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CHAPTER 22 – CIVIL LIABILITY AND PROTECTION OF MAGISTRATES

22.1 PRINCIPLE OF LIABILITY

A person who, by his or her physical acts, words or other actions, causes harm or loss to another person intentionally or in circumstances where a duty of care is owed, is liable to that person for damages in tort. Generally, officials are liable to persons affected by their decisions and, in the absence of any immunity or other protection at law, they may be sued for damages if they are negligent or cause harm by intentional acts.

22.2 PRINCIPLE OF IMMUNITY

In order to ensure the freedom of Judges, Magistrates, parties, lawyers and witnesses to act and speak in the interests of justice without fear of being sued for damages, the common law provides immunity for all those involved in the judicial process. This immunity protects them from being sued for anything said, written or done in the course of court proceedings or immediately preparatory to those proceedings.

As far as Judges are concerned, the common law immunity extends to:

·           acts beyond their jurisdiction, provided they act judicially; and

·           acts motivated by malice, provided the acts are within jurisdiction.

22.3 LIABILITY AND PROTECTION OF MAGISTRATES AND CLERKS

As judicial officers in the lower courts, Magistrates enjoy some of the immunity of Judges, but the Magistrates’ common law immunity is limited in two important respects:

1.         Magistrates are usually liable personally for acts done by them when those acts are outside their jurisdiction (in excess of jurisdiction – see, for example, the discussion of the criminal jurisdiction in 6.3 and civil jurisdiction in 14.2); and

2.         Magistrates may also be sued for acts done within jurisdiction, where those acts are:

(a)        motivated by malice; and

(b)        done without reasonable and probable cause.

In Papua New Guinea, Pt XII of the District Courts Act gives general effect to the common law, but provides important procedural safeguards for Magistrates. It also extends the provisions of the Act to acts done by clerks of District Courts.

22.4 SCHEME OF PART XII OF THE DISTRICT COURTS ACT

22.4.1 Exceeding jurisdiction

Part XII of the District Courts Act deals with the two aspects of liability and protection referred to above, namely excess of jurisdiction and malice. As far as exceeding jurisdiction is concerned, the liability of Magistrates is emphasised by the language of s 247. This section declares that a person injured by an act done by a Magistrate “may maintain an action against the Magistrate” in circumstances where:

·           the Magistrate’s act was done in a matter in which, by law, he or she had “no jurisdiction”, or in which he or she had “exceeded his or her jurisdiction”; or

·           the act was done under a conviction or order made, or warrant issued, by a Magistrate in such a matter. (This seems to mean – an act done by another person in the course of carrying out such a conviction, order or warrant.)

In practice, the distinction between “acting with no jurisdiction” and “exceeding jurisdiction” is seldom important. For example, s 21(4) of the District Courts Act provides that a District Court “has no jurisdiction in the following cases ...”, and the list includes such matters as the validity of a bequest under a will, and breach of promise to marry. A Magistrate who begins to hear such a case has no legal authority, and may be liable in damages for any harm caused. Other sections explicitly confer jurisdiction on the court, and, if the Magistrate goes outside the wording of the section, he or she is acting in excess of jurisdiction. An obvious example is where a Magistrate allows an amendment to increase a civil claim to a monetary figure above the statutory limit: s 21(1).

However, the consequences of a Magistrate acting contrary to sections like these are unlikely to be more serious than the consequences of mishandling a matter which lies within jurisdiction. Because the Magistrate’s authority in any matter or process is dependant entirely on the wording of relevant statutes, any failure to observe the statute is an act in excess of jurisdiction. For example, failure to state “the offence” in a summons (s 44), failure to conduct matters in open court (s 57), or failure to explain the nature of the charge in ordinary language (s 96) will mean that all subsequent proceedings will be in excess of the Magistrate’s jurisdiction.

22.4.2 Limitations on actions against Magistrates

One of the purposes of Pt XII of the District Courts Act is to place limitations on the circumstances in which actions can be brought against Magistrates.

No action can be maintained against a Magistrate for anything done under a conviction or order, or under a warrant leading to a conviction or order, until after the conviction or order has been quashed or set aside: s 247(2). If a warrant was issued to procure the attendance of a person who failed to appear on a summons, or if a warrant is not followed by a conviction or order, no action can be brought against a Magistrate for anything done under the warrant: s 247(3).

Where a warrant of execution or commitment is granted by a Magistrate bona fide (in good faith) and without collusion (secret agreement with one of the parties), in reliance on a conviction or order made by another court, it is that court alone which may be liable for any defects in the order or conviction: s 248.

Similarly, no action is maintainable against a Magistrate who acts in obedience to an order of the National Court or a Judge (s 249), nor is it maintainable in respect of a Magistrate’s warrant of execution or commitment on a conviction or order that has been confirmed on appeal by that court (s 250).

A Magistrate, against whom an action, which the Act declares to be not maintainable, is brought, may apply to a Judge of the National Court to have the action stayed or set aside: s 251.

22.4.3 Actions against Magistrates in the execution of their office

A further purpose of the legislation is to set up strict procedural requirements in order to protect the Magistrate, as far as possible, from claims that are not based upon genuine grounds of complaint against him or her.

No action can be brought against a Magistrate who is acting in the execution of his or her duty as such, or in his or her capacity as a Magistrate as such, unless the provisions of ss 252-258 of the District Courts Act are complied with. The only grounds that can be successfully alleged under the Act are acts of a Magistrate that are “done maliciously and without reasonable and probable cause”: s 256.

“Malice” requires an intention to cause harm – a spiteful or evil intention – and is difficult to prove against a Magistrate. Nevertheless, Magistrates should bear in mind that minor lapses of behaviour on their part may appear to be due to malice. They should remain aware of the very public nature of their daily contact with parties, both in court and on the court record. Magistrates are constantly interacting with people, and frequently making both minor and important decisions affecting parties, witnesses and the public. Everything Magistrates say and do (including on the occasions when they may be feeling ill, under pressure, angry or annoyed) will be watched and commented upon. People who do not understand the law and procedure may wrongly interpret the presiding Magistrate’s comments or decisions. Disgruntled or unsuccessful parties may seek ways of hitting back at the Magistrate – and all of this can lead to reactions from the Magistrate which might be described as “malicious”.

“Without reasonable and probable cause” means that a Magistrate has the opportunity to explain his or her actions. It is a reminder that Magistrates who conduct themselves with dignity and impartiality, and whose actions can always be shown to be based in law and common sense, have nothing to fear at the hands of those members of the public who pass through their courts: see also Chapter 1.

Finally, if it is proved that the claimant was in fact guilty of the offence charged, liable at law to pay the sum which the Magistrate ordered, or has undergone no greater punishment than that assigned by law for the offence, the claimant is not entitled to recover any penalty or sum paid, and may not recover more than nominal damages of two toea for imprisonment or the cost of the action: District Courts Act, s 258.

22.5 OTHER JURISDICTIONS

While a Magistrate is acting as a Coroner (Chapter 19A) or sitting as the Court of Disputed Returns in local-level elections (Chapter 19B), he or she does so as a member of the District Court, and the above provisions as to liability and protection apply. While acting as an Assessment Officer under the Motor Vehicle (Third Party Insurance) (Basic Protection Compensation) Act (Chapter 19D), s 28 of that Act protects the officer in respect of any act done, which the officer believed in good faith to be within jurisdiction. It is interesting that this is the same “higher” protection that is afforded to Judges at common law: see 22.2 above.