Noori v Leerdam & Ors

[2009] HCATrans 288

[2009] HCATrans 288

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S119 of 2009

B e t w e e n -

NAQIB AHMED NOORI

Applicant

and

LEONARD KEITH LEERDAM

First Respondent

SPARKE HELMORE LAWYERS

Second Respondent

THE HON PHILIP MAXWELL RUDDOCK MP

Third Respondent

COMMONWEALTH OF AUSTRALIA

Fourth Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 NOVEMBER 2009, AT 11.25 AM

Copyright in the High Court of Australia

MR C.J. BIRCH, SC:   May it please the Court, I appear with my learned friend, MR J.J. HYDE, for the applicant.  (instructed by Truman Hoyle Lawyers)

MR A.S. BELL, SC:   May it please the Court, I appear with my learned friend, MS P.A. HORVATH, for the first and second respondents.  (instructed by DLA Phillips Fox Lawyers)

MR R.T. BEECH‑JONES, SC:   If the Court please, I appear with my learned friend, MS K.C. MORGAN, for the third and fourth respondents.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Thank you. Yes, Mr Birch.

MR BIRCH:   Your Honour, I should firstly indicate that we need an order dispensing with compliance with the rule in regard to time.  We were one working day late in filing our application and that is dealt with in the affidavit of Mr ‑ ‑ ‑

FRENCH CJ:   Is that opposed?

MR BELL:   No, your Honour.

MR BEECH‑JONES:   No, your Honour.

FRENCH CJ:   You have that extension.

MR BIRCH:   Thank you, your Honour.  Your Honour, there are two special leave points that the case raises.  The first, the misfeasance point, concerns the nature of that tort.  That, in turn, we say divides into two sub‑points.  The first I will describe as the relevant powers question.  Our submission is that the way in which the matter was disposed of by the Court of Appeal in New South Wales was, to a significant degree, to follow the reasoning of the Victorian Court of Appeal in the case of Cannon v Tahche.  In Cannon what the Victorian Court of Appeal had found was that the possession of relevant powers in the way in which that was defined in that decision was a condition of finding someone a public officer and without the identification of such relevant power the tort did not get a toehold.

Our opponents have suggested that we may go too far in suggesting the Court of Appeal placed importance on that.  If your Honours could turn to page 128 of the application book.  That is the beginning of the analysis by Justice Macfarlan who wrote the leading judgment in the New South Wales decision.  At paragraph 100 his Honour there refers to the Victorian decision, their analysis and says:

In particular, I agree with the Court’s primary ground of decision that an office cannot be characterised as a public office for the purposes of the tort if no relevant power is attached to it.

Your Honours, our first submission is that that does represent the key finding of the New South Wales Court of Appeal.

BELL J:   Does that really deal with the reasoning both of the Chief Justice and the President, either of whom confined themselves to the Cannon analysis?

MR BIRCH:   It does not deal fully with their analysis.  Your Honour, what one gets from the judgment is this.  Justice Macfarlan rests principally on the Cannon point, we say.  Chief Justice Spigelman and Justice Allsop adopt what is said by Justice Macfarlan but they go on and raise what I might call the duty point.  This duty point arises if one forms the view that the Victorian decision is too narrow and it is not essential that one have a relevant power, one could also have an appropriate public duty and in those circumstances the Chief Justice and Justice Allsop say that the duty that was involved here, to the extent that there was a duty at all, was a duty of the Minister in the way he conducted himself in the proceedings.  That did not give rise to a correlative duty on the part of his representative and it was not a public duty, in any event.

In regard to those points, we say, firstly, that there was clearly a duty owed by the Minister to the Tribunal, a duty to assist the Tribunal in obtaining a just and fair result and Justice Allsop seems to come part of the way towards accepting that proposition, although his Honour says that he did not feel that he could make any finding.  We would have thought that the fact that it was a summary procedure and his Honour felt constrained in that regard was another reason why we should not have been summarily dismissed.

BELL J:   But was not his Honour there making some observations concerning a case against the Minister?

MR BIRCH:   He was and what he was suggesting was that the case against the Minister could be different, could have a merit that the case against the solicitor did not.

BELL J:   Yes.

MR BIRCH:   Then the question becomes, though, whether the solicitor himself had a duty and whether that was a public duty that brought him within the public officer definition.  Your Honour, we say two things here.  The approach of the Chief Justice and Justice Allsop was to characterise the Minister’s representative as a solicitor and say, are solicitor duties the sort of solicitor duties owed, when a solicitor typically appears for a client, ones which could give rise to a public duty that could trigger the misfeasance tort? 

We would say that a better way of approaching it would be not to look at the position of Mr Leerdam as solicitor and seek to characterise it by reference to normal solicitor duties, but to look upon him as representative of the Minister.  This was an administrative tribunal.  The Minister could have chosen a non‑lawyer, perhaps, to appear on his behalf, an official of the department.  Would some other person chosen to stand in the Minister’s shoes before the Tribunal during that hearing have not possessed duties similar to the duties the Minister had to assist the Tribunal in coming to a fair and just decision?

FRENCH CJ:   The statutory duty in that respect did not arise until after these events, did it?

MR BIRCH:   That is true, your Honour.  We accepted that.  We did not ever pin our case on the existence of that statutory provision.  Before the Court of Appeal we argued there was an implied duty on the Minister to assist the Tribunal and there was a decision of the Tribunal itself in which the Tribunal had held that the Minister had an obligation to assist the Tribunal.  In our submissions in reply we have in fact referred to the 2008 decision of the New South Wales Court of Appeal constituted quite differently to the Court of Appeal that heard our case.  This is at page 194 of the application book in paragraph 7 of our submissions.  In that case, Mahenthirarasa v State Rail Authority of New South Wales ‑ ‑ ‑

FRENCH CJ:   You are a few vowels short there, but never mind.

MR BIRCH:   Yes, sorry, your Honour.  The solicitor acting on behalf of the Executive was found to have owed a duty and this was a discussion which arose in regard to the awarding of costs, I should say.

BELL J:   That was a very different case, was it not?

MR BIRCH:   It was a very different case, your Honour, only in this regard, though, your Honour, that the existence of a duty on behalf of members of the Executive to courts and tribunals would not change much, we would say.  Its content might change, but its existence would not change, whether one is in the Administrative Appeals Tribunal or a State court or body.  We would say that there is ample scope for a finding that the Minister owed at least an obligation or a duty to ensure the Tribunal obtained a just and fair result.

The question is whether his representative likewise also had such an obligation or duty. We say that that seems to follow.  It would be odd if the Minister had a duty, could appoint someone to stand in his shoes, that representative did not have a similar obligation.  If the Minister, for example, said, “Well, look, I didn’t expressly instruct anyone to do any particular thing.  I appointed this person to conduct the case as they saw fit.  On my behalf they did so and they did not possess a correlative duty”, that, we say, would be a surprising conclusion to reach.

BELL J:   This is the proxy argument?  The solicitor is the proxy of the Minister?

MR BIRCH:   Indeed, your Honour.  I do not know whether the word “proxy” was the best term I could have chosen but what we say, though, is that it would be odd if the Minister could say, “Look, I haven’t breached any duty because I chose an appropriate representative.  I gave them a broad discretion.”

FRENCH CJ:   We are talking here about personal actions against a representative, are we not?

MR BIRCH:   That is right.

FRENCH CJ:   Yes.

MR BIRCH:   Your Honour, also keep in mind that this strikeout application came before any defences had been filed by any of the defendants, before there has been any pleading by the solicitor or the Commonwealth as to the nature of the retainer or the nature of the instructions that were given, so we have brought our case ‑ ‑ ‑

FRENCH CJ:   It just strikes me as a bit odd, I suppose, that you have here a tribunal – it is an independent tribunal within the overall framework of the decision‑making that leads to outcomes as to visas and so forth.  In this case we were talking about disentitlement under Article 1F.  But it is part of the continuum of administrative decision‑making and has been so described in the past, in this case part of the continuum of administrative decision‑making under the Migration Act.  It just strikes me as very odd that one would think that a legal representative appearing before that Tribunal in that sort of context is exercising official power or duties of a kind which attract the potential rubric of misfeasance in public office.

MR BIRCH:   Your Honour, we certainly accept that this is a novel application of the tort and the fact is that the modern world presents us with unusual circumstances.

FRENCH CJ:   Everybody will have to watch their Ps and Qs, will they not, if this is right?

MR BIRCH:   Your Honour, we acknowledge plainly, too, that this is a tort which contains one very important break on its too extensive expansion, that is, that we still need to establish an element of malice as that has been considered and interpreted by the cases.  It is not as if we are bringing an action against the solicitor on the grounds that he has committed a merely negligent default or committed a ‑ ‑ ‑

FRENCH CJ:   When you mean malice you mean intention to do somebody a harm?

MR BIRCH:   Yes, we certainly ‑ ‑ ‑

FRENCH CJ:   They had a look at that in Sanders v Snell, I think, in the Full Court of the Federal Court.

MR BIRCH:   Yes, and the sort of intention that is referred to in Mengel.  Mengel was about the mental elements.  So the fact that we have to establish that mental element is a substantial break upon the expansion of the tort and we say when that mental element is present, then it ought not to be so surprising that a person as a representative in such an Administrative Tribunal could be found liable for their conduct. 

Your Honours, apart from the misfeasance point, we have sued also on the abuse of process claim.  We emphasise, of course, that it is not essential for us to win on both points to sustain our action because these represent overlapping causes of action against the solicitor.  The abuse of process point was disposed of by the Court of Appeal essentially on two grounds.  The first was the non‑party point and what we would say there is that all the judges appear to have treated the decision of the Full Federal Court in Emanuele as binding upon them.

There is expressions by the judges that they do not consider that decision to be clearly wrong.  There is no substantial detailed analysis of whether, as a matter of principle, one should maintain that no party test other than the analysis offered by Justice Macfarlan in which he points out that there is something of an interaction between questions of advocate’s immunity on the one hand and the scope of the abuse tort.

FRENCH CJ:   Is there any discussion anywhere of how abuse of process arises in a purely administrative proceeding?

MR BIRCH:   Your Honour, that was raised before the Court of Appeal and did not feature in their Honours’ judgments.

FRENCH CJ:   Is there any authority for the proposition that you can get relief for abuse of process in an administrative proceeding?

MR BIRCH:   Yes.  Well, I should be careful here.  I do not think we could find an action on the tort of collateral abuse.  The decision in Walton v Gardiner of this Court held that the concept of abuse of process permitted a stay remedy and that was an administrative remedy.  There is reference to the fact that that was granted in an administrative context in – I cannot remember whether it was Mengel or Sanders v Snell, but nothing was said one way or the other. 

Once again, the parties looked to American authorities and those American authorities did not speak with one voice.  We found authorities that supported us.  My learned friend found authorities in his favour as well.  We would say that the balance of authority from the Australian context is suggestive that the tort could apply to an administrative proceeding and, so far as our searches overseas went, we could not say definitively that the weight of authority went one way or the other, so the point is clearly open and the Court of Appeal chose not to rest their judgment on that point. 

Your Honours, when one looks at the no party point, the decisions of this Court in Spautz, the decision of the Federal Court in Emanuele were clearly concerned with cases where the tort was being brought against the instigator of an action.  True, they all speak in terms of it being a tort against an instigator but we say that is for the obvious reason that those were the facts before them.  There is nothing in those decisions that suggests that the courts handing down those decisions were addressing the important questions of principle as to whether you expand the liability out to include legal representatives.

BELL J:    Is it not the point that it is the bringing of the proceedings for a purpose that is foreign that informs the concept of the tort and that necessarily brings you back to the notion that it is a tort committed by the party who institutes the proceedings?

MR BIRCH:   We would say to that point, your Honour, this.  Firstly, that you can abuse process other than by the initiating process.  For example, in the American decision of Farmingdale it was the issuing of the substantial number of subpoenas.  We say that one could abuse process by improper use of any number of interlocutory measures and those interlocutory measures could be deployed by a defendant and the Court of Appeal accepted that there could be an abusive defence, if I could put it that way, as well as an added ‑ ‑ ‑

BELL J:    I think the Chief Justice noted that there is some authority that goes the other way on that, but, yes.

MR BIRCH:   Yes.  So we say it is the taking of steps in the litigation which triggers the tort.  There is no reason why one should look to see whether the initiating process, the statement of claim or information is the only thing which grounds the tort and ignore the other possibilities for abuse.  Once one recognises that, then the conduct of litigation, the steps that are taken are all, we say, sufficient to ground it and there is not in those circumstances any good reason to distinguish between a solicitor and their client.  The client may have only a small understanding of what is being done on their behalf.  A solicitor who, for example, decides to issue substantial numbers of subpoenas in order to gain an illegitimate tactical advantage is abusing the procedures of the court in any normal sense of the word.

BELL J:    And is amenable to professional discipline.

MR BIRCH:   Indeed, but if they have caused substantial loss by that abuse to another party or to a third person, we say why ought their liability be restricted only to the disciplinary field and not to the compensation of the person they have harmed?  Your Honour, the other matter that was raised on the abuse point was the point raised by Justice Macfarlane, that is, whether we had pleaded an appropriate collateral purpose.  That was raised against us in a fashion which the Chief Justice did not think made it appropriate to deal with at all.  It was mentioned only in passing orally in the Court of Appeal, it was not part of the written submissions, but it has been relied upon by Justice Macfarlane and Justice Allsop appears to have adopted that.

We have said in our document, the deficiency in that argument against us is a misconception of the purpose of the proceedings before the Tribunal and hence, from that follows a misconception about what could be collateral.  The Tribunal’s task was to decide a particular question, that is, whether my client was not a refugee – obligations by Australia under Article 1F of the Convention – and it was essentially there to find certain facts; whether he had been guilty of involvement in conduct to the requisite level described in 1F.  It was not like a common law action in which one obtains a verdict and the outcome of the Tribunal hearing was not an order which resulted in an automatic grant to him of a protection visa.

If the purpose of that inquiry was to find whether or not he had engaged in certain sorts of conduct and he was being put to the test of that inquiry where those motivating the action and motivating the conduct of it were indifferent as to whether he had committed Article 1F conduct but were motivated by a desire to see him excluded from Australia on racial or

political grounds that did not trigger 1F, then we say that is clearly collateral.  Now, the deficiency in the Court of Appeal’s handling of this issue is that they have not asked themselves, firstly, what is the proper characterisation of the proceeding and the scope of the remedy, and then from that they have moved to too swift a determination that what was we say collateral was within the scope.  We say that could not have been the case.

FRENCH CJ:   Thank you, Mr Birch.  Yes, we will not need to hear from the respondents.

In this case the applicant for special leave contends that there was error on the part of the Court of Appeal in upholding the summary dismissal of claims against a legal practitioner and his firm representing the Minister for Immigration and Citizenship in proceedings in the Administrative Appeals Tribunal.  The claims raised causes of action for misfeasance in public office and abuse of process.

We do not consider that the prospects of success on appeal are sufficient to warrant the grant of special leave.  Special leave will be refused.

MR BELL:   We would seek costs, your Honour.

MR BEECH‑JONES:   Yes, your Honour, we seek costs.

FRENCH CJ:   Can you resist that, Mr Birch?

MR BIRCH:   I cannot really say anything, your Honour.

FRENCH CJ:   Yes, all right.  Special leave will be refused with costs.  Thank you.

AT 11.47 AM THE MATTER WAS CONCLUDED