Plowman v Palmer

This case involved an appeal to the High Court of Australia concerning an action for assault. The plaintiff, George Plowman, alleged he was assaulted by the defendants, William Harrington Palmer (the official assignee of a bankrupt), and his solicitors, McIntosh and Crowther. The defendants sought to justify their actions by claiming they were acting under a writ of *habere facias* issued by the Supreme Court in its bankruptcy jurisdiction, which directed the sheriff to put Palmer in possession of certain land. The plaintiff was removed from this land by the sheriff's bailiff pursuant to this writ.

The central legal issue before the High Court was whether the writ of *habere facias* was a nullity, thereby rendering the defendants' actions unlawful, or merely an irregularity that could be justified. The plaintiff contended that the writ was invalid because it was issued without a special order, as required by Rule 210 of the Consolidated Equity Rules of 1902, which applied to bankruptcy proceedings under Rule 201 of the Bankruptcy Rules 1896. The defendants argued that the writ, even if irregular, provided a valid defence to the assault claim, as it had not been set aside.

The High Court, affirming the decision of the Supreme Court but on different grounds, held that the writ of *habere facias* was not a nullity. The Court reasoned that while Rule 210 of the Equity Rules stipulated that such a writ should not be issued without a special order, non-compliance with this rule constituted an irregularity, not a fundamental defect that would render the writ void. This was supported by Rule 200 of the Bankruptcy Rules, which stated that non-compliance with rules would not render proceedings void unless a judge directed otherwise. The Court applied the principle that a party acting under an irregular writ that has not been set aside can justify their actions. Therefore, the sheriff's officer was entitled to execute the writ, and the defendants, acting under its authority, were justified in removing the plaintiff from the land, provided no more force than necessary was used, which the jury had found. The appeal was dismissed.