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Noori v Leerdam

Noori v Leerdam

Case [2008] NSWSC 515 30 May 2008

Misfeasance in Public Office

Collateral Abuse of Process

Summary Judgment

Legal Professional Immunity

Administrative Law

Tort Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Noori v Leerdam

Details

AGLC: Noori v Leerdam & 3 Ors [2008] NSWSC 515
Case: [2008] NSWSC 515
Decision Date: 30 May 2008

CaseChat Overview and Summary

In the case of Noori v Leerdam, the plaintiff, Noori, sought to hold Leerdam, a former minister, and another solicitor, liable for misfeasance in public office and collateral abuse of process in relation to administrative law review. The case was heard by the Federal Court of Australia, which was required to determine the availability of these torts in the context of the administrative law review by the Administrative Appeals Tribunal (AAT). Additionally, the court needed to decide whether the conduct of the solicitor and the Minister warranted summary dismissal of the proceedings or the striking out of the Further Amended Statement of Claim. The plaintiff also sought legal professional immunity, and the court had to consider the basis of such immunity and whether it applied to these torts.

The central legal issues revolved around the applicability of the torts of misfeasance in public office and collateral abuse of process to the administrative law review conducted by the AAT. The court had to consider whether these torts could be extended to cover actions taken during the AAT review process. Furthermore, the court needed to determine whether the conduct of the solicitor and the Minister warranted the dismissal of the proceedings or the striking out of the Further Amended Statement of Claim. Finally, the court had to examine the basis of legal professional immunity and whether it could be invoked in this case to protect the solicitor from liability.

The court found that the torts of misfeasance in public office and collateral abuse of process could indeed extend to the administrative law review process conducted by the AAT. The court held that these torts could be applicable in situations where there was a clear abuse of power or process during the review. However, the court also noted that the plaintiff had not sufficiently pleaded facts that would establish the necessary elements of these torts. Consequently, the court determined that the conduct of the solicitor and the Minister did not warrant the summary dismissal of the proceedings. However, the court did strike out certain parts of the Further Amended Statement of Claim that were deemed insufficiently pleaded. Regarding legal professional immunity, the court found that it did not apply to these torts in the circumstances of this case.

The court ordered that the proceedings would not be summarily dismissed, but it did strike out parts of the Further Amended Statement of Claim that were insufficiently pleaded. The court also determined that legal professional immunity did not apply to the torts of misfeasance in public office and collateral abuse of process in this case. The plaintiff was given an opportunity to amend the Further Amended Statement of Claim to address the deficiencies identified by the court.

Orders