Noori v Leerdam & 3 Ors

Noori v Leerdam & 3 Ors - [2008] NSWSC 515 - NSWSC 2008 case summary — Zoe

[20]

by 25 May 2001 (e) The Minister, or officers (presently unknown) in his department or in the alternative Mr Leerdam acting without instructions did not provide any or any sufficient particulars of the disentitling conduct as ordered at any time prior to the conclusion of the hearing before the AAT on 17 August 2001 when those particulars were available to the Minister and/or Mr Leerdam and could have been provided prior to the commencement of the first substantive hearing before the AAT; (f) The Minister and/or Mr Leerdam did not apply to have the AAT's orders of 17 May 2001 varied or set aside; (g) The plaintiff by his solicitor requested full particulars of the disentitling conduct and the nature of the case against the plaintiff including a summary of the identification evidence and other secret evidence on a number of occasions prior to the conclusion of the hearing in the AAT on 17 August 2001. Such particulars were not provided when those particulars were available to the Minister and/or Mr Leerdam and could have been provided; (h) On 16 August 2001 the plaintiff's solicitor referred to the existence of confidential material and he and the plaintiff not getting to know any of it. Deputy President Wright stated that when the particulars were supplied he thought that more factual material would be supplied in a way which would not have breached the confidentiality aspect (of that material). Mr Leerdam stated that it was hard for him to make detailed submissions on the point. The Deputy President asked the plaintiff and his solicitor to remain outside while the question of particulars was dealt with. They remained outside for 25 minutes. The steps laid down pursuant to s 35 of the AAT Act, for a hearing at which neither the plaintiff nor his solicitor were present were not taken. (From paras 51-59 of the judgment of the Full Court of the Federal Court part of what took place appears). In the FAS it is alleged that either on the instructions of the Minister or an unknown officer or in the alternative acting without instructions Mr Leerdam asked for and had a hearing of 25 minutes, during which the plaintiff and his legal advisers were excluded, as to the provision of particulars. At the conclusion of that hearing Deputy President Wright declined to make any further order for the provision of particulars but did not revoke the orders previously made. (j) During the AAT hearing Mr Leerdam applied to have certain evidence taken in the absence of the plaintiff and his solicitor. Mr Leerdam told the AAT that harm would ensue if this course was not followed and succeeded in his application. No sufficient particulars (or summary) of the evidence so taken were provided to the plaintiff prior to the end of the AAT hearing on 17 August 2001. (k) On 12 October 2001 the AAT affirmed the decision of the Minister's delegate of 9 August 2000 to refuse the plaintiff a Protection Visa. (l) On 30 August 2002 the plaintiff applied to the High Court of Australia to have the decision of the AAT reviewed on the basis that he was denied procedural fairness. The matter was remitted to the Federal Court on 6 February 2003. (m) On 30 September 2003 a single judge of the Federal Court dismissed the plaintiff's application. (n) On 26 March 2004 the Full Court of the Federal Court found that the AAT had erred in failing to provide the plaintiff with procedural fairness. It quashed the order of the AAT of 12 October 2001 and required the Tribunal to rehear and determine according to law the plaintiff's application for review of the decision of the Minister's delegate. The Full Federal Court held that these four grounds of denial of procedural fairness had been made good:- (i) failing to require the Minister to provide proper particulars of the allegations made against the plaintiff; (ii) excluding the plaintiff and his legal representative from the 25 minute discussion on 16 August 2001; (iii) failing to give the plaintiff notice of the identification evidence upon which the Deputy President relied; and (iv) failing to inform the plaintiff that allegations had been made about his conduct at Sederat in Kabul in 1989. (The affidavit evidence regarding the availability of evidence from the appellant's sister, wife and members of her family was relevant to this ground). (The plaintiff did not complain in the Federal Court of the confidentiality orders as such nor of evidence being received confidentially in the AAT). (o) During 2004 adequate particulars of the disentitling conduct and the identification evidence were provided to the plaintiff in a piecemeal fashion so that by the commencement of the rehearing before Deputy President Walker on 28 February 2005, the plaintiff had been provided with adequate particulars of the alleged disentitling conduct, all of which were available prior to the commencement of the substantive hearing before Deputy President Wright. (p) A rehearing took place before Deputy President Walker of the AAT over 16 days between 28 February 2005 and 26 August 2005. Deputy President Walker delivered a decision on 14 October 2005 in which it was found that there were no serious reasons for considering that the plaintiff had engaged in any disentitling conduct within the terms of Article 1F. (q) On 31 January 2006 the plaintiff was issued a Protection Visa pursuant to s 65 of the Migration Act and released from the Villawood Detention Centre. (r) Had the plaintiff been provided with adequate particulars of the case against him he would have been in a position to lead the evidence he led in the hearing before the AAT in 2005 and he would have been granted a Protection Visa 4 years earlier.

[41]

30 Mr Leerdam and Sparke Helmore contended in these overlapping and inter-related submissions that (a) Mr Leerdam was not a public officer and did not hold a public office. (b) He was not exercising a power of a public nature. What Mr Leerdam was doing in acting and appearing for the Minister in the AAT proceedings did not involve Mr Leerdam exercising powers attached to a public office. He was discharging his duty as the legal representative of the Minister to his client and the Tribunal. Thus the powers which Mr Leerdam was alleged to be exercising in para 19A of the FAS (and summarised above) were not powers at all. Merely because a person may receive instructions or directions from a public officer does not make the recipient of such instructions a public officer. The formulation of a case, including the provisions of particulars and the assessment of what evidence etc would be deployed in respect of a case do not involve the exercise of any public power but are the consequences of a legal practitioner taking steps pursuant to his or her private retainer with a client to conduct that client's case. (c) The present case is closely analogous to the decision of the Victorian Court of Appeal (VCA) in Cannon v Tahche (2002) 5 VR 317 so far as it related to the prosecutor, a barrister at the private Bar and the instructing solicitor, an employee of the Director of Public Prosecutions. In that case the plaintiff had been convicted of rape and his conviction was quashed after evidence came to light that the complainant had fabricated similar allegations. That information was allegedly deliberately not disclosed to the plaintiff in that case. Later a nolle prosequi was entered by the DPP as to the rape charge. It was held that neither the barrister nor the solicitor had committed the tort of misfeasance in a public office. (d) The essence of the tort involved the misuse of a relevant power which is an incident of a public office; an office cannot be characterised as a public office for the purpose of the tort if no relevant power is attached to it as was the case here. (e) There are decisions in which Courts have identified a public office by reference to the public duties that its holder is required to discharge and it has been suggested that a public office may be identified by reference to the trappings of the office in question and other like matters. However, as an essential element of the tort is the misuse by the holder of the office of a relevant power attached to it, it must follow that the elements of the tort are not sufficiently established unless there is a relevant power attached to the office in question. Having established that the office is a public office for the purposes of the tort, it would be unnecessary for the plaintiff to rely on the trappings or other criteria of a public office. These submissions closely followed Cannon v Tahche at 337-339. (f) Not every position in which the occupier is required to perform a function in which the public has an interest is necessarily a public office for the purposes of the tort. Hence the public duty criterion will not in every case be an appropriate guide as to whether the position in question is a public office: Cannon v Tahche at 339. (g) Mr Leerdam did not in his role as the solicitor acting for and appearing for the Minister in the AAT proceedings exercise any relevant power but performed a function. (h) This tort should be closely confined.

[43]

(c) Cannon v Tahche should not be followed because: (i) the VCA's decision depended largely upon the proper characterisation of the role of a barrister acting as prosecutor in a criminal trial; and (ii) The failure to pass information to the defence was dealt with and characterised by the VCA in terms only relevant to the role of a prosecutor in a criminal trial; and (iii) Although there may be a superficial similarity between the conduct in Cannon v Tahche, namely not giving information to the accused, and the complaints in the present case namely denial of particulars, denial of a summary of evidence, applications to preserve confidentiality and participating in confidential hearings, the legal differences are substantial; and (iv) Mr Leerdam was participating in an administrative enquiry in which he was acting as agent for the decision maker whose decision he was seeking to uphold and the plaintiff was not protected by the rules of evidence or any of the procedural checks or balances of a criminal trial and the standard of proof was not so exacting; and (v) The reasoning in Cannon v Tahche is not addressed to the present case. The approach of the VCA that an essential element of the tort of misfeasance in public office was abuse of a relevant power was too narrow a view of that tort. It sufficed that Mr Leerdam, on behalf of the Minister proceeded with the conduct of the case, including the production of evidence and making submissions despite not having supplied the particulars which had been ordered. (d) The conduct of Mr Leerdam is not excused by the AAT not enforcing its orders, not discharging them and not varying them. When someone is paid a fee from public funds for acting for a Minister and performs a public function and does so by breaching an order lawfully made pursuant to a statute, such conduct is within the tort of misfeasance in public office. That tort extends to acts that are beyond power including those that are invalid for want of procedural fairness: Sanders v Snell (1998) 196 CLR 329 at 344.

[52]

42 The plaintiff relied on the judgment of Brennan J in Mengel at 355 where, after pointing out that the tort was well established, he commented that less clearly established were the principles which define the liability imposed on a public officer who, by use of his position or power, causes loss to another. Brennan J continued (citations omitted): "The starting point is to identify the class of public officers. Best CJ identified the class in these terms in Henly v Mayor of Lyme: 'Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that, is an injury to an individual, an action may be maintained against such public officer. The instances of this are so numerous, that it would be a waste of time to refer to them.Then, what constitutes a public officer? In my opinion, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer. … It seems to me that all these cases establish the principle, that if a man takes a reward, - whatever be the nature of that reward, whether it be in money from the crown, whether it be in land from the crown, whether it be in lands or money from any individual, - for the discharge of a public duty, that instant he becomes a public officer; and if by any act of negligence or any act of abuse in his office, any individual sustains an injury, that individual is entitled to redress in a civil action.' The tort is not limited to an abuse of office by exercise of a statutory power. Henly v The Mayor of Lyme was not a case arising from an impugned exercise of a statutory power. It arose from an alleged failure to maintain a sea wall or bank, the maintenance of which was a condition of the grant to the corporation of Lyme of the sea wall or bank and the appurtenant right to tolls. Any act or omission done or made by a public official in purported performance of the functions of the office can found an action for misfeasance in public office'."

[100]

85 The material available to support the contention that it is reasonably arguable that Mr Leerdam was in the alternative acting either alone or without instructions includes: (a) The terms of the submissions put by Mr Leerdam to the AAT. See 37 above. In addition I was told that on the hearing before Emmett J counsel for the plaintiff was supplied with a redacted version of the transcript of the 25 minute confidential hearing on 16 August 2001 by the Minister/Commonwealth (b) Given the decision maker's duty to use his or her best endeavours to assist the Tribunal to make its decision, and assuming the decision maker wished to protect the confidentiality of the sources of information, it is improbable that the decision maker would determine not to supply the particulars ordered and not to apply to vary or set aside those orders. Meaningful particulars could have been supplied and an informative summary of the confidential evidence and the confidential hearing provided without breaching confidentiality. What is envisaged is the decision maker using his or her best endeavours to assist the Tribunal to make the correct decision. It is difficult, if not impossible, for this to happen if the applicant before the AAT is not given sufficient particulars and information of the case against him so he can endeavour to meet it. (c) The AAT depended upon Mr Leerdam's statement that harm would ensue if certain evidence was not taken in the absence of the plaintiff and his solicitor and his reluctance to deal with the non-supply of particulars except at a hearing at which the plaintiff and his solicitor were not present. The AAT was entitled to proceed upon the basis that before such statement was made and reluctance exhibited Mr Leerdam would have thoroughly investigated the position in each instance and taken into account the applicant's need for procedural fairness including that of knowing the case to be alleged against him. It is no answer to say that the final decisions were made by the AAT when it depended on the material placed before it.

[103]

88 The plaintiff's claim is made in tort for a collateral abuse of process. Mr Leerdam and Sparke Helmore contended that the FAS disclosed no such cause of action and that paras 39-47 should be struck out for these reasons which comprise both points of substantive law and pleading, namely: (a) The tort of collateral abuse of process is one concerned with actions of parties to litigation, most typically the plaintiff or cross claimant. On the authority of Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92 and Lux Gulabrai v Karl Hamer-Mathew (unrep NSWCA. 26 June 1997) it appears that the tort may also be available against a defendant. The right to challenge the correctness of these later decisions was reserved. It is not a tort which is capable of being committed by a person who is not a party to the litigation. (b) The tort of abuse of process is concerned with the use to which proceedings are put. It is the parties who use the court's process not their legal representatives. The gist of the action is the use (necessarily by a party) of the process of the court for a dominant purpose which is illegitimate. (c) From the FAS, especially para 43, it appears that the gist of the complaint of abuse of process is the failure to carry out the acts and obligations there identified (failing to provide adequate particulars, insisting that evidence be given in secret, insisting on a secret 25 minute hearing and refusing to provide a summary of the evidence given in secret). These were all acts done in the course of conducting the proceedings before the AAT. There was no pleading that Mr Leerdam and/or the Minister thereby had the purpose of seeking to gain some advantage, accompanied by particulars of the advantage alleged. (In secret, means in the absence of the plaintiff and his solicitor). (d) The plaintiff's claim alleging commission of the tort of collateral abuse against a non-party to proceedings is without foundation or precedent. (e) The other means of regulating an abuse of process is through the staying of a claim or cross-claim. The stay or remedy for the abuse operates upon the process instituted by one of the parties. (f) Even if the tort could lie against a legal representative of a party to proceedings, the pleading is still deficient. The plaintiff's true complaint is as to the way in which the proceedings in the AAT were conducted: (see the FAS (esp paras 43, 44 and 44B). The manner in which a claim is conducted even if wrongly motivated or unreasonable, does not give rise to the tort of collateral abuse of process. The essential element of the cause of action is that the process is being used for a predominant purpose which is beyond the proper scope of the process. (g) Paras 39, 39A, 40, 44A and 44B confuse motive and purpose. The plaintiff does not allege any advantage that Mr Leerdam would gain or was seeking to gain as a result of his alleged conduct. While the word "purpose" is used in para 39A it is really a pleading of motivation. There is no pleading of a purpose to secure some collateral advantage to either the Minister or Mr Leerdam. (h) While not essential in a stay application, the absence of an allegation of an overt act such as a demand identifying a true collateral purpose is fatal to an action based on the tort of collateral abuse of process. (i) The use of the phrase "and/or Leerdam" in para 39A of the FAS alleging "The predominate purpose of the conduct of the Minister and/or Leerdam … was to give effect to the wishes of Nasiba Akram …". This revealed that the plaintiff was not in a position to make the allegations against Mr Leerdam with any confidence, that they could not be sustained and therefore should not be entertained.

[106]

90 The plaintiff further submitted: (a) The nub of the tort is the use of the proceedings by a person for an improper purpose. Care has to be taken in reviewing the development of the tort to distinguish matters of legal principle and the factual contexts in which the tort usually arises for consideration. Typically, the tort has been considered where the initiator of the earlier proceedings has been alleged to have a predominant purpose which was improper. However, there is authority that the tort of abuse of process is available when the (earlier) process is being used by a defendant for the dominant purpose of effecting an object not within the proper scope of the proceedings. A defendant can have an honest belief in his defence yet conduct the defence in such a manner as to commit the tort. (b) If a party has an improper purpose and if that improper purpose is shared by the solicitor who joins with the party in furthering it then the action lies against each of them. (c) Those who actually used the proceeding were the Minister and the solicitors. The plaintiff has pleaded that the purpose of the Minister and that of Mr Leerdam was a shared purpose and they both acted in a fashion which resulted in an abuse of process and they both used the proceeding in their respective fashions. As pleaded, it was alleged that there was an improper carrying forward of the improper purpose of Ms Nasiba Akram by the Minister or Mr Leerdam. The solicitor acted as the agent for the Minister and they both had an improper purpose that they were carrying forward. (d) Ms Nasiba Akram's purpose was to prevent people like Mr Noori, that is people from northern Afghanistan who had been sympathetic to the Soviet regime from being able to reside in Australia. That purpose was driven by racial hatred and by the desire to exclude people from Australia because of their political views. She brought the case to the Minister and Mr Leerdam and they accepted and took the matters that she gave to them and used them. The Minister and Mr Leerdam, aware of her motivation and purpose, carried forward her purpose. This is not much different from a solicitor who allows himself to be used by his client. The Minister and the solicitor allowed themselves to be used by a third party. As a matter of principle the proceedings were used for a predominantly improper purpose by the Minister and Mr Leerdam. The Minister and Mr Leerdam adopted the dominant and improper purpose of Ms Akram and used the processes of the AAT to deny the plaintiff a fair hearing.

[107]

(e) The Minister and/or Mr Leerdam were recklessly indifferent as to whether there was any reasonable basis for the allegations of Ms Akram and recklessly indifferent as to whether or not by promulgating those allegations they were carrying forward Ms Akram's improper purpose. (f) The plaintiff's pleading in regard to the state of mind and intentions of the Minister and Mr Leerdam is sufficient to establish the tort of abuse of process. While the plaintiff accepts that the motivations of the Minister and Mr Leerdam are not the same as those of Ms Akram where a party carries through an administrative process allegations made by others and affecting the liberty of the applicant (plaintiff) and is recklessly indifferent to the truth of the allegations and as to whether or not they have been made by the informant for malicious reasons, and allows himself, through that improper conduct, to become the instrument of another's malice, then he makes himself liable to be sued for abuse of process. With necessary modification the same principle applies to a solicitor. [It is acknowledged that the Minister, Departmental officers and the Minister's solicitors are likely to have to rely on third parties to supply information as to the conduct of visa applicants in foreign countries. Material supplied by third parties, whether officially or informally may be unreliable. It is likely to be hearsay. Before advancing any material supplied it will need to be vigorously examined, investigated and assessed, difficult though that may be. Some hearsay may be credible. General allegations without particulars are well nigh impossible to meet] (g) There is some authority that in addition to improper purpose the plaintiff in an action for abuse of process should also establish some overt act by the defendant. In the case of Mr Leerdam the overt act is the persistence in leading evidence and making submissions at the hearing without having ensured compliance with the Tribunal's direction in regard to particulars and the engaging in unfair tactics particularised in the FAS. Review of Authorities 91 Questions of abuse of process can arise in various ways, one dramatic example of which is found in Hunter v Chief Constable of West Midlands Police 1982 AC 529 at 536 per Lord Diplock.

[151]

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."

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