Advocates’ immunity is a defence to intentional torts

Leerdam v Noori [2009] NSWCA 90 is authority for the proposition that the kind of conduct immunised from suit by advocates’ immunity includes intentional conduct (see [145]), though it is not a defence to  actions for the tort of malicious prosecution (see [146] citing McHugh J in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [99]).  Certain intentional torts, however, focus on the putative tortfeasor’s conduct in commencing, rather than prosecuting, proceedings.  The immunity is no defence against this kind of claim, because the impugned conduct does not come within the ‘intimately connected’ test which seems to be assumed to have some ongoing utility post-D’Orta-Ekenaike’s Case.  In this case, Mr Noori sued the Immigration Minister and his solicitors and their employee who handled the matter.  The solicitors were sued for misfeasance in public office and collateral abuse of process.  The Court of Appeal held that the claims should have been summarily dismissed for reasons other than the immunity defence they relied on.  Nevertheless, the Court considered the position of the immunity defence, holding that the application of the law of advocate’s immunity to the torts of misfeasance in public office and collateral abuse of process is sufficiently uncertain as to tell against summary disposition by reference to the defence.  On this point, Justice of Appeal Macfarlan stated the Court’s position.  Chief Justice Spigelman and President Allsop agreed.  His Honour said:

‘143 The issue which arose on the summary judgment/strike out application in relation to [the advocate’s immunity] defence was whether the immunity extends beyond immunity to claims in negligence, to immunity in relation to intentional torts, in particular the torts of misfeasance in public office and collateral abuse of process.

144 Having referred to D’Orta, Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543, Taylor v Serious Fraud Office [1998] UKHL 39; [1999] 2 AC 177 and other authorities, the primary judge, in a passage which commented on the causes of action sued upon as well as the question of immunity, said:

“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. …

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 the 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 of the torts are not fixed. They are still developing. The plaintiff has advanced a reasonably arguable case on each. “

145 In my view D’Orta is authority which this Court is bound to apply that as a matter of principle advocate’s immunity is capable of extending to intentional torts. However, the immunity only relates to the conduct of a case in court and to work done out of court which leads to a decision affecting the conduct of the case in court. On that ground the immunity will rarely if ever provide a defence to claims for damages for the commission of the torts of misfeasance in public office or collateral abuse of process, assuming that these torts are confined in the ways to which I have referred earlier.

146 The point is illustrated by analogy with the tort of malicious prosecution. The immunity does not apply to this tort (D’Orta at [99] per McHugh J). This is not because the tort is an intentional one but because its commission depends upon the knowledge and intent with which a prosecution is brought and maintained. Prima facie at least, the inquiry is not as to conduct of a case in court (or preparatory work affecting it) and the immunity defence is therefore inapplicable. The position is otherwise, for example, with an action founded on “false and defamatory statements made maliciously in the course of judicial proceedings” to which advocate’s immunity (as well as that of a judge and witness) provides an answer (D’Orta at [99]).

147 Likewise, because the foundation of the tort of collateral abuse of process is the existence of a collateral purpose in commencing or maintaining proceedings, it would be unlikely that an action for damages for commission of that tort would be founded upon the conduct of a case in court (or preparatory work affecting it). Of course, if the views I have expressed as to the scope of the tort of collateral abuse of process were wrong and the tort extended, as Mr Noori contends, to conduct in court motivated in the way he alleges, the scope for the immunity defence would be much greater.

148 The rationale for the immunity identified by the High Court in D’Orta, namely, “the principle that controversies once resolved are not to be reopened except in a few narrowly defined circumstances” (at [45], see also [25]) is as applicable to intentional torts relating to conduct in court as it is to negligence. This principle was described as the “central justification” for the advocate’s immunity (at [45]).

149 Statements made in the plurality judgment in D’Orta indicate that the immunity is not confined to claims in negligence:

(a) After noting the reference in Giannarelli to “the potential competition between the duties which an advocate owes to the Court and the duty of care to the client”, their Honours said:

“26 The second matter assumes, wrongly, that the duties might conflict. They do not; the duty to the court is paramount. But, more than that, the question of conflicting duties assumes that the only kind of case to be considered is one framed as a claim in negligence. That is not so. The question is whether there is an immunity from suit, not whether an advocate owes the client a duty of care.”

(b) After referring to the development of immunities from suit for witnesses, judges and advocates, the judgment referred to the fact that witness’s immunity applies even if the witness’s conduct was deliberate and malicious [39]. Their Honours did not suggest that advocate’s immunity is any different in that respect.

(c) Their Honours said in [85] that “an advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court” (emphasis added).

150 In Giannarelli v Wraith, Mason CJ and Dawson J both referred with approval to the decision in Munster v Lamb [1883] 11 QBD 588 which applied the principle of advocate’s immunity to statements made in court by counsel, even if made maliciously and without reasonable or probable cause (at 569, 595-6).

151 However it is difficult to be adamant about the application of advocate’s immunity to the tort of collateral abuse of process. This is illustrated by the House of Lords decision in Roy v Prior [1971] AC 470 where it was alleged that the defendant, when acting as solicitor for a party in earlier proceedings, had, for a collateral purpose, procured the issue of a subpoena to give evidence to the plaintiff doctor. The defendant had given evidence in the earlier proceedings in support of the application for the issue of the subpoena. It was held by the House of Lords that the subsequent proceedings for abuse of the process of the Court were not to be defeated by the fact that one step in the abuse involved the giving of evidence.

152 On this view, an application made in court by an advocate for the issue of a subpoena would, if made for a collateral purpose, be susceptible to an action for collateral abuse of process, with no immunity being applicable. It seems to me however that D’Orta provides support for a contrary view, that is, that the conduct would be covered by the immunity. An intermediate case could be imagined where the application for the subpoena was made through the court registry, outside a court hearing, but a consequential aspect, perhaps as to service of the subpoena, involved a hearing in court.

153 Further, Lord Hoffman in Taylor v Serious Fraud Office referred to English decisions which indicated to his mind that there was “some dispute over whether [the principle of immunity] applies to the emergent tort of abuse of public office” (at 215F).

154 No High Court decision deals directly with the availability of the immunity defence in relation to the torts of abuse of process and misfeasance in public office.

155 In these circumstances, like the primary judge, I take the view that there is insufficient certainty about the scope of the immunity to summarily dismiss or strike out the proceedings, so far as they relate to the appellants, upon the basis of the immunity defence. In any event, if I am wrong in the views I have taken as to scope of the tort of misfeasance in public office or that of collateral abuse of process, the precise ambit of those torts, as properly understood, would have to be considered in the context of the facts which are proved. Accordingly, I do not consider that it would be appropriate to summarily dismiss or strike out upon the basis of the immunity defence.’

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