court for a dominant purpose which is illegitimate.

(c) From the FAS, especially para 43, it appears that the gist of the complaint of abuse of process is the failure to carry out the acts and obligations there identified (failing to provide adequate particulars, insisting that evidence be given in secret, insisting on a secret 25 minute hearing and refusing to provide a summary of the evidence given in secret). These were all acts done in the course of conducting the proceedings before the AAT. There was no pleading that Mr Leerdam and/or the Minister thereby had the purpose of seeking to gain some advantage, accompanied by particulars of the advantage alleged. (In secret, means in the absence of the plaintiff and his solicitor).

(d) The plaintiff’s claim alleging commission of the tort of collateral abuse against a non-party to proceedings is without foundation or precedent.

(e) The other means of regulating an abuse of process is through the staying of a claim or cross-claim. The stay or remedy for the abuse operates upon the process instituted by one of the parties.

(f) Even if the tort could lie against a legal representative of a party to proceedings, the pleading is still deficient. The plaintiff’s true complaint is as to the way in which the proceedings in the AAT were conducted: (see the FAS (esp paras 43, 44 and 44B). 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.

(g) Paras 39, 39A, 40, 44A and 44B confuse motive and purpose. The plaintiff does not allege any advantage that Mr Leerdam would gain or was seeking to gain as a result of his alleged conduct. While the word “purpose” is used in para 39A it is really a pleading of motivation. There is no pleading of a purpose to secure some collateral advantage to either the Minister or Mr Leerdam.

111 The claim of Mr Noori has a different factual matrix. He relied not on an act but an omission. His claim differs substantially on the facts from any previous claim of collateral abuse of process of which I am aware. His claim is based on non-compliance with an order made by the AAT in proceedings in which he was the applicant for review of an administrative decision of the delegate of the Minister that the applicant was not entitled to the protection of Australia as there were serious reasons for considering that the applicant had engaged in disentitling conduct within Article 1F of the 1951 Convention. The plaintiff needed particulars of his alleged disentitling conduct so he could attempt to meet the allegations being made. The effect of the non-supply of the particulars ordered was to unfairly disadvantage Mr Noori in his attempts to meet the case against him. The probable result of this unfairness was to deprive Mr Noori of the opportunity to show that there were no serious reasons for considering that he was engaged in disentitling conduct. If he did not succeed on this issue he would not receive a Protection Visa. This was in a context where the decision maker was bound to assist the Tribunal reach a correct decision on the merits. The Minister was entitled to seek to uphold the decision reached by the delegate but not by failing to supply the particulars ordered. Those particulars could be supplied without committing impermissible breaches of proper security requirements. Seeking to uphold the delegate’s decision is not a collateral purpose.

112 The process of administrative review is not designed for the Minister and/or his solicitor to make it practically impossible for an applicant to have an effective review of the decision made by not supplying particulars of the allegation. From the usual practice it may reasonably be inferred that the solicitor drafted or settled the particulars which were supplied. They did not comply with the Tribunal’s orders. No application was made to vary or set aside the Tribunal’s orders. The solicitor conducted the Minister’s case and cross-examined the applicant (the plaintiff) without supplying the particulars and sought to justify their non-supply during a hearing from which both the plaintiff and his solicitor were excluded.

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.

115 The plaintiff relied on a combination of matters as constituting an abuse of process including improper purpose and as precipitating an unfair hearing by the AAT and one so engineered by the Minister and Mr Leerdam.

(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. The 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.

117 Subject to dealing with the question of legal professional immunity I regard both claims as being reasonably arguable, although neither has arisen in that form previously. I have not overlooked that the AAT made the various decisions but the ones under challenge were made upon what Mr Leerdam told the Tribunal.

Legal Professional Immunity

118 Section 60(2) of the AAT Act 1985 provides:

“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.”

119 There are companion provisions in ss 60(1) and (3) which respectively afford to a member of the Tribunal in the performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court and to a witness the same protection as a witness in proceedings in the High Court.

120 Mr Leerdam and Sparke Helmore contended that they were immune from suit. They relied heavily upon the decision in D’Orta-Ekenaike v Victoria Legal Aid (VLA) (2005) 223 CLR 1. The plaintiff was charged with rape. He entered a plea of guilty at a committal hearing but on arraignment he changed his plea to not guilty. The plea of guilty at the committal hearing was led in evidence at the first trial and the plaintiff was found guilty. The Victorian Court of Appeal held that the instructions given to the jury by the trial judge as to the use that could be made of the guilty plea at the committal hearing were inadequate, quashed the conviction and directed a new trial. At the second trial the judge ruled that the guilty plea at the committal hearing was inadmissible and the plaintiff was acquitted. After his acquittal the plaintiff brought proceedings against VLA (deemed to be a firm of solicitors) and the barrister retained by it for advice given that if the plaintiff entered a plea of guilty at the committal hearing he would receive a suspended sentence and for not advising him that if he later changed his plea to not guilty and stood trial the earlier plea of guilty could be relied on by the prosecutor as an admission of guilt. The plaintiff contended that VLA and the barrister exerted undue pressure and influence upon him to induce him to plead guilty. The statement of claim alleged that by reason of VLA’s breach of retainer and the breach of duty by VLA and the barrister, the plaintiff had suffered loss and damage. The allegations were consistent with either contractual duties or duties of care imposed by law or both.

121 The High Court declined [at 85] to reconsider its decision in Giannarelli v Wraith (1988) 165 CLR 543 “that an advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court.” Mr Leerdam and Sparke Helmore stressed the words “or otherwise”. The plaintiff pointed out that the Court was dealing with causes of action for negligence or breach of the contractual duty in the retainer to exercise reasonable care. At [86] the joint judgment of four justices held there is no reason to depart from the test described in Giannarelli as work done in court or “work done out of court which leads to a decision affecting the conduct of the case in court” or “work intimately connected with” work in a court. The Court held that the immunity enjoyed by a barrister or solicitor was rooted principally in the place of the judicial system as a part of the governmental structure and the place that an immunity from suit has in a series of rules all of which are designed to achieve finality in the quelling of disputes by the exercise of judicial power.

122 The Court at [31] said that as to Giannarelli

for the administration of justice

123 At [32] the Court pointed out that judicial power is exercised as an element of the government of society and that its aims are wider than, and more important than, the concerns of the particular parties to the controversy, the community at large having a vital interest in the final quelling of the controversy. The central concern of the exercise of judicial power is the quelling of controversies.

124 At [34] the majority judgment stated:

“A central and pervading tenet of the judicial system is that controversies once resolved are not to be re-opened except in a few, narrowly defined, circumstances.”

125 The majority judgment pointed out [at 39] that for centuries a disappointed litigant has not been able to sue a witness who has given evidence. All such actions were precluded by an absolute privilege. It did not matter whether what was done was alleged to have been done negligently or even deliberately and maliciously with the intention that it harm the person who would complain of it.

126 At [45] the majority judgment stated:

“… the central justification for the advocate’s immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances … If an exception to that tenet were to be created by abolishing that immunity, a peculiar type of re-litigation would arise.”

It was pointed out that if judicial and witness immunity remained but not the advocate’s immunity the re-litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate. This would be re-litigation of a skewed and limited kind. Mr Leerdam and Sparke Helmore submitted that in such circumstances the advocate cannot be equitably exposed to suit [45] and [191-193] per McHugh J. I accept that regard would have to be had to the conduct and attitude of the judge (and Tribunal Member) who would not give evidence as he or she enjoys immunity. The whole transcript would have to be read but that they may be unsatisfactory and give an incomplete picture.

127 The majority judgment gives extensive in-depth consideration to the reasons underlying what is shortly described as “advocates’ immunity” and examined the situation in other common law countries. It also considered a number of consequences to which the “client’s complaint” may give rise, namely, (a) a wrong final result; (b) a wrong intermediate result; and (c) wasted costs. The majority stated that in every case the complaint must be that a consequence has befallen the client which has not been, and cannot be, sufficiently corrected within the litigation in which the client was engaged.

128 The present case is different in that the plaintiff is not complaining about the conduct of his solicitor but that of the Minister and that of the Minister’s solicitor. This application is concerned with the last mentioned conduct. However, it was contended by Mr Leerdam and Sparke Helmore that the reasoning of D’Orta applied to the present case and probably, a fortiori.

129 In D’Orta it was pointed out that the consequences which had befallen the client, namely imprisonment from the time of the verdict in the first trial to the acquittal in the second trial were lawful. Similarly, it was contended that the plaintiff’s detention until 31 January 2006 was lawful.

130 The majority judgment pointed out that there were instances where the full effect was not given to the premise that there should be no wrong without remedy. After referring at [72] to what it described as the paradigm case in which there should be a remedy as where the advocate’s negligence is a cause of the client losing the litigation the joint judgment posed the question whether there should be a remedy for cases in which the client seeks to challenge the final result.

131 The majority judgment at [73] pointed to two consequences in the cases where the client seeks to challenge the final result, firstly to the tension between the principle of finality and allowing litigation seeking damages in cases where in order to succeed it will be necessary to impugn the final result of earlier litigation. Secondly, recognizing that to permit a challenge to the final result is inconsistent with the need for finality, shifts attention to whether there are to be exceptional cases in which that may be permitted.

132 The majority judgment stated at [74] that questions of abuse of process could be relevant to the issue whether a client should have an action against a negligent advocate only if it is accepted that there are, or may be, circumstances in which the result reached in earlier litigation should not be impugned. In Arthur J S Hall & Co v Simons [2002] 1 AC 615 the House of Lords held that none of the reasons said to justify “advocate’s immunity” including the public policy against re-litigating a decision of a court of competent jurisdiction had sufficient weight to sustain the immunity in relation to civil proceedings and that the principles of res judicata, issue estoppel and abuse of process were sufficient to prevent any action being maintained which would be unfair or bring the administration of justice into disrepute. It was further held that the obstacle of proving a better standard of advocacy would have produced a different outcome and the ability of the Court to strike out unsustainable claims under CPR r 24.2 would restrict the ability of clients to bring unmeritorious and vexatious claims against advocates should the immunity be removed. Accordingly the public interest in the administration of justice no longer required that advocates enjoy immunity from suit for alleged negligence in the conduct of civil proceedings. See per Lord Steyn 678F-680B, Lord Browne Wilkinson at 684, Lord Hoffman at 687C-G, 690B-691F, 698G-707C, Lord Millet at 752-753. While all seven Law Lords concluded that advocates’ immunity in civil proceedings should be abolished three thought it should be retained in criminal proceedings. The majority did not.

133 In Arthur J S Hall their Lordships gave consideration to actions for abuse of process. It was recognised that it would ordinarily be an abuse of process for a civil court to be asked to decide in the course of determining a civil claim that a subsisting conviction was wrong and that such an action would be stayed or dismissed. This was one consideration which the members of the House took into account when holding that advocate’s immunity should not apply in civil proceedings.

134 The majority judgment in D’Orta at [74] – [75] referred to Lord Diplock in Hunter at 536 speaking of abuse of process as a misuse of a court’s procedure which would “be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people” and to the need to examine the circumstances which might make the prosecution of the civil claim against the advocate “manifestly unfair” or “bring the administration of justice into disrepute among right-thinking people.” The majority judgment stated at [75]:

“When it is recognised that the particular circumstance which is said to engage consideration of questions of abuse of process is that the proceeding against the advocate requires challenging the result arrived at in earlier litigation, the question then becomes how can a distinction be drawn between results that can be attacked, and those that cannot.”

135 The majority judgment rejected that a distinction could be drawn between civil and criminal proceedings.

136 The majority judgment held that judgments given in civil proceedings were worthy of as much respect as those reached on the trial of indictable or other offences. At [79] the majority judgment stated:

“If effect is to be given to the principle that decisions of the courts, unless set aside or quashed, are to be accepted as incontrovertibly correct, it must be applied at least to the parties to the proceedings in which the decision is given. The final outcome of the proceeding, whether ‘civil’ or ‘criminal’ or a hybrid proceeding, must be incontrovertible by the parties to it.”

137 The majority judgment rejected the contention that even if a client cannot say that a different final outcome should have been reached, the client may nonetheless complain about an intermediate result. The majority judgment pointed out that an intermediate result may be set aside on grounds unrelated to what is now alleged to have been the advocate’s negligent conduct. In D’Orta the conviction at the first trial was quashed for want of a proper direction. The majority judgment stated that in general in a criminal matter if an intermediate result is set aside, it will be for reasons unconnected or, at best, only indirectly connected with the client’s contention that the advocate was negligent. The majority judgment proceeded at [82]:

“It follows, therefore, that the class of cases in which an intermediate result would be open to challenge not only would be exceptional, in the sense of standing apart from challenges to final decisions, but also would be a class of case whose membership would depend upon the application of criteria unconnected with what, for present purposes, is the central focus of debate, namely the alleged negligence of the advocate. By this stage of the argument, in which attention is directed solely to exceptional cases, the proposition that for every wrong there should be a remedy has become too attenuated to be of any relevant application. Especially is that so when the very existence of the relevant exceptional case depends for the most part upon considerations that are irrelevant to the wrong that is to be remedied. If final results cannot be challenged, intermediate results should not be treated differently.”

138 In the present case, Mr Leerdam and Sparke Helmore sought to argue by analogy, that the final decision was not being challenged whether it be that of Deputy President Walker holding that there were no serious reasons for considering that the plaintiff had engaged in any disentitling conduct within the terms of Article 1F of the 1951 Convention relating to the Status of Refugees or the issue by the Minister of a Protection Visa. It was further contended that the decision of Deputy President Wright should be seen as an intermediate result which should not be open to challenge in proceedings such as the present proceedings. The argument continued that while the central focus of debate in D’Orta was the alleged negligence of the advocate the principle it enunciated should be extended or applied to the present case. Reliance was placed on Deputy President Wright not enforcing his earlier order for the supply of particulars.

139 (a) In the present case the intermediate result was set aside because of a denial of procedural fairness and the matter was reheard. On the rehearing of the administrative review no serious disqualifying reasons were found to exist. In D’Orta the conviction was set aside because of inadequate direction and there was a re-trial and an acquittal due to a lack of evidence.

(b) An administrative decision can always be reviewed. It does not have the quality of finality of a court verdict judgment or order. An administrative decision permits, at least in theory, of greater flexibility.
(c) In D’Orta neither the prosecutor-barrister nor the VLA were directly or indirectly responsible for the lack of adequate directions. In the present case, and perhaps exceptionally, it is reasonably arguable that the Minister and Mr Leerdam significantly contributed to the denial of procedural fairness in a matter of major concern by failing to supply the particulars ordered and failing to supply informative summaries of the evidence taken in the absence of the plaintiff and his solicitor and being reluctant to deal with the question of particulars other than in the absence of the plaintiff and his solicitor. I refer to the four grounds of denial of procedural fairness by the AAT upheld by the Full Federal Court.

140 As earlier appears there are differences between the present case and D’Orta apart from the different torts being relied on. An administrative review and a criminal trial should not readily be assimilated, nor should the order of a Court of Criminal Appeal quashing a conviction and directing a new trial because of want of an adequate direction as to the use of a plea of guilty at an early stage of committal proceedings and the Full Federal Court setting aside the Tribunal’s decision for want of procedural fairness. I have not overlooked that the Tribunal, which was dealing with grave allegations, should have enforced its orders as the Full Federal Court found, but Mr Leerdam resisted it doing so for allegedly security reasons. The particulars ordered were ultimately supplied before the re-hearing.

141 At the forefront of the matters to be considered is s 60(2) of the AAT Act. That extends to a solicitor appearing before the Tribunal on behalf of a party the same immunity as a barrister appearing for a party in proceedings in the High Court. That incorporates the immunity which a barrister has at common law. That extends to work done before the Tribunal and work done in the course of and intimately connected with the Tribunal’s review.

142 There is a question whether advocates’ immunity applies in respect of the two torts the subject of the FAS even accepting that it applies in instances other than an action for damages for negligence and an action for damages for the breach of the contractual duty to take reasonable care.

143 In Taylor v Serious Fraud Office [1999] 2 AC 177 at 215, Lord Hoffman, with whom three of the other members of the House appeared to agree observed, probably by way of obiter, that the advocates’ immunity does not apply to actions for malicious prosecution where the cause of action consists in abusing legal process by maliciously and without reasonable cause setting the law in motion against the plaintiff and that it does not matter than an essential step in setting the law in motion was a statement made by the defendant to a prosecuting authority. Lord Hoffman at [215] remarked that there was some dispute whether the general immunity from suit for statements made in the witness box applied to the emergent tort of abuse of public office. He noted a number of conflicting decisions.

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 he structure of government but it is not part of the judicial arm of government.

147 Both the torts sued on are unusual and neither is frequently deployed. Apart from the issue whether legal professional immunity applies to them the boundaries and elements of each f the torts are not fixed. They are still developing. The plaintiff has advanced a reasonably arguable case on each.

148 Having formed the view that the three major issues are reasonably arguable I have refrained on this interlocutory application from expressing any concluded view on the legal questions raised. None of the defendants has pleaded.

149 I anticipate that the hearing of this actin would take four to six weeks. It raises issues of importance. Questions of law have been raised which have not been authoritatively determined previously. This elucidation of the facts may reduce the number of questions of law.

150 It is preferable for this action to go to trial against all parties with the assistance of discovery and possibly some interrogatories, the facts to be ascertained and findings made. The proceedings should not be summarily dismissed against Mr Leerdam and Sparke Helmore. Nor should the FAS be struck out as against them. It may be that after discovery further particulars will be supplied, as foreshadowed, and the FAS further amended. Unhappily, the events the subject of these proceedings took place against the background of the plaintiff’s extended detention.

151 I record my appreciation of the great skill and industry of all counsel and their admirable arguments in this complex and unusual matter.

152 I dismiss the motion of Mr Leerdam and Sparke Helmore to dismiss the proceedings or strike out the Further Amended Statement of Claim filed 27 February 2008. I am prepared to hear argument on the question of costs. Subject to any of the parties not advising my Associate in writing within seven days of the date hereof (and the opposing parties) of their desire to argue the question of costs I order that Mr Leerdam and Sparke Helmore pay the costs of the plaintiff of their motion. These orders are not to be taken out for a period of seven days. Such costs would not include the amendments and the further amendments to the Statement of Claim.

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Citations

Noori v Leerdam & 3 Ors [2008] NSWSC 515

Most Recent Citation

Twining v Curtis [2009] ACTSC 106

Cases Citing This Decision

6

Leerdam v Noori [2009] NSWCA 90

Andrew John Katelaris v Medical Council of New South Wales (formerly New South Wales Medical Board) (No. 2) [2012] NSWSC 617

New Zealand Defence Force v Berryman [2008] NZCA 392

Cases Cited

17

Statutory Material Cited

3

Sue v Hill [1999] HCA 30

R v Hair [2009] NTSC 9

CITATION:	Noori v Leerdam & 3 Ors [2008] NSWSC 515
HEARING DATE(S):	26 and 27 February 2008
JUDGMENT DATE :	30 May 2008
JUDGMENT OF:	Smart AJ at 1
DECISION:	Motion of 1st and 2nd defendants dismissed
CATCHWORDS:	Availablility of developing torts of misfeasance in public office and collateral abuse of process as to administrative law review by AAT - conduct of solicitor and Minister - whether on facts pleaded there should be summary dismissal of proceedings or striking out of Further Amended Statement of Claim - Claim for legal professional immunity and its basis and whether it applies to these torts
LEGISLATION CITED:	AAT Act 1975 Migration Act 1958 (Cth) Queensland Criminal Code
CATEGORY:	Principal judgment
CASES CITED:	Arthur J S Hall & Co v Simons [2002] 1 AC 615 Batistatos v RTA (NSW) (2006) 226 CLR 256 at 262-263. Butler v Simmonds Crowley and Galvin [2000] 2 Qd R 252 Calveley v Chief Constable of Merseyside [1989] AC 1228 at 1240 Cannon v Tahche (2002) 5 VR 317 Giannarelli v Wraith (1988) 165 CLR 543 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92 Henly v The Mayor of Lyme 130 ER 995 at 1001 HunterTaylor v Serious Fraud Office [1999] 2 AC 177 at 215 Hunter v Chief Constable of West Midlands 1982 AC 529 at 536 Lux Gulabrai v Karl Hamer-Mathew (unrep NSWCA. 26 June 1997) Metall v Rohstoff (1990) 1 QB at 469 Neilson & Anor v City of Swan [2006] WASC 94; 147 LGERA 136. Northern Territory of Australia and Others v Mengel & Ors (1994-1995) 185 CLR 307. R v Bowden [1996] 1 WLR 98 R v Kneebone (1999) 47 NSWLR 450 R v McCann [1998] 2 Qd R56 R v Whitaker 1914 3 KB 283 Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 Roberts v Bass (2002) 194 CLR 161 Rogers v The Queen (1994) 181 CLR 251 at 286 SA v O’Shea (1978) 163 CLR 378 Sanders v Snell (1998) 196 CLR 329 at 345. Spautz v Gibbs (1990) 21 NSWLR 230 Tampion v Anderson [1973] VR 715 at 720 The King v Boston (1923) 33 CLR 386 Three Rivers (No 3) 2001 2 All ER 513 at [42] Three Rivers District Council & Ors v Bank of England 2000 2 WLR 1220 Whitehorn v The King (1983) 152 CLR 657 Wickstead v Browne (1992) 30 NSWLR 1 at 11F Williams v Spautz (1991-2) 174 CLR 529
FILE NUMBER(S):	SC 20154/2007
COUNSEL:	Dr A Bell & Ms A Horvath (applicants - D1 & D2) Dr C Birch & Mr J Hyde (respondent - pltf)
SOLICITORS:	DLA Phillips Fox (D1 & D2) Truman Hoyle Lawyers (Pltf)
LOWER COURT JURISDICTION: