Deng v Australian Capital Territory (No 2)
[2021] ACTSC 135
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Deng v Australian Capital Territory (No 2) |
Citation: | [2021] ACTSC 135 |
Hearing Date: | 25 June 2021 |
DecisionDate: | 2 July 2021 |
Before: | Crowe AJ |
Decision: | See [52] |
Catchwords: | CIVIL LAW – APPLICATION IN PROCEEDING – Application for stay of proceeding – whether action maintainable against a magistrate in circumstances where relevant order has not been quashed or set aside on appeal – whether power conferred by s 17F of the Magistrates Court Act 1930 (ACT) to stay proceedings against a magistrate is discretionary – factors informing exercise of the discretion |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) rr 1401, 3556, 3557 |
Cases Cited: | Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 Johnson’s Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 Spautz v Dempsey [1984] 1 NSWLR 449 |
Parties: | Atem Deng (Plaintiff) The Australian Capital Territory (First Defendant) The Magistrates Court of the Australian Capital Territory (Second Defendant) Her Honour Special Magistrate Margaret Hunter (Third Defendant) His Honour Magistrate Glenn Theakston (Fourth Defendant) |
Representation: | Counsel P Tierney (Plaintiff) A Hochroth (Defendants) |
| Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendants) | |
File Number: | SC 377 of 2020 |
CROWE AJ:
Background
On 30 April 2019 the plaintiff appeared before the Magistrates Court in relation to a charge of damaging property not exceeding $5,000. The charge arose from circumstances which engaged the operation of the Family Violence Act 2016 (ACT) (the FVA). This resulted in a deemed application for an interim family violence order under s 112 of the FVA. The charge matter was adjourned. The Court made restraining orders under the FVA. These were expressed to operate “until all related charges are finalised…”. The “related charges” referred to the damage property charge.
After a number of mentions the charge matter came back before the Court on 30 August 2019. On that occasion the plaintiff was convicted and fined $2,000. No order was made in relation to the interim family violence order.
On 23 October 2019 the plaintiff was charged with engaging in conduct which contravened a family violence order. The order referred to was the interim order which had been made on 30 April 2019. The plaintiff was, on 23 October 2019, remanded in custody by Special Magistrate Hunter (the third defendant). The matter was adjourned to 12 November 2019. On that day the plaintiff was brought before Magistrate Theakston, who was then the Acting Chief Magistrate (the fourth defendant) who listed the matter for hearing on 9 January 2020. His Honour further remanded the plaintiff in custody pending the hearing.
However, the matter returned to the Court on 19 December 2019. On that occasion the prosecution indicated that no evidence was to be offered and the charge was accordingly dismissed. The plaintiff was released from custody. By that time, he had spent 82 days in custody at the Alexander Maconochie Centre.
On 22 October 2020 the plaintiff, by his solicitors, filed the Originating Claim (the OC) in these proceedings against the Australian Capital Territory as first defendant and the Magistrates Court of the Australian Capital Territory as second defendant. The plaintiff sought the following relief:
(a)a Declaration that, in purporting to remand the plaintiff in custody on 23 October 2019 and 12 November 2019, the second defendant acted without, or in excess of, jurisdiction;
(b)in the alternative, a Declaration setting aside orders made by the second defendant purporting to remand the plaintiff in custody;
(c)damages from the second defendant pursuant to s. 17A of the Magistrates Court Act 1930 (ACT) for the injury suffered by the plaintiff as a result of the Remand Orders;
(d)compensation from the first defendant pursuant to s. 18(7) of the Human Rights Act 2004 (ACT);
(e)damages from the first defendant for false imprisonment;
(f)damages for personal injury in negligence from the first defendant;
…
In the Statement of Claim accompanying the OC the plaintiff pleaded that the interim family violence order had been revoked by the finalisation of the damage property charge on 30 August 2019. The plaintiff claimed that as a consequence there were no restraining conditions in force at the time when he was alleged to have breached the interim family violence order. He claimed that in the circumstances the second defendant had no jurisdiction to make the remand orders on 23 October 2019 or 12 November 2019.
The Statement of Claim asserted a cause of action in damages in relation to the imprisonment of the plaintiff “pursuant to s 17A of the Magistrates Court Act.” Further claims were made in relation to the other causes of action suggested by the remedies sought in the OC.
The first and second defendants, in their defence filed on 12 February 2021, pleaded as follows in relation to the alleged revocation of the interim family violence order:
11. In answer to the allegation in paragraph 11 of the Claim, the Defendants:
a.say that on and from 30 August 2019, the Special Interim Order remained in force as none of the events specified in s. 30 of the FVA had occurred;
b.say that on and from 30 August 2019, on the terms of the Special Interim Order, the prohibition on the plaintiff engaging in the conduct specified in the Special Interim Order no longer applied; and
c.otherwise deny the allegation.
The first and second defendants also denied the allegation that s 17A of the Magistrates Court Act 1930 (ACT) (the MCA) gave rise to any cause of action recognised by law. Moreover, at paragraph 36 of the defence they pleaded:
The Defendants deny the allegation in paragraph 36 of the Claim and say that:
a.S. 17A of the MCA does not confer any right or entitlement to sue the First Defendant or the Second Defendant for damages;
b. in the premises, paragraphs 33 to 36 of the Claim:
i. are not maintainable;
ii.do not disclose any reasonable cause of action against the First Defendant or the Second Defendant; and
iii. in the premises, are liable to be struck out.
The plaintiff’s claim was listed for hearing before Loukas-Karlsson J on 3 May 2021. Evidence was heard on that day. It became clear that the matter could not be completed and that a further date would be required. Towards the end of the day however there was some debate about the effect of s 17A of the MCA. That led to the plaintiff filing an application in proceeding on 6 May 2021 in which he sought to strike out paragraph 36a of the defence or, alternatively, to join Special Magistrate Hunter and Magistrate Theakston as defendants in the action.
The plaintiff’s application in proceeding came before Loukas-Karlsson J on 14 May 2021. After hearing submissions her Honour ordered that the Magistrates be joined as defendants in the matter. The plaintiff was given seven days in which to serve an Amended Statement of Claim on the defendants. The defendants were then given a further seven days to notify the Court and the plaintiff’s representatives of any issues to be raised with the Amended Statement of Claim.
On 21 May 2021 the plaintiff served his Amended Statement of Claim. He also lodged it for filing. The defendants take issue with the latter. They have a number of objections to the amended pleading.
It is notable that the claims against the third and fourth defendants are articulated in this amended pleading slightly differently from those against the second defendant in the original pleading. It is sufficient to set out the pleas against the third defendant (which are repeated against the fourth defendant in relation to the proceedings before Magistrate Theakston on 12 November 2019). After the plea that the second defendant had no jurisdiction to make the first remand order, the following appears:
23A.On 23 October 2019 the third defendant constituting the second defendant sitting as the Family Violence Court commenced to hear the Breach Charge without first confirming that she had jurisdiction to hear that charge.
Particulars
a) The third defendant did not identify:
i.that the Special Interim Order did not impose conditions on the plaintiff; and
ii. that no order existed to found the Breach Charge (“the First Act”).
23B.On 23 October 2019 the third defendant determined to remand the Plaintiff in custody and authorise the second defendant to make the First Remand Order (“the Second Act”).
23C.On 23 October 2019 the third defendant authorised the issue of a warrant under section 17 of the Crimes (Sentence Administration) Act 2004 (“the Third Act”).
23D.Each of the First Act, the Second Act and the Third Act was an act done without, or in excess of, jurisdiction for the purposes of s. 17A of the MC Act.
23E.The First Act, the Second Act and the Third Act, either individually or in combination was a direct or proximate cause of the detention of the plaintiff in custody.
On 7 June 2021 the third and fourth defendants issued an Application in Proceeding seeking a stay of the proceeding against them pursuant to s 17F of the MCA. I heard the application on 25 June 2021 and reserved my decision.
Submissions of the third and fourth defendants
Mr A Hochroth of counsel appeared for these defendants. He submitted that having regard to the substantive claim brought against his clients, s 17A(2) MCA operated to render it unmaintainable unless and until the relevant remand orders were quashed or set aside on appeal.
Sections 17A and 17F are contained in Part 2.3 of the MCA, which is headed “Protection of magistrates in execution of their office”. Section 17A provides:
17AMagistrate sued for act not within jurisdiction
(1)Any person injured by an act done by a magistrate in a matter in which by law the magistrate has no jurisdiction or in which the magistrate has exceeded his or her jurisdiction, or by an act done under any conviction or order made or warrant or writ issued by a magistrate in any such matter, may maintain in the Supreme Court an action against the magistrate without alleging in his or her statement of claim that the act complained of was done maliciously and without reasonable and probable cause.
(2)No such action is maintainable for anything done under any such conviction or order until after the conviction or order has been quashed or set aside on appeal.
(3)No such action is maintainable for anything done under any such warrant that was issued by the magistrate to procure the appearance of the person charged, and that has been followed by a conviction or order in the same matter, until after the conviction or order has been so quashed or set aside.
(4)If the lastmentioned warrant has not been followed by a conviction or order, or if it is a warrant on an information of an alleged indictable offence, and if a summons was issued previously to the warrant being issued, and the summons was served on the person charged either personally or by leaving it for the person with someone at the person’s last-known or usual home or business address, and the person did not appear according to the exigency of the summons, in that case no action is maintainable against the magistrate for anything done under the warrant.
Section 17F provides:
17FActions in cases prohibited
If any action, which by this Act is declared to be not maintainable, is brought against a magistrate, the Supreme Court, on application of the defendant, and on affidavit of the facts, may set aside or stay the proceeding with or without costs.
There is no s 17B in Part 2.3. However, the following provisions provide context to the specific sections in question here:
17CCommittal or enforcement order by magistrate on order of court
If a conviction or order is made by the court and a committal order or enforcement order is made for the conviction or order by a magistrate bona fide and without collusion, an action in relation to any defect in the conviction or order or any want of jurisdiction in the court making the conviction or order is maintainable only against the magistrate constituting the court that made the conviction or order.
17DNo action for acts done under Supreme Court order
An action is not maintainable against a magistrate for doing an act if the magistrate does the act in accordance with a Supreme Court order.
17ENo action if proceeding confirmed on appeal
If a committal order or enforcement order is made by a magistrate on a conviction or order that, either before or after the making of the committal order or enforcement order, is confirmed on appeal, an action is not maintainable against the magistrate who made the committal order or enforcement order for anything done under it because of any defect in the conviction or order.
…
17H No action against magistrate for judicial acts in Magistrates Court
An action must not be brought in the Magistrates Court against a magistrate in relation to anything done by the magistrate in the execution of the magistrate’s office.
17IMagistrate sued for acts within magistrate’s jurisdiction only liable in case of malice and absence of reasonable and probable cause
In an action against a magistrate for any act done by the magistrate in the execution of the magistrate’s duty as a magistrate in relation to any matter within the magistrate’s jurisdiction as a magistrate, it must be expressly alleged in the statement of claim that the act was done maliciously and without reasonable and probable cause, and if the allegations are denied, and at the trial of the action the plaintiff fails to prove them, judgment must be given for the defendant.
17JVerdict for defendant
If the plaintiff in an action against a magistrate does not prove the cause of action at the trial, judgment must be given for the defendant.
17KDamages
If—
(a)the plaintiff in an action against a magistrate is entitled to recover, and seeks to recover a penalty or other amount paid or raised as a result of a conviction, judgment or order or to recover damages for imprisonment; and
(b)it is proved that the plaintiff was guilty of the offence or liable to pay the amount or, for imprisonment, did not undergo any greater punishment than could have been imposed for the offence of which the plaintiff was convicted;
the plaintiff is not entitled to recover the penalty or other amount paid or raised or, for imprisonment, damages greater than 1 cent, or any costs in the action.
Mr Hochroth submitted that s 17A(1) was facultative. It did not create a cause of action. The sub-section merely enabled a person who claimed an injury consequent upon a magistrate acting without, or in excess of, jurisdiction to do so without the need to allege that the magistrate was acting maliciously and without reasonable and probable cause. He referred me to passages from Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 (Lewis v ACT) in support of that submission.
Mr Hochroth argued that the substance of the claim against the third and fourth defendants is that the acts done by others to imprison the plaintiff were done “under” the remand orders made by each Magistrate. Neither of the remand orders has been quashed or set aside on appeal. It follows that the plaintiff’s claims against these defendants are not maintainable.
That conclusion, it was submitted, engaged the remedy in s 17F. In relation to that provision Mr Hochroth contended that correctly read, the section mandated an order setting aside or staying the plaintiff’s action. In that connection he pointed out that the substance of the section had been contained in the original Court of Petty Sessions Ordinance (No 2) 1930 (Cth) (as s 231). It thus predated the Legislation Act 2001 (ACT) (the Legislation Act) so that it was not affected by s 146 (which provided that unless expressly displaced the word “may” in a legislative provision should be interpreted as conferring a discretion). Reference was made to Johnson’s Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 568 to support the proposition that the word “may” could acquire a mandatory meaning from the context in which it is used. Reference was also made to statements in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 225 and 241 suggesting that the conferring of a power on a public official to be exercised for the benefit of specific persons carried with it the obligation to exercise that power: see also Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134–5 and 139, and Mitchell v The Queen [1996] HCA 45; 184 CLR 333at 345–6.
Mr Hochroth submitted that when regard is had to the importance of upholding the immunities conferred on magistrates and the words “not to be maintainable” in s 17F and “[n]o such action is maintainable” in s 17A(2), the word “may” in the former section should be interpreted as requiring an order. The only choice left under the provision is whether the order should be to set aside the relevant proceedings, or to stay them. Mr Hochroth submitted that a stay was appropriate here where the action is not presently maintainable, but where it may become maintainable should each remand order be quashed or set aside on appeal.
Finally, Mr Hochroth argued that if the Court should find that s 17F conferred a discretion whether or not to set aside or stay the plaintiff’s claim it would be appropriate for a stay order to be made pursuant to that discretion. This was because of:
(a)the need to enforce the immunity contained in s 17A(2) and the policy underlying judicial immunity;
(b)the desirability of achieving resolution of the proceedings efficiently, without undue cost and with expedition in the light of s 5A of the Court Procedures Act 2004 (ACT) (the CPA);
(c)consistency with the policy reflected in s 17A(2) of the MCA and r 3556(5) of the Court Procedures Rules 2006 (ACT) (the CPRs) that a judicial officer should not personally be a party to proceedings in which the validity of an order made by the officer is in question; and
(d)the lack of prejudice to the plaintiff.
Submissions of the plaintiff
Mr P Tierney, counsel for the plaintiff, argued that s 17A(2) did not apply to the plaintiff’s claims against the third and fourth defendants in the circumstances of this case. Mr Tierney also contended that the word “may” in s 17F did confer a discretion and that, having regard to comments made by Loukas-Karlsson J on 14 May 2021, the discretion to order a stay (or to set aside the proceedings) should not be exercised.
In relation to s 17A Mr Tierney submitted that correctly understood, s17A(1) permitted a plaintiff to sue where he or she suffered injury due to a magistrate acting without, or in excess of jurisdiction and due to an act done under any conviction or order made or warrant or writ issued by a magistrate. Mr Tierney described these grounds as “conjunctive”. It was submitted that s 17A(2) operates only with respect to the second ground. The plaintiff’s cause of action here asserts a lack of jurisdiction for the pleaded acts of the third and fourth defendants. Thus, s 17A(2) does not apply.
Mr Tierney also referred the Court to the decision of the NSW Court of Appeal in Spautz v Butterworth (1996) 41 NSWLR 1 (Spautz) where Clarke JA (Priestley and Beazley JJA agreeing) said at 23-4:
Turning now to s 136. Because of the difficulties which have arisen in the present case in interpreting the section, I shall set out again the subsections relied upon:
“136. (1) An action against a Justice for any act done by him in a matter of which by law he has no jurisdiction, or in which he has exceeded his jurisdiction, may be maintained by any person injured by such act or by any act done under any conviction or order made, or any warrant issued by such Justice in such matter, in the same case as such an action might have been maintained before the passing of this Act.
…
(3) No such action shall be brought:
(a)for anything done under such conviction or order until after such conviction or order has been quashed upon appeal or upon application to the Supreme Court;
(b)for anything done under any warrant issued by the Justice to procure the appearance of such person if such warrant has been followed by a conviction or order in the same matter until after such conviction or order has been quashed on appeal or on application to the Supreme Court;
(c)for anything done under any warrant issued by the Justice to procure the appearance of such person. …”
It will be seen that under this provision an action may, subject to subs (3), be taken against a justice who has acted without, or in excess of, jurisdiction in the circumstances that would have enabled action to be taken before the passing of the Justices Act 1902 (NSW) (the Justices Act) by any person:
(1) injured by the unauthorised (in the sense of without jurisdiction) act of the justice or;
(2) injured by any act done under any unauthorised conviction or order; or
(3) any unauthorised issue of a warrant.
By virtue of subs (3) actions may not be brought in certain circumstances until stipulated conditions have been satisfied. It is, however, only subs (3)(a) which could possibly be relevant as the later subsections deal only with warrants to procure the appearance of a person — warrants which are not in question here. But that subsection (that is subs (3)(a)) is also not relevant as it does not address a situation in which it is the warrant itself, rather than the order which grounds the issue of the warrant, which was issued without jurisdiction.
In these circumstances none of the provisions of s 136(3) provides any bar to the maintenance of the present action. The power granted by s 136(1) is not relevantly qualified by s 136(3).
In relation to s 17F, Mr Tierney argued that s 146 of the Legislation Act required that “may” be given its usual discretionary meaning and that there was no basis on which it should be displaced. If it was necessary to do so, he would also rely on the combination of ss 21 and 30 of the Human Rights Act 2004 (ACT) as supporting that interpretation.
Mr Tierney submitted that s 17A did not in terms provide a context for concluding that s 17F required either a stay or an order setting aside the proceedings. He also argued that the third and fourth defendants had failed to demonstrate how a stay in the circumstances of this case advanced the objectives set out in s 5A(1) and (2) of the CPA. Mr Tierney contended that a stay would impede the orderly progression of the matter. The provisions of r 1401 of the CPRs weighed against it. Moreover, a stay would be inconsistent with comments by Loukas-Karlsson J made on 14 May 2021 when her Honour was dealing with the plaintiff’s application in proceeding. Her Honour said:
Now, I propose to grant leave to the plaintiff, pursuant to rule 220 of the Court Procedure Rules of the ACT, to join the defendants in the proceedings, Magistrates Hunter and Theakston, as the third and fourth defendants, respectively. And I do not propose to deal with the question of the construction of section 17A as [sic] procedural matter in this case. I think it should not be dealt with at this point. I just note that. I don’t need to make an order in respect of that, but I note that.
Consideration
The starting point here is the correct interpretation of s 17A(2). In that context it is important to understand the overall purpose to be achieved by s 17A. This was considered by Refshauge J in the matter of Lewis v ACT. His Honour said in relation to the concept of jurisdictional error:
[126] A distinction in this context has been drawn by the High Court in Craig v South Australia (1995) 184 CLR 163 at 176-80. On the one hand, there are inferior courts, which have jurisdiction to decide questions of law and questions of fact which are involved in the matters which it has jurisdiction to determine, errors in which will not ordinarily constitute jurisdictional error, though such courts may still commit jurisdictional errors. On the other hand, there are tribunals, which are not part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State Constitutions, and which may fall into jurisdictional error by the decisions they make and the manner of making them.
[127] The significance of the identification of a decisional error as a jurisdictional error is that a decision made as a result is no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at 614-5; [51]; 646-7; [152]. Such a decision is regarded as having no legal effect at all, subject to the reservation referred to below (at [128]). Such decisions are unlike the decisions of a superior court, for instance, where a decision, even beyond jurisdiction, has legal effect until set aside: New South Wales v Kable [2013] HCA 26; 252 CLR 118. The same is not true, however, for inferior courts where a decision that the inferior court makes which is beyond its jurisdiction is null and void: Pelechowski v Registrar, Court of Appeal (NSW) [1997] HCA 19; 198 CLR 435 at 445; [22]; 456-7; [71].
His Honour continued at [162]:
[162] As I have earlier stated (at [127]), it appears that a jurisdictional error renders a decision of an inferior court or a tribunal a nullity and of no force; it is no decision, is void ab initio and the decision can be ignored.
[163] This is one reason for the appearance of provisions such as s 17A of the Magistrates Court Act 1930 (ACT), granting certain immunity to Magistrates. See Fingleton v The Queen [2005] HCA 34; 227 CLR 166, though in the criminal context.
It appears tolerably clear that the intention of s 17A(1) was, as submitted by Mr Hochroth, to facilitate the bringing of an action by a plaintiff in any of the three broad circumstances summarised by Clarke JA in the extract from Spautz set out in [25] above. In that sense it can hardly be said that s 17A(1) is a protective one for magistrates. The situation is different for s 17A(2). While subsection (1) is facultative subsection (2) is clearly designed to provide a limitation on a plaintiff’s right of action in the circumstances described in that subsection.
I do not accept that the operation of subsection (2) is governed by the way in which the plaintiff chooses to plead his or her case. If that were so it would be possible to nullify the operation of the subsection merely by pleading the claim in a way which avoided stating the absence or excess of jurisdiction. In my opinion it is necessary to analyse the substance of the case alleged by a plaintiff to determine whether the claim is one in respect of anything done under a conviction entered, or order made, without or in excess of jurisdiction. If the claim, upon proper analysis, falls within that class of cases, it will not be maintainable under s 17A(2) until the conviction or order is quashed or set aside on appeal.
The purpose of the subsection is clearly to preserve that which might be seen as a nullity (that is a conviction or order beyond jurisdiction) until that issue is determined as a preliminary step. That outcome avoids the necessarily complicated step of the validity of the conviction or order being challenged in collateral proceedings.
I do not see that conclusion as inconsistent with the comments of Clarke JA in Spautz. The factual circumstances in that case were starkly different from those alleged here. Mr Spautz had laid an information against a professor at the University of Newcastle alleging criminal defamation. That information was dismissed by a Magistrate (Mr Cleary SM), on the basis that there was no prime facie case, who ordered Mr Spautz to pay costs of $5,000. It was further ordered that he pay that sum within three months or, in default, that he serve 200 days imprisonment with hard labour.
Mr Spautz did not pay the costs and Mr Butterworth (who was a Magistrate at Wallsend in NSW) issued a warrant of committal pursuant to the order of the first Magistrate. Mr Spautz subsequently spent 56 days in custody as a consequence of the execution of the warrant.
Mr Spautz brought proceedings seeking a declaration of illegality in respect of the warrant issued for his committal and his imprisonment under that warrant: Spautz v Dempsey [1984] 1 NSWLR 449. The basis for the declaration sought was that there was no lawful authority for the issue of the warrant. This rested on the proposition that criminal defamation was an indictable offence. The power to issue warrants under the Justices Act did not extend to indictable proceedings.
In concluding that the warrant had been issued without authority, Lee J in the Supreme Court of NSW said at 453:
It would follow that pursuant to s 82(2), Mr Cleary SM, on deciding that no case had been made out against Professor Williams, had power under s 41A(1) to order the defendant to pay costs and under s 82(2) power to order that in default of payment of same, he be imprisoned.
The validity of the orders was not enough to confer validity on the warrant. Lee J ordered that it be quashed.
The decision of Clarke JA must therefore be understood against the background that in that case there was no question as to the validity of the order for imprisonment. The problem was that because of the terms of the Justices Act at the time, the order was unenforceable (because it had been made in indictable, rather than summary, proceedings). It was thus not a matter where anything had been done under an order which was (arguably) without or in excess of jurisdiction. I see the decision in Spautz as distinguishable from the relevant circumstances here.
Whichever way it is expressed in pleadings it seems to me that the correct characterisation of the plaintiff’s claims against the third and fourth defendants is as one which seeks relief for things done under remand orders which the plaintiff asserts to have been beyond the jurisdiction of the third and fourth defendants respectively. Section 17A thus applies to the plaintiff’s claims against those defendants.
This requires consideration of the opposing arguments as to the correct interpretation of s 17F. It is important to note at the outset that s 146 of the Legislation Act does not render s 146(1) to be a “determinative” provision (i.e. one which requires express displacement) in relation to legislation made on or before 1 January 2000. The relevant provisions of the section for current purposes are as follows:
146Meaning of may and must
(1) In an Act or statutory instrument, the word may, or a similar term, used in relation to a function indicates that the function may be exercised or not exercised, at discretion.
...
(3) This section is a determinative provision so far as it applies to an applicable law or an applicable provision.
(4) In this section:
applicable law means an Act enacted, or statutory instrument made, after the application date.
applicable provision means a provision inserted after the application date into an Act or statutory instrument that is not an applicable law.
application date means—
(a) for an Act, subordinate law or disallowable instrument—1 January 2000; and
(b) for any other statutory instrument—1 January 2006.
inserted, for a provision, includes inserted in substitution for another provision.
It seems to me that the force of the submissions for the third and fourth defendants on this issue depends on the need to prevent collateral attacks on convictions or orders made by magistrates. However, an important feature of the scheme imposed by Part 2.3 of the MCA in relation to civil claims against magistrates is that such actions cannot be brought in the Magistrates Court: see s 17H. In that context the fact that any collateral challenge to the decision of a magistrate must occur in the Supreme Court to some degree undermines the strength of the defendants’ submission that s 17F should be seen as mandating an order.
In my view, to adopt the interpretation contended for by Mr Hochroth would be to strain the language of s 17F. Having regard to the context it seems to me that the better view is that the section was intended to give the Court a discretion whether or not to make any order under the section. However, that is not the end of the matter. The starting point for the exercise of that discretion must be the fact that s 17A(2) has declared the action to be not maintainable. In my view good reasons would have to be advanced to demonstrate that the balance of convenience and interests of justice favoured the displacement of that declaration so that the setting aside or quashing of a conviction or order could be determined at the end of the substantive action for damages against a magistrate.
I accept that the matters relied upon by Mr Hochroth (which are summarised in [23] above) provide further support for the exercise of the discretion, in the circumstances of this case, to stay the current proceedings against the third and fourth defendants.
Mr Tierney relied upon s 5A of the CPA to argue against the exercise of the discretion against the plaintiff’s claim. While it is true that the timely and efficient disposal of the plaintiff’s claim is a relevant consideration to the management by the Court of that claim it must be remembered that the section does not have a direct application to Part 2.3 of the MCA. That Part is not a “civil procedure provision” under s 5A (see s 5A(5)).
Moreover, it is not immediately apparent to me why the resolution of the s 17A(2) issue as a preliminary issue would cause undue delay or complexity in the current litigation. It seems likely that the only remedy open to the plaintiff to meet the impediment to his claim under s 17A(2) is for him to seek to have the remand decisions quashed by seeking judicial review in this Court. I envisage that such an application (including the necessary application to extend time having regard to r 3557 of the CPRs) could be brought on for hearing quickly. At the end of the day the issue as to the validity of the remand orders is a question of law which would not require the determination of factual matters going beyond the record of the relevant proceedings.
Overall, I am satisfied that far from unduly complicating the current proceedings the staying of the claims against the third and fourth defendants would tend to simplify them. It is logically preferable in my view to have the question of the statutory bar to the proceedings resolved one way or the other as a preliminary issue, particularly when, as here, it appears to be a pure question of law.
As to r 1401 of the CPRs, I do not see how the broad powers of the Court to make directions assists the position of the plaintiff. That power can be used in support of the objectives of s 5A of the CPA whichever way the discretion is exercised.
Finally, I do not accept that Loukas-Karlsson J intended in the passage extracted in paragraph 27 above to make a ruling relevant to the exercise of the s 17F discretion. The exercise of that discretion was, so far as I can see from the transcript of 14 May 2021, not raised in the application before her Honour. It is true that there was debate about the issue of whether s 17A “created” a cause of action. However, the focus of the application in proceeding related to pleading points and/or the joinder of the third and fourth defendants. In context it was not surprising that her Honour should decline to deal with the interpretation of s 17A as a “procedural matter”.
In the circumstances I do not see the ordering of a stay of proceedings against the third and fourth defendants as inconsistent with the ruling and comments of her Honour.
Conclusion
Having regard to the above I propose to order that the proceedings against the third and fourth defendants be stayed until further order. The third and fourth defendants, in the written submissions made on their behalf, included a series of directions for the further progress of the substantive proceeding in the event that their stay application was successful. However, it seems to me that before further directions are made the plaintiff should be given an opportunity to fully consider the ramifications of this judgment and to take such action as he may be advised. I will therefore order that the matter be listed for further directions before the Deputy-Registrar in two weeks or so. The defendants sought an order that costs of the application in proceeding be reserved. That seems to me to be appropriate having regard to the overall circumstances of this case.
Orders
The orders of the Court are:
(1)The proceedings against the third and fourth defendants herein are stayed until further order.
(2)The proceedings are listed for directions before the Deputy Registrar at 9:30 AM on Monday 19 July 2021.
(3)Costs of the application in proceeding filed on 7 June 2021 are reserved.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe Associate: Dominic Page Date: 2 July 2021 |
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