Express law No. 73

25 June 2008

Lawyers acting for government potentially liable for
misfeasance in public office

This Express Law examines uncertainty as to
the application of the legal professional immunity in
relation to the tort of misfeasance in public office
and abuse of process committed during an administrative
review, and the dangers of failing to provide procedural
fairness or comply with a tribunal's orders when
conducting litigation on behalf of the Commonwealth.

In an interlocutory judgment in Noori v Leerdam and
3 Ors [2008]
NSWSC 515
in the New South Wales Supreme
Court, Smart AJ has found that the plaintiff, an Afghan
refugee, has advanced a reasonably arguable case of misfeasance
in public office and abuse of process against the lawyer
from a private law firm representing the then Minister
for Immigration, Mr Philip Ruddock (the Minister) during
proceedings in the Administrative Appeals Tribunal (AAT).

The case raises a number of issues which will be relevant
to Australian Government departments and agencies involved
in administrative review proceedings, and in-house and
external lawyers who act in such proceedings.

Background

The plaintiff had applied for a protection visa under
s 195 of the Migration Act 1958 (Cth), but his application
was denied. He was informed that his application was denied
because there were serious reasons for considering that
he had engaged in disentitling conduct within the meaning
of Article 1F of the 1951 Convention Relating to the
Status of Refugees. The 'serious reasons',
which were not divulged to the plaintiff, were based on
allegations forwarded to the Minister by a member of the
Afghan community that the plaintiff had engaged in war
crimes and crimes against humanity. The plaintiff alleged
that the member of the Afghan community was motivated by
malice and a belief that anyone sympathetic to the Soviet
regime that was in power in Afghanistan between 1979 and
1989 ought to be denied a protection visa.

The plaintiff applied to the AAT to have the decision
reviewed. In the course of the proceedings the AAT made
an order that the Minister provide full particulars of
the precise crimes relied upon as disentitling conduct.
These particulars were not provided prior to the hearing.
Further, when the issue of the particulars was addressed
at the hearing, the plaintiff and his lawyer were asked
to remain outside the hearing room without, the plaintiff
alleged, the steps set out in s 35 of the Administrative
Appeals Tribunal Act 1975 (the AAT Act) for a hearing
at which neither the plaintiff nor his solicitor were present
being taken. The order requiring the provision of full
particulars of the alleged disentitling conduct was not
vacated or varied but the plaintiff was not provided any
further details of the alleged disentitling conduct, nor
a summary of what had occurred whilst he was excluded from
the hearing. The plaintiff claimed this prevented him from
being able to answer the case against him. The AAT affirmed
the decision of the Minister to refuse the protection visa.
The plaintiff appealed.

The Federal Court quashed the decision of the AAT, on
the basis that the plaintiff had been denied procedural
fairness, and remitted the matter to the AAT for rehearing.
During the rehearing, adequate particulars were provided
to the plaintiff and he was able to respond to these allegations.
On 14 October 2005 the AAT concluded that there were no
serious reasons for considering that the plaintiff had
engaged in any disentitling conduct. The plaintiff was
released, six years after initially being detained, on
31 January 2006.

The plaintiff's claim

The plaintiff then commenced proceedings in the Supreme
Court of New South Wales alleging misfeasance in public
office and abuse of process against the Minister, the Commonwealth
and the Minister's legal representatives in the AAT
proceedings (the Minister's previous lawyers). In
framing his claim the plaintiff relied primarily on the
failure to provide adequate particulars of the plaintiff's
alleged disentitling conduct and otherwise afford him procedural
fairness.

Smart AJ's decision

The Minister's previous lawyers sought orders that
the proceedings be dismissed as against them or, alternatively,
that the further amended statement of claim be struck out
as against them (the strike-out application).

Misfeasance in public office

The central issue relating to the misfeasance in public
office claim raised by the strike-out application was whether
or not the Minister's previous lawyers could be deemed
to be a public officer.

The Minister's previous lawyers argued that the
solicitor was only discharging his duty as a legal representative
of the Minister and that simply receiving instructions
from a public officer does not make the recipient of such
instructions a public officer.

However, Smart AJ emphasised that the solicitor for the
Minister was required to perform an important function
in which the public had an interest. He reiterated that
heavy responsibilities attached to the solicitor's
position, including organising to have the particulars
provided to the plaintiff. He relied on the judgments of
Best CJ in Henly v Mayor & Burgesses of Lyme (1828)
130 ER 995 at 1001 and Brennan J in Northern Territory
of Australia v Mengel (1995) 185 CLR 307 to support
his view that it is reasonably arguable that the solicitor
was a public officer.

He stated:

Where it is established that in an administrative review
there has been a denial of procedural fairness by the
deliberate failure by the Minister and his agent/solicitor
to supply the particulars ordered of disentitling conduct
with the consequence that an applicant for a Protection
Visa has remained in detention for an extended period
(4 years) there is a reasonably arguable case that the
person responsible for the failure to supply the particulars
has committed the tort where, as here, it was reckless
for that person not to appreciate that the probable result
of the failure to supply the particulars ordered would
be that the plaintiff would not be able to meet the serious
allegations made against him and would spend a lengthy
period in detention.

Smart AJ appeared to conclude that a legal representative
of a Minister arguably occupies a public office simply
because he or she is able to bring a measure of independence
to bear in the performance of the representation. However,
in our view, the source of the required independence must
inhere in or derive from the public nature of the office.
The independence which a legal representative is able to
exert has nothing to do with performance of any public
office. It is an aspect of every solicitor–client
relationship. It will therefore be interesting to see if
the plaintiff's claim based on misfeasance in public
office is ultimately successful.

Abuse of process

The second cause of action relied upon by the plaintiff
was abuse of process. This claim was framed on the basis
that the Minister and/or his previous lawyers acted to
give effect to allegations made against the plaintiff by
the member of the Afghan community in their non-compliance
with the order to provide particulars in the AAT proceedings.
The plaintiff claimed that the Minister and/or his lawyers
were aware or were recklessly indifferent as to the malicious
motivations for the allegations.

The cause of action of abuse of process is concerned with
the use of the process of the court for a dominant purpose
which is illegitimate. The criterion is whether the improper
purpose is the predominant purpose of the moving party
(William v Spautz (1991–1992) 174 CLR 509,
529).

The Minister's previous lawyers submitted that they
could not be liable for an abuse of process because the
tort only applied to parties to a litigation. However,
Smart AJ held that it is possible for an action for abuse
of process to be available against a non-party to proceedings,
but acknowledged that these instances will be rare.

Smart AJ also rejected submissions put forward by the
Minister's previous lawyers that there was no case
against them because the plaintiff had failed to identify
any advantage they would gain as a result of the solicitor's
alleged conduct. His Honour suggested that it was sufficient
that they were advantaged by preventing the applicant from
mounting an effective defence to the Minister's case.

Legal professional immunity in administrative processes

The Minister's previous lawyers argued that they
were immune from suit. Section 60(2) of the AAT Act 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.

In D'Orta-Ekenaike v Victoria Legal Aid (VLA) (2005)
223 CLR 1, the High Court declined to reconsider its opinion
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'. Smart
AJ distinguished these cases on the basis that in the present
case the plaintiff was not complaining about the conduct
of his own solicitor.

Smart AJ considered that the underlying justification
for the immunity lies in the importance of achieving finality
in the quelling of disputes by the exercise of judicial
power (at 121; Giannarelli v Wraith). His Honour
queried the applicability of such justifications to administrative
processes which do not have the same degree of finality
as court processes.

Smart AJ (at 143) attached considerable weight to the
judgment of Lord Hoffman in Taylor v Director of the
Serious Fraud Office [1999] 2 AC 177, 215 where it
was observed in obiter that the immunity does not apply
to malicious prosecution. His Honour concluded that it 'has
not been authoritatively resolved whether the immunity
applies in the case of the tort of misfeasance in public
office or that of collateral abuse of process committed
during an administrative review' (at 144) and refused
to strike out the plaintiff's claim on the basis
of legal professional immunity.

Implications

The decision places considerable emphasis on the responsibility
of an administrative decision maker and his or her lawyers
to accord procedural fairness to an applicant. To our knowledge
it raises for the first time the possibility of a claim
for misfeasance in public office and/or abuse of process
against both the decision maker and his or her lawyers
if this does not occur.

Even where sensitive information is involved in an administrative
decision, departments and agencies should be very careful
to reveal as much about their concerns about an applicant
as they possibly can without compromising the sensitive
information. Careful, restrained and precise redacting
of sensitive information and summarising sensitive information
in a non-sensitive way are two ways this can be done.

The decision is also a timely reminder of the importance
of abiding by courts' or tribunals' orders
or directions and seeking a vacation or variation of an
order or direction if there is a good reason why it cannot
be complied with.

For further information please contact:

Andrew Berger
General Counsel
T 02 6253 7405 F 02 6253 7384
andrew.berger@ags.gov.au

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