Misfeasance in public office claim against solicitor survives immunity strike out application

The latest advocates’ immunity case is Noori v Leerdam [2008] NSWSC 515. The defendant solicitor was said to have been guilty of misfeasance in public office constituted by work he did for Phillip Ruddock as Immigration Minister in relation to merits review litigation about the plaintiff, an Afghan refugee applicant who rotted in an immigration jail for 6 years despite having committed no crime in Australia. The solicitor sought summary judgment on the basis of advocates’ immunity. The Court declined to give it to him, saying the question of whether immunity could be claimed against allegations of misfeasance in public office or collateral abuse of process was insufficiently obvious to found a summary judgment, and would have to be fully argued at trial.  The relevant part of the judgment says:

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


“Of the various factors advanced to justify the immunity, ‘the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings’  was held to be determinative.”(citation omitted)


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 DOrta 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.

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