unitedstatessecurities

  • Subscribe to our RSS feed.
  • Twitter
  • StumbleUpon
  • Reddit
  • Facebook
  • Digg

Thursday, November 1, 2012

LAW OF TORTS FOURTH EDITION—R.P. BALKIN J.L.R. DAVIS—EXECUTION OF PROCESS

Posted on 12:23 AM by Unknown


[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 amagistrate 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).
[27] [1938] SASR 214.
ETHICAL DONATORS AND COMMUNITY MEMBERS REQUIRED, TO FILL THIS SPACE WITH YOUR POLITICAL SLOGANS, ADVERTISING OFFERS, WEBSITE DETAILS, CHARITY REQUESTS, LECTURE OPPORTUNITIES, EDUCATIONAL WORKSHOPS, SPIRITUAL AND/OR HEALTH ENLIGHTENMENT COURSES. AS AN IMPORTANT MEMBER OF THE GLOBAL INDEPENDENT MEDIA COMMUNITY,  MIKIVERSE LAW HONOURABLY REQUESTS YOUR HELP TO KEEP YOUR NEWS, DIVERSE,AND FREE OF CORPORATE, GOVERNMENT SPIN AND CONTROL. FOR MORE INFORMATION ON HOW YOU MAY ASSIST, PLEASE CONTACT: themikiverse@gmail.com 
Email ThisBlogThis!Share to XShare to FacebookShare to Pinterest
Posted in 'Australia is a Crime Scene' - Robbie Thorpe, 100% Australian Independent Media, Mark McMurtrie, mikiverse, Mikiverse Headline News, Mikiverse Health, Mikiverse Law, Mikiverse Politics, Mikiverse Science | No comments
Newer Post Older Post Home

0 comments:

Post a Comment

Subscribe to: Post Comments (Atom)

Popular Posts

  • SEND THIS DOCUMENT TO THE JUDGE AND WATCH YOUR COURT CASE VANISH!
    http://freedomfromgovernment.us/?p=725  Taken from FREEDOM FROM GOVERNMENT webpage. Use the following freedom affidavit to let them know tha...
  • DECLARING YOURSELF AS A SECURE PARTY CREDITOR
    Published February 12, 2012 | By admin In the review of the steps necessary for filing your Redemption, the main and primary focus, for ...
  • JEAN KEATING ORLANDO FLORIDA SEMINAR
    Transcribed by Rockney Martineau 12/25/04 Jean Keating Work Shop   ______________________ INTRODUCTION By:   Michael Young               ...
  • THE UNIFORM SECURITIZATION SCHEME-THE BIRTH SCAM
    PLEASE NOTE: I do not know who authored this, but, think that it was a biological composition with the calling of Bill. I was presented with...
  • BEAT THE LAW "HOW TO GET DIPLOMATIC IMMUNITY"
    ALL CONTENTS OF THIS WEBSITE OR FROM COL WILSON IS FOR INFORMATIONAL PURPOSES ONLY. USE AT YOUR OWN RISK. ALL RIG...
  • COSMIC BLUEPRINTS OPEN FORUM TONY Z AND KATE OF GAIA
    Listen to internet radio with Critical Mass Radio on Blog Talk Radio ETHICAL   DONATORS  AND  COMMUNITY MEMBERS  REQUIRED, TO FILL THIS SP...
  • WHEN ENGLAND BECAME A VASSAL STATE OF THE VATICAN.....THE SECRET TREATY OF VERONA 1213
    “On October 3rd 1213, King John, as ‘King of England Corporation Sole’ claimed autonomy over all the sovereign rights of England and ...
  • COSMIC BLUEPRINTS OPEN FORUM. TONY Z, KATE OF GAIA AND OTHERS TALK TO TAMI PEPPERMAN
    Listen to internet radio with Critical Mass Radio on Blog Talk Radio ETHICAL   DONATORS  AND  COMMUNITY MEMBERS  REQUIRED, TO FILL THIS SP...
  • NEGOTIORUM GESTIO & NEGOTIORUM GESTOR AS DEFINED IN BLACKS LAW FIRST EDITION
    NEGOTIORUM GESTIO. Lat. In the civil law. Literally, a doing of business or businesses. A species of spontaneous agency, or an interference ...
  • LEAVING THE PFARM - OPPT DISCUSSION BY TAMI PEPPERMAN AND FRIENDS
    There are some terrible audio problems over the first 5-10 minutes then it really kicks off. The trend that I am noticing in the OPPT debate...

Categories

  • 'Australia is 100% Australian Independent Media (6)
  • 'Australia is a Crime Scene' - Robbie Thorpe (107)
  • 100% Australian Independent Media (392)
  • 100% Independent Australian Media (69)
  • 100% Independent Australian Media Australian Constitution (2)
  • A4V (2)
  • Administration and Probate Act 1958 - SECT 9 (1)
  • Australia is a Crime Scene (1)
  • Australian Federal Police Act 1979 (1)
  • Australian Independent Media (1)
  • Bill Turner (1)
  • Bills of Exchange Act 1909 (1)
  • Blacks Law (1)
  • Bono Vacantia (1)
  • Bouvier's (1)
  • Bruce Bell (1)
  • Cestui Que Vie Act 1666 (7)
  • Challenger (1)
  • COMMONWEALTH OF AUSTRALIA IS A CORPORATION. (1)
  • Competition and Consumer Act 2010 (1)
  • County Court owned by Liberty (1)
  • Daily Mail (1)
  • Dean Clifford (7)
  • Frank O’Collins (6)
  • Free Roger Hayes (2)
  • Freedom from Government (1)
  • Herald Sun (3)
  • high court (1)
  • High Court decisions (2)
  • http://mikiverselaw.blogspot.com.au/ (24)
  • Idle No More (1)
  • Information Privacy Act 2000 (1)
  • Jean Keating (2)
  • Judiciary Act 1903 S.40 (1)
  • King James II of Australia (1)
  • Larry Hannigan (1)
  • Liberty (1)
  • Mark A Robinson (1)
  • Mark McMurtrie (23)
  • Master in Equity (1)
  • Mens Rea (1)
  • Mental Health Act (1)
  • Mika of the family Rasila (4)
  • mikiverse (486)
  • Mikiverse Headline News (464)
  • Mikiverse Health (492)
  • Mikiverse Law (490)
  • Mikiverse Politics (494)
  • Mikiverse Science (488)
  • mikiverse.com (23)
  • MikiverseLaw (6)
  • Motor Car Act 1909 (1)
  • NATIONAL TRANSPORT COMMISSION (ROAD TRANSPORT LEGISLATION—AUSTRALIAN ROAD RULES) REGULATIONS 2006 (1)
  • NSW Law Reform Commission (1)
  • OPPT (8)
  • Original Soveregn Tribal Federation (5)
  • Originie Australian (2)
  • OSTF (9)
  • Pacific Islanders Protection Act 1872 (1)
  • Police Brutality (1)
  • PUBLIC NOTICE (1)
  • Real Justice (1)
  • RealJustice (1)
  • Robert Arthur Menard (4)
  • Robert Menard (4)
  • Rod Class (3)
  • Roger Hayes (1)
  • RT (1)
  • Rumble-v-Liverpool Plains Shire Council No. 2011/58125 (1)
  • S 16 Motor Car Act 1909 (1)
  • S.76 Sentencing Act 1991 (1)
  • Santos Bonacci (1)
  • Stefan Molyneux (1)
  • Tami Pepperman (3)
  • The Judiciary Act 1903 (1)
  • The Mikiverse (3)
  • UCC Financing Statement (1)
  • Vimeo (1)
  • Wayne Glew (1)
  • Winston Shrout (1)
  • You Tube (24)
  • Your CAR is NOT a MOTOR VEHICLE (3)

Blog Archive

  • ►  2013 (304)
    • ►  September (15)
    • ►  August (59)
    • ►  July (30)
    • ►  June (28)
    • ►  May (18)
    • ►  April (25)
    • ►  March (31)
    • ►  February (66)
    • ►  January (32)
  • ▼  2012 (196)
    • ►  December (48)
    • ▼  November (25)
      • SEVEN SWORN PEACE OFFICERS LAWFULLY TRAVELLING TO ...
      • DEAN CLIFFORD - GLOBAL FACT RADIO - 19-11-2012 - J...
      • FREEMAN LECTURES - ROBERT MENARD, LUKE DENIS - ON ...
      • RETIRED HIGH COURT JUDGE MARY GAUDRON IMPLICATED I...
      • LETTERS OF ADMINISTRATION
      • INFORMATION ABOUT PROBATE AND LETTERS OF ADMINISTR...
      • SOUTHERN POVERTY LAW CENTER'S LUCRATIVE 'HATE GROU...
      • TWO NORTH CAROLINA DETECTIVES BUILD PROGRAM FOR DE...
      • ORIGINAL SOVEREIGHN TRIBAL FEDERATION PRESS RELEAS...
      • STATE OF VICTORIA-DEPARTMENT OF JUSTICE TRADING NA...
      • BRITISH CONSTITUTIONAL GROUP VI -- GUY TAYLOR -- C...
      • COMMON LAW OFFENCE
      • MALUM PROHIBITUM
      • MALUM IN SE
      • THOM HARTMANN VS. ALFRED ADASK: ARE SOVEREIGN CITI...
      • UNLAWFUL SCHEDULE OF COUNCIL "ACT" THAT IS USED TO...
      • POWERLESS: LEGAL HEAVYWEIGHTS USED TO SILENCE FARMER
      • THE FOUNDATION OF THE AUSTRALIAN COLONIES AND THE ...
      • INTERESTING DEFINITION IN 1764 ETYMOLOGICAL DICTIO...
      • POLICE BRUTALlTY DURING TASER DEATH ARREST: WITNESS
      • COURT OF CHIVALRY
      • JEAN KEATING ORLANDO FLORIDA SEMINAR
      • THIS ACT IS FINE IF YOU'RE A COP - BUT HEFTY FINES...
      • NATIONAL TRANSPORT COMMISSION (ROAD TRANSPORT LEGI...
      • LAW OF TORTS FOURTH EDITION—R.P. BALKIN J.L.R. DAV...
    • ►  October (15)
    • ►  September (11)
    • ►  August (13)
    • ►  July (12)
    • ►  June (37)
    • ►  May (10)
    • ►  April (5)
    • ►  March (6)
    • ►  February (13)
    • ►  January (1)
Powered by Blogger.