Plowman v Palmer [1914] HCA 41

Plowman v Palmer [1914] HCA 41

Issuing a writ of habere facias without obtaining a special order under Equity Rule 210 is an irregularity, not a nullity; so long as the writ has not been set aside, justification is available for those acting under it in removing a person from possession according to the judgment. Thus, the appeal fails and justification is established for the respondents’ conduct.

Parties
Appellant; Plaintiff: George Plowman; Respondent; Defendant: William Harrington Palmer; Respondent; Defendant: Alfred Edward McIntosh; Respondent; Defendant: John Gordon Crowther
Jurisdiction
Australia
Judgment Date
11 August 1914
Procedural Posture
Appeal (civil) / Decision on Appeal From Supreme Court of New South Wales
Outcome
appeal dismissed with costs
Legal Topics
Enforcement of Judgments, Writs of Habere Facias, Irregularity Vs Nullity of Process, Justification in Assault Due to Execution of Writ
Bankruptcy Law Civil Procedure Enforcement of Judgments Writs of Habere Facias Irregularity Vs Nullity of Process Justification in Assault Due to Execution of Writ

Case Brief

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Parties

George Plowman

Appellant; Plaintiff

William Harrington Palmer

Respondent; Defendant

Alfred Edward McIntosh

Respondent; Defendant

John Gordon Crowther

Respondent; Defendant

Procedural Posture

Appeal (civil) / Decision on Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether a writ of habere facias issued without special order under Equity Rule 210 is a nullity or merely an irregularity
  2. 2 Whether justification is available in an assault action based on possession taken pursuant to such a writ
  3. 3 Whether compliance with Supreme Court Equity Rules is necessary for the validity of a writ issued in bankruptcy jurisdiction

Ratio Decidendi

Issuing a writ of habere facias without obtaining a special order under Equity Rule 210 is an irregularity, not a nullity; so long as the writ has not been set aside, justification is available for those acting under it in removing a person from possession according to the judgment. Thus, the appeal fails and justification is established for the respondents’ conduct.

Court Disposition

appeal dismissed with costs

Orders

  • Appeal dismissed with costs