15 Jul 2009

Government lawyers and misfeasance in public office

by Tigiilagi Eteuati

The actions of private sector lawyers performing professional services for governments will not amount to the tort of misfeasance in public office. It is likely that the same result would apply for government lawyers, at least where they are not exercising particular powers attached to particular offices.

The decision of Justice Smart in Noori v Leerdam [2008] NSWSC 515 caused quite a stir in refusing an application to strike out an action for misfeasance against a solicitor from a private law firm representing a Federal Government Minister in proceedings before the Administrative Appeals Tribunal in relation to his conduct of those proceedings.

It was great relief, then, for private sector lawyers to read that the New South Wales Court of Appeal (Leerdam v Noori [2009] NSWCA 90) had allowed an appeal from Justice Smart's decision. What implications this decision has for lawyers employed by the government is unclear, although there are strong indications that a government lawyer providing services of a professional character will not be liable to misfeasance actions.

The application and the hearing in the AAT

Mr Noori's application for a protection visa was refused by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs, so he sought review in the Administrative Appeals Tribunal.

Mr Leerdam, a solicitor from a private law firm contracted to provide legal services to the Minister, applied for, and was granted, an order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) preventing certain material from being disclosed to Mr Noori or his legal representative. The Tribunal subsequently directed that the Minister provide certain particulars to Mr Noori. The direction, however, was not complied with and not enforced by the Tribunal.

In addition, at the hearing of the matter before the Tribunal, Mr Noori and his representative were asked to leave the hearing room at Mr Leerdam's request so that Mr Leerdam could make submissions to the Tribunal in their absence. Following the hearing, the Tribunal affirmed the Minister's decision. The Tribunal's decision was eventually quashed by the Full Federal Court on the basis that the failure by the Tribunal to enforce the direction to provide particulars and the exclusion of Mr Noori and his representative from the hearing constituted a breach of procedural fairness. On a rehearing, the Tribunal issued a protection visa to Mr Noori.

Mr Noori sues

Mr Noori brought an action in the New South Wales Supreme Court against Mr Leerdam, the law firm for which he was then working, former Immigration Minister Philip Ruddock, and the Commonwealth, claiming damages for misfeasance in public office and abuse of process. In relation to the misfeasance claim, Mr Noori alleged that Mr Leerdam was a public officer who was exercising a power of a public nature when representing the Minister before the Tribunal. The alleged misfeasance was Mr Leerdam's failure to provide him with particulars.

On an application by Mr Leerdam and the law firm to strike out the proceedings, Justice Smart held that both of the grounds raised by Mr Noori were reasonably arguable. In addition, he also refused to strike the matter out on the basis of advocate's immunity claimed by Mr Leerdam. Justice Smart found that the question of whether the immunity applied to cases of the torts of misfeasance in public office or abuse of process had not been authoritatively resolved.

The decision of the Court of Appeal on misfeasance in public office

The Court of Appeal (Chief Justice Spigelman, President Allsop and Justice Macfarlan) allowed the appeal and ordered that the proceedings be summarily dismissed as against Mr Leerdam and the law firm.

In exercising his functions as the solicitor acting on behalf of the Minister in the Tribunal proceedings, Mr Leerdam's actions did not, the Court said, attract liability for misfeasance in public office. Although the elements of the tort have not yet been defined precisely, it was accepted by the Court that an action for misfeasance cannot succeed unless the alleged conduct is by a public officer in the course of performing a public power. The action in this case could not succeed because, in performing his functions, Mr Leerdam was not a public officer performing public functions. Mr Noori's application for special leave to appeal to the High Court has not yet been heard.

What is a public office?

The Court recognised that there had not yet been an authoritative statement of what constitutes a public office for the purposes of misfeasance. For Chief Justice Spigelman, the concept of an "office" connotes "an official position to which continuing functions or duties are assigned. Those duties or functions must be of a 'public' nature". That is not to say that the performance of a contractual function by a public officer cannot attract liability under the tort, however, for the Chief Justice, "a person whose capacity to act is entirely a creature of contract with the executive arm of government is not … thereby constituted a public officer for the purposes of the tort".

As Justice Macfarlan said, it is clear that "the tort is concerned with the misuse of public powers or authorities". If the tort were not limited in that way, "[t]here would be the potential for a multitude of actions to be brought by members of the public in relation to the conduct by public servants and public contractors of their day to day duties". For Justice Macfarlan, that would involve "an unwarranted extension of the tort".

For the Court of Appeal, Mr Leerdam's role was entirely contractual. More importantly, he was not appointed to a position or office and was not given any public power or function: his functions were not of a public nature - they were purely professional in character. The fact that he was representing the Minister in the Tribunal did not affect that characterisation of his function, nor did the fact that he performed important functions involving a matter of public interest or that he owed duties to the Tribunal.

What about in-house government lawyers?

The Court of Appeal indicated its agreement with the previous decision of the Victorian Court of Appeal in Cannon v Tahche (2002) 5 VR 317. In that case, the Victorian Court of Appeal held that a barrister from the independent bar appearing as a prosecutor, and the instructing solicitor employed by the Office of Public Prosecutions, were not public officers for the purposes of the tort. On that authority, Chief Justice Spigelman said, the result in Leerdam v Noori would have been no different "if the Minister had been represented by a solicitor employed by the Government".

Thus, it would appear that the Court of Appeal was prepared to accept that a lawyer employed by the government would not be subject to the tort of misfeasance, at least when providing litigation services for the government. It might also be said that such a conclusion would apply to the performance of other professional services by government lawyers. However, it was unnecessary to decide that issue in Leerdam v Noori, and there remains some uncertainty in this respect, as the Chief Justice indicated that "[i]t may well be that the rationale of 'abuse of power' should extend the tort in that way". It may be that different considerations will be taken into account where a government lawyer is exercising particular powers or duties attached to a particular office.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.