Hammerschlag J of the Supreme Court of New South Wales in Edward Moses Obeid Snr -v- David Andrew Ipp [2016] NSWSC 1376 has found at [293]-[297] that Counsel Assisting the Independent Commission Against Corruption (“ICAC”) was entitled to the barristers’ immunity from suit when he cross-examined witnesses in the course of a public inquiry held by ICAC into allegations of corruption.
The plaintiffs had claimed that Counsel Assisting had committed the tort of misfeasance in public office but Hammerschlag J dismissed this claim for a number of reasons including that Counsel Assisting had the benefit of the immunity provided for in s 109(3) of the Independent Commission Against Corruption Act 1988 (NSW) (“ICAC Act”). That subsection provides as follows:
“An Australian legal practitioner assisting [ICAC] or representing a person before [ICAC] has the same protection and immunity as a barrister (within the meaning of the Legal Profession Uniform Law (NSW)) has in appearing for a party in proceedings in the Supreme Court.”
The plaintiffs had submitted that the immunity was only available in relation to work that contributed to a judicial determination of litigation and so was not available to Counsel Assisting because there was no such determination in an ICAC inquiry. In making this submission, the plaintiffs had relied on the plurality judgment in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16; (2016) 90 ALJR 572 which had made it clear that the advocate’s immunity from suit did not extend to acts or advice of the advocate which did not move litigation towards determination by a court.
His Honour, however, rejected this submission saying that the effect of s 109(3) of the ICAC Act was to confer upon a legal practitioner in relation to assisting ICAC, or representing a person before ICAC, the full extent of the traditional immunity which a barrister would have in the Supreme Court, on the basis that the barrister had it there, and that parliament could not have intended a barrister before ICAC only to have immunity where there was a judicial determination because s 109(3) would then have no work to do given that there was never a judicial determination before ICAC.
Accordingly, his Honour concluded that Counsel Assisting had the benefit of the immunity, notwithstanding that there was no judicial determination of litigation in an ICAC inquiry.
Note:
Section 89(1) of the Civil and Administrative Tribunal Act 2013 (NSW) is in similar terms to s 109(3) of the ICAC Act. It provides protection from liability to legal practitioners appearing before the Civil and Administrative Tribunal of New South Wales (NCAT).
