Dear Colleagues;
The NSW Court of Appeal in Leerdam & Anor v Noori & Ors [2009] NSWCA 90 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/90.html holds that a solicitor acting for the Minister in an immigration case could not be sued for misfeasance in public office, as he did not hold a "public office". List member Tina Cockburn's article (with M Thomas) “Personal liability of public officers in the tort of misfeasance in public office” (2001) Torts Law Journal 80, 245 is cited by Spigelman CJ at [3] as helpful in their decision.
For those interested in the niceties of precedent in Australia, all members of the court who address the issue do make substantive arguments, but they also generally acknowledge that they are "following" (my words not theirs) the decision of the Victorian Court of Appeal in Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317, which they are obliged to do these days since the High Court's decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 unless convinced that it is "clearly wrong"- see [10], [40]; [65]; [119].
There are also some comments in the case on the tort of "abuse of process", but the majority decline to discuss the other interesting question as to whether "advocate's immunity" (applicable these days of course pretty well only in Australia) applies to a lawyer in these type of proceedings.
Regards
Neil Foster
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931