[6.47]
Although
sheriffs, bailiffs and other ministerial officers of the court are not exempt
from liability for their tortious acts, nevertheless it may be a defence to an
action in false imprisonment, trespass or conversion that the act was done in
the execution of judicial process[1]
This defence may also be available where negligence is raised as a cause of action.
The availability of the defence stems from the fact that such persons are
charged by law with the service and execution of court processes,[2]
which not only precipitate but often necessitate invasions of personal and
property rights.
The position at common law is that a sheriff or other
officer of the court, acting strictly within the authority of a warrant issued
by a superior court of record, is protected although the judgement on which a
warrant is issued is invalid.[3]
So, a sheriff who effects a dispossession of the tenant of rent-controlled
premises, and is then sued in trespass by the tenant, will have a defence if he
or she produces the authority of the court to effect dispossession, although it
may be that in the circumstances the tenant is lawfully entitled to possession.[4]
Nor is the sheriff affected if the judgement is subsequently reversed.[5]
But this does not mean that a sheriff is protected if the warrant itself is
invalid; that is, where the judgement is valid but there is no legal authority
to issue the particular warrant.[6]
Certainly, if the warrant is not signed and marked in the required manner[7]
and, probably, whenever the warrant does not bear on its face the accepted
characteristics of a valid warrant[8]
and, possibly, whenever the warrant, as distinct from the judgment on which it
is based, is void and not merely voidable, the sheriff has no protection.[9]
Where the process is issued out of an inferior court, the
officer acting under it is protected if the subject matter of the suit is
within the general jurisdiction of the court and the warrant is regularly
issued, even though the judgment itself might not be sustainable.[10]
In Ward v Murphy an officer was held
not liable for executing a writ not bad on the face of it[11]
although issued without jurisdiction unless the officer knew of the defect.[12]
Moreover, the officer was not required to do more than plead the writ itself,
and to allege that it was issued out of an inferior court and was not bad on
its face. It would then be up to the plaintiff to show that the officer knew of the
defect in jurisdiction. Of course, if the warrant itself is bad in form, the
officer executes it would be presumed to know of this and would have no
defence.[13]
A private person who irregularly obtains a warrant is not
protected in executing it.[14]
If the warrant is void, then such a person has no defence.[15]
If it is voidable the private individual is protected unless ‘the process has
been set aside by reason of some misconduct, or at least some irregularity, on
the part of the person suing it out’.[16]
[6.48] Any defendant, whether an
official or private individual, who fails to act in accordance with the process
will be liable. So, for example, the bailiffs in O’Connor v Sheriff of Queensland[17]
and Harvey v Birrell[18]
were held liable for seizing goods of persons not named in the writs, the court
in the latter remarking[19]
that ‘no amount of bona fides on the part of an officer of the Court who made a
mistake of this kind could disentile the plaintiff to the damage he had
actually sustained’.[20]
An official who properly seizes goods but who thereafter disposes of them in an
unauthorised way will also be liable.[21]
Where a mining plant worth probably £400 was seized pursuant to a writ of fieri facias and sold for £10 in
order to satisfy a debt of £116, the sheriff in Smith v Colles[22]
was held liable in negligence for proceeding with the sale with what was
described as ‘disastrous speed’, leading to the sacrifice of valuable property.
By comparison, the sheriff in Anderson v
Liddell[23]
was held not liable for selling land at a public auction for a price that may
have been low but was not illusory or unfair. And in Clarke v Cowper[24] an action in trespass was not
maintainable against a sheriff who, acting under writ of habere facias, handed over to a successful plaintiff in an action
for ejectment more land than the latter was entitled to; the remedy of the
person aggrieved, if any, was by writ of restitution.
Where a warrant is expressed to be valid for a named
period only, action taken after it has expired will render the officer liable.[25]
This would not, however, preclude a sheriff from taking action to re-arrest an
escaped prisoner, provided the initial arrest took place timeously. But a
sheriff who thereafter placed the prisoner in gaol on his own responsibility instead
of taking him before the court to answer his contempt, as directed by the
warrant, was liable in an action for false imprisonment.[26]
The courts thus insist on strict adherence to the terms of the process.
Similarly, the sheriff in Copeland v Buck,[27]
who lodged his prisoner in the Adelaide gaol, despite a request by the latter
to be taken before a
magistrate and in
the face of a warrant which allowed the sheriff to take such a step only if the
prisoner did not make such a request, was held liable for false imprisonment.
In general, these rules seem to strike a fair balance
between the necessary protection of private rights and the proper security
which bailiffs, sheriffs and like ministerial officers require in performing
their duties.
[1] The meaning
of ‘judicial process’ was discussed by Hardie Boys J in Simpson v Attorney-General (Baigent’s Case) [1994] 1 NZLR 667 at
696. The term was held to include a search warrant regardless of whether it has
been validly issued: Auckland Unemployed
Workers’ Rights Centr Inc vAattorney-General [1994] 3 NZLR 720 at 728 per
Hardie Boys J.
[2] This is
sometimes reflected in legislation: see, eg, Supreme Court Act 1933 (ACT) s 50,
which sets out the powers and functions of the sheriff.
[3] Brown v Watson (1871) 23 LT 745
[4] Williams v Williams and Nathan [1937] 2
All ER 559 (CA).
[5] Ives v Lucas (1823) 1 C & P 7.
[6] Andrews v Marris (1841) 1 QB 3
[7] Hooper v Lane (1847) 10 QB 546 at 560-1
(obiter).
[8] As to the
characteristics of a valid search warrant, see R v Sanders [1994] 3 NZLR 451.
[9] See the
judgments in the last two cases cited and Denver
v Cook (1903) 88 LT 629.
[10] Andrews v Marris (1841) 1 QB 3.
[11] (1937) 38 SR
(NSW) 85 at 97 per Davison J.
[12] See London Corporation v Cox (1867) LR 2 HL
239 at 163 per Wiles J (obiter); Watson v
Bodell (1845) 14 M & W 57 at 70 per Parke B (ratio); Robertson v Wwestern Australia (1997) 92
A Crim R 115 (WA SC).
[13] Carrat v Morley (1841) 1 QB 18.
[14] Painter v Liverpool Oil Gas Light Co (1836)
3 Ad & El 433; Codrington v Lloyd (1838)
8 Ad & El 449.
[15] Brooks v Hodgkinson (1859) 4 H & N
712.
[16] Wwilliams v Smith (1863) 14 CB NS 596 at
624 per Willes J.
[17] (1892) 4 QLJ
213.
[18] (1878) 12
SALR 58.
[19] Ibid at 59
(the action was for trespass on premises, seizure and sale).
[20] And see Simpson v Attorney-General [1994] 3 NZLR
667 at 687-8 (wrong address).
[21] Jelks v Haywood [1905] 2 KB 460; cf Donnell;y v Amalgamated Television Services
Pty Ltd (1998) 45 NSWLR 570 (unlawful use of video obtained in execution of
search warrant).
[22] (1871) 2 VLR
195.
[23] (1968) 117
CLR 36.
[24] (1889) 10 LR
(NSW) 106.
[25] Watson v Bodell (1845) 14 M & W 57.
[26] Wall v Meyrick (1879) 5 VLR 260. The
sheriff may be liable to pay the damages sustained by the person at whose civil
suit the prisoner was taken into custody if that prisoner escapes out of
custody: see, eg, Supreme Court Act 1986 (Vic) s 120(2).
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