Vasivapada Trading Company Ltd v Attorney-General [1998] SBHC 139; HCSI-CC 49 of 1996 (4 March 1998)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 49 of 1996

VASIVAPADA TRADING COMPANY LIMITED

-v-

ATTORNEY-GENERAL

Before: Muria, CJ
Hearing: 28 January 1998
Judgment: 4 March 1998

Andrew Radclyffe for the Plaintiff
Attorney General for the Defendant

MURIA CJ: This is an action brought by the plaintiff claiming damages for negligence and breach statutory duty against the defendant, a claim to which the defendant denies liability.

It is necessary, before proceeding further with the matter, to ascertain the facts surrounding this case.

Facts.

The plaintiff in the present case was the defendant in Civil Case No. 100 of 1995 ("CC100/95") and the plaintiff in that case was Sasape Marina Ltd. judgment was obtained in favour of Sasape Marina Ltd in the sum of $98,140.06. The present plaintiff failed to pay the judgment debt and so Sasape Marina Ltd issued a Writ of Fieri Facias and levied execution against the property of the plaintiff. Consequently the "M.V. Thomas E", a ship belonging to the plaintiff was seized by the private bailiff who was appointed by the Registrar of High Court/Sheriff and sold by tender for $300,000.00 out of which Sasape Marina Ltd was paid $111,844.50 being for the judgment debt, interest and costs. The bailiff paid $102,749.36 to the plaintiff. The bailiff retained $80,499.14 which comprised of 20% Commission and 10% poundage in addition to what he would be entitled to charge under the High Court Rules. The plaintiff now claims that $80,499.14 together with interest and costs.

The plaintiff's case is that the bailiff concerned was the agent of the Registrar of High Court/Sheriff and by allowing the bailiff to retain the sum of $80,499.14 the Registrar of High Court/Sheriff was negligent. In addition the plaintiff ways that the Registrar of High Court/Sheriff was also in breach of his statutory duty by not properly supervising the bailiff in accordance with the High Court (Civil Procedure) Rules. Counsel for the plaintiff submitted that in this regard both the Registrar of High Court/Sheriff and bailiff had acted ultra vires. The Registrar of High Court/Sheriff in Solomon Islands is a crown servant and as such, Counsel argued, the defendant must be held vicariously liable for the acts of the Registrar High Court/Sheriff and his agent.

The defendant's case is that the Registrar of High Court/Sheriff in the present case had not acted carelessly nor had he acted in breach of his statutory duty. In addition the defendant relies on the defence of judicial immunity under section 4(5) of the Crown Proceedings Act.

To the defendant's contention, Mr. Radclyffe argued that the defence of judicial immunity does not apply in this case. The actions complained of are not judicial but rather, they are administrative. Even if the actions of the Registrar of High Court/Sheriff and bailiff come under section 4(5) of the Crown Proceedings Act, that section does not cover ultra vires acts or acts done in breach of the High Court Rules. Reference was made by Counsel to Order 4 Rule 10 of the High Court Rules which provides for sale other than by public auction to be authorised by the Court. That Counsel submitted had not been done in this case. With regard to the claim on negligence, counsel relied on the suggestion that the Registrar of High Court/Sheriff allowed the bailiff to act contrary to the High Court Rules and that he failed to properly supervise the bailiff's actions in the course of execution. It was further argued that the Registrar of High Court/Sheriff failed to take effective action after discovering that the bailiff wrongfully retained the sum of $80,499.14. That, counsel says, is negligence.

The learned Attorney General, in support of his submission based on section 4(5) of the Crown Proceedings Act, argued that the Registrar of High Court/Sheriff was discharging his duties in connection with a judicial process and so he cannot be held to be liable. It is further argued that s.16(3) Magistrate Court Act negatives liability on the part of the Registrar of High Court/Sheriff.

On the question of negligence, the learned Attorney General argued that the actions taken by the Registrar of High Court/Sheriff upon being informed of the bailiff's contact, had shown that the Registrar of High Court/Sheriff could not be said to be negligent. The Registrar of High Court/Sheriff had done what was expected of him and now the plaintiff must go after the bailiff if he wants his money back.

There are certain issues which ought to be considered here before the question of whether or not the Registrar of High Court/Sheriff, and for that matter the defendant, is liable can be determined. In this regard the first question is whether the Registrar High Court/Sheriff is a crown servant. I must point out that the position of Sheriff in Solomon Islands differs from that in the United Kingdom. In short, the English position is that Sheriffs are elected for particular counties or cities and it appears that Sheriff's have to have sufficient land to be appointed to their offices. There are also Under Sheriff's who infact carry out all the duties of the Sheriffs or what they called "High Court Sheriffs."

In Solomon Islands, the position of the Sheriff is that the Registrar of High Court is also the Sheriff, at least by LN 29 of 1962. He is clearly a public officer in the employment of the Government. This matter was discussed in Vasivapada Trading Co. Ltd -v- Registrar and Sheriff of the High Court and Attorney General, Civil Case No. 49 of 1996 (Judgment given 2 August, 1996). As pointed in that case, subsequent change in the law did nothing to alter the position of Sheriff in Solomon Islands. There is (and I think I can take judicial notice of this) presently in the Government Establishment the post of Sheriff in the Judicial Division, separate from the Registrar of High Court. When that is formally established with the view to formally altering the position as created by LN29 of 1962, the Sheirff can then be said to be separate from the Registrar of High Court. However the position remains the same, that the Sheriff is a crown servant and that is the position in Solomon Islands.

I turn now to the next issue and this is, whether the bailiff in this case is an agent or servant of the Sheriff. As I understand Mr. Radclyffe's argument, he contended that the bailiff was the Registrar of High Court/Sheriff's agent. I feel it is worth noting the definitions of "bailiff” and "Sheriff” mentioned under O.1, r1 of the High Court (Civil Procedure) Rules 1964 where the words are defined as follows:

"bailiff means a persons appointed to be a bailiff pursuant to the law constituting Magistrates' Courts in any territory and includes any assistant bailiff or any other person assisting a bailiff in the performance of his duties;"

and

"'Sheriff” means a person appointed to be a sheriff under section 20(1) of the Western Pacific (Courts) Order in Council 1961 and includes a Deputy Sheriff;

Sheriff's officer' means bailiff;"

Presumably, the reasons for the contention which Mr. Radclyffe relied upon are that the bailiff in this case (Mr. Lawrence Teibi) was and still is a private business person running a private bailiff service. In that capacity he was appointed by the Registrar/Sheriff to be bailiff to carry out execution process for the Courts. Following that appointment, the bailiff carried out execution of the judgment against the plaintiff in Civil Case No. 100 of 1995.

The distinction between a "servant" and "agent" at times can be a matter of technicalities and very little difference in the real sense. At times the distinction can be easily identifiable. In Colonial mutual Life Assurance Society Ltd -v- Producers and Citizens Co-operative Assurance Co. of Australia Ltd [1931] HCA 53; (1931) 46 CLR. 41 it was stated:

"The rule which imposes liabilities upon a master for the wrongs of his servant committed in the course of his employment commonly regarded as part of the law of agency: indeed, in our case law the terms principal and agent are employed more often than not although the matter in hand arises upon the relation of master and servant."

Whether the bailiff was a servant or agent of the Registrar/Sheriff in this case depends on the circumstances of the case and a number of factors such as who paid the bailiff, who controlled the work of the bailiff and the method employed by the bailiff to carry out his work. See Mersey Docks & Harbour Board -v- Coggins & Griffith (Liverpool) Ltd [1946] UKHL 1; [1946] 2 All E.R 345. I do not feel that I need to labour on this question of whether the bailiff in this case was servant or agent, as I am of the view that the bailiff here was a person who established himself as a private business person and who was free to contract with anybody to carry out services. In that private capacity he sought and was given a contractual appointment to perform the work of a bailiff for a fee, not wages. In the real sense, he was an independent contractor who could in law, be also regarded as the agent of the Registrar/Sheriff.

The evidence clearly shows, and it is not disputed, that the bailiff, Mr. Teibi, was an experienced Court Clerk who possessed the knowledge and experience in the work of enforcement of judgements through execution process. In fact it was the very basis for accepting his application to perform the work of bailiff. It was not necessary therefore to direct him as to how he was to do the work upon which he was engaged. Nevertheless, he was appointed to do something for the Registrar/Sheriff, that is to say, to execute the Writ of fieri facias against the plaintiff who was the judgement debtor in Civil Case No. 100 of 1995. He was therefore the agent of the Registrar/Sheriff performing his work as bailiff without the need to be under the command and control of the Registrar/Sheriff.

Next, I turn to consider what the actions of the bailiff were in this case. Having been armed with the writ of fi.fa. the bailiff proceeded to carry out the execution process. He seized the plaintiff's vessel, the “M.V. Thomas E" and sold the same by tender for $300,000.00. The bailiff paid the judgment creditor Sasape Marina Ltd the sum of $111,749.50 being the judgement debt together with interest and costs. He paid the sum of $102,749.36 to the plaintiff. The bailiff retained the sum of $80,499.14 which is the subject of dispute in these proceedings. The bailiff by his letter of 21 February 1996 to the Registrar of High court (Doc. 30) sought to justify his entitlement to that amount.

In Document 16 (Bailiff Report) in the bundle of agreed documents, the bailiff set out his breakdown of the cost of execution in a calculation worksheet as follows:

Cost of Execution	$85,406.14
Fixed Fee	10.00
Seizer (Seizure) Fee	250.00
Advertising Costs	900.00
Transport hire 151 x 14 2,	114.00
Safe custody charge (storage) 200 per day x 59 (11/7 - 8/9/95)	11,800.00
20% Sale Commission of	$300,000.00 60,000.00
Poundage 10%	10,332.14

From that document, it can be seen that the total cost of execution to the bailiff in respect of the plaintiff's vessel was more than 20% of the proceeds obtained from sale of the vessel. The bulk for his costs came from the 20% sale commission which he said he was allowed by the Registrar/Sheriff to charge. The plaintiff does not accept that the bailiff was entitled to such commission nor was he entitled to the amount of $80,499.14 which amount comprises of fixed fee ($10) seizure fee ($250), 20% sale Commission ($60,000) and excess poundage $5,425.14).

In the light of these circumstances I feel it is necessary to consider whether or not the bailiff was entitled to the amount of $80,499.14 or such of it as was appropriate under the Rules of Court. O.45, r13 provides for the Form of the writ of execution, rule 14 provides that the party entitled to execution may levy poundage, fees and expenses of execution over and above the sum recovered and rule 15 provides that the amount of money and interest to be levied must be endorsed on the writ of execution. That was done here and the endorsement directed the Sheriff to-

"Levy the sum of $98,140.06 plus interest at 18% from the date of Judgement together with $180 costs and the costs of execution; besides sheriff's poundage, officer's fee, cost of living and all other legal incidental expenses"

One would be inclined to think that upon the direction contained in that endorsement, the sheriff or the sheriff's officer (the bailiff) would be entitled to his fees and other charges out of the proceeds of the execution. I do not think that the rule restricts the Sheriff's or bailiff's entitlement to only the 5% poundage and costs as stipulated under the High Court Fees Rules 1985. Rule 14 would appear to allow the Sheriff or bailiff to claim his poundage fee from payments made or 5% on proceed of any sale provided it does not exceed 5% of the judgement debt. In addition the Sheriff or bailiff may also charge costs of levying and other legal incidental expenses. This in my view is broad enough to cover matters such as advertising, transport, storage and other related expenses. Note that rule 14 specifically identifies the three types of charges to which the Sheriff or bailiff is entitled, namely the poundage which is fixed at 5%, fees and expenses of execution. In my view the bailiff is entitled to more than simply the 5% poundage and expenses actually incurred in the course of execution. He is entitled to charge fees, be they in the form of commissions or otherwise. In the days of old, the sheriff was not entitled to exact more than the amounts prescribed under scales of fees. The modern version of the rules in this regard is that stated in Order 42 r 14 which, not only allows the sheriff or bailiff to levy his poundage, but also entitles him to claim his fees and other charges out of the proceeds and then pays the judgement creditor the debt and costs. See Montague -v- Davies Benachi & Co. [1911] UKLawRpKQB 93; [1911] 2 KB 595.

Does the bailiff have any right or claim over the whole of the $80,499.14 or part thereof? We do not know. The plaintiff says that the bailiff should hand over that full amount to it and that the bailiff had taken that money unlawfully and that the defendant was negligent or in breach of his statutory duties by allowing the bailiff to keep that money. It must not be lost sight of the fact that the plaintiff claims the sum of $80,499.14 and the way the claim is pursued by the plaintiff is to show that the defendant was negligent or that he was in breach of his statutory duties and that being so the sum of $80,499.14 should be paid to the plaintiff. This is to assume that the plaintiff is entitled to the whole of the $80,499.14. In my view even if the plaintiff establish that the defendant was negligent or in breach of his statutory duties but does not prove their entitlement to the amount claimed, the claim cannot stand. The converse is also true. If the plaintiff establishes their claim for the full amount but fails to establish negligence or breach of duty on the part of the defendant, the case for the plaintiff falls also. In other word the plaintiff's remedy does not lie in the claim for negligence or breach of statutory duty on the part of the present defendant.

In this regard I now turn to the question of negligence and breach of statutory duty. Much had been said in argument on these two matters. I need not recount what was said in Court. But it is important to note the relationship between the Registrar/Sheriff and the bailiff. I have already stated that in my view the bailiff in this case being a private bailiff was an independent contractor who entered into a contract for service with the Registrar/Sheriff to carry out execution process for the Court. He was therefore very much an agent. It must be borne in mind also that as an independent contractor the bailiff in this case carried out his usual businesses not as a representative but as a principal himself. However, it must be noted that one of his functions was that entrusted to him by the Registrar/Sheriff in which case when he performed the very service entrusted to him, he was doing so as agent of the Registrar/Sheriff in that sense. It is worth noting the comments by Dixon J in the Colonial Mutual Life Assurance Society Ltd case (supra) where his Honour said:

"In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual torfeasor is not his servant and he has not directly authorised the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal. But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in a place and assuming to act in his right and not in an independent capacity."

The bailiff in the present case was an independent contractor and the Registrar/Sheriff would not be liable for his unauthorised act except where the function entrusted to be done was done for and in a place of the Registrar/Sheriff. See Honey and Stein Ltd -v- Larkin Brothers Ltd [1934] 1 KB 191. But in general a principal is not liable for wrongful acts of the agent which are not authorised and committed in the course of carrying out his agency by the agent who is not the principal's servant or partner. The cases of Hambro -v- Burnand and Others [1904] UKLawRpKQB 73; [1904] 2 K.B. 10, Observer Ltd -v- Gordon [1983] 1 WLR 1008 and Neumann -v- Bakeaway Ltd [1983] 1 WLR 1016 are distinguished.

In the present case, the wrongful act of the bailiff is said to be the retention of the $80,499.14 which that the plaintiff says, arose as a result of the negligence or breach of statutory duties of the Registrar/Sheriff. As I have indicated earlier in this judgement, there are two aspects to this claim which must be established by the plaintiff. It must be established that the bailiff wrongfully retained that amount and that it was done as a consequence of the negligence or breach of duty of the Registrar/Sheriff.

The evidence in this case in my view demonstrates that the bailiff might well be entitled to part of the $80,499.14. The bailiff had given his reasons justifying his retention of the whole amount. How much was properly due to the bailiff we do not know unless the taxing master (Registrar of High Court) identified it so in the light of the bailiff's claim. So until that is done I do not think it can be successfully argued that the bailiff wrongfully retained the whole amount of $80,499.14.

Even if there was evidence to show that the bailiff wrongfully retained the money, he would be doing so outside the scope of his duties and the sheriff would not be liable. It is not part of the bailiff functions to taken money other than his proper fees and charges.

As to the claim of negligence or breach of Statutory duty, the evidence in my view does not support that contention. The Registrar/Sheriff had appointed an experienced person well versed in the work of enforcement of Court judgements. He was entitled to rely on the bailiff's professional experience. He did so. However as soon as complaint was raised against the bailiff, the Registrar/Sheriff took the matter of complaint up with the bailiff. He sought explanations from the bailiff; requested the bailiff to return the files; requested the bailiff to return part o the money; and threatened the bailiff with possible police investigation. In Doc. 22 the Registrar/Sheriff wrote to the bailiff pointing out that some money ought to be returned to the defendant in CC100/95 (the plaintiff in the present case). Correspondence in this regard ensued between the various parties including the plaintiff, the judgement creditor and the Registrar/Sheriff. No response came from the bailiff until 21 February 1996 in which be provided explanations justifying his actions including that of retaining the amount here claimed by the plaintiff. Except for the complaint of unlawful retention of the sum of $80,499.14 the bailiff did what was expected of him in enforcing the judgment in CC100/95. There was no inaction or carelessness on the part of the Registrar/Sheriff upon being notified of the complained action of the bailiff. There is no evidence to substantiate the claim that the Registrar/Sheriff was guilty of any act of negligence in this case.

There is that point raised by the learned Attorney General regarding the duty of the Sheriff toward the plaintiff in this case. In my view there is no duty owned by the Sheriff to the plaintiff. If there is any, it has not been established. A duty however existed between the Sheriff and the judgement creditor as far as CC 100/95 is concerned. That duty between the Sheriff and the judgement creditor is one founded in contract for the purpose of satisfying the judgment on behalf of the creditor. The Sheriff or bailiff is to enforce the judgement on behalf of the judgement creditor in return for the payment of the Sheriff's or bailiff's fees and charges. If the Sheriff or Bailiff having done his work and had not been paid his fees and charges, he is entitled to sue for them. What duty the Sheriff owed to the judgement debtor (the plaintiff) in this case has not been established, if there was any.

There was also the allegation that the Registrar/Sheriff had breached his statutory duties, in particular O.54, r10 which provides that the Sheriff is responsible for sales in execution of judgement. It is said that the Sheriff did not authorise the sale of the plaintiff's vessel. To this argument I feel the answer lies in the authority given to the bailiff who was authorised to exercise the legal functions of the Sheriff in executing the order of the Court. In my judgement the Registrar/Sheriff had not breached his statutory duties.

In view of all that I have said, it is not incumbent on the Court to deal with the issues of immunity as raised by the defendant pursuant to section 4(5) of the Crown Proceedings Act and Section 16(3) of the Magistrates Court Act. The consideration of matters raised under those provisions can await another day.

For the present case, I am content to come to the conclusion that the plaintiff's claim against the defendant cannot be maintained. There is evidence to suggest that not all of the money claimed by the plaintiff here should be retained by the bailiff although he (bailiff) said he was so entitled. I do not think that it falls on the Registrar/Sheriff to enforce the return of that amount or how much of it, to the plaintiff. The Registrar had taken some action to assist in resolving the matter but it would be for the plaintiff to take the appropriate action to enforce its claim over the said amount.

In the circumstances the plaintiff's claim is dismissed with costs.

(Sir John Muria)
CHIEF JUSTICE