Suppose a Court Registrar/Clerk issues an enforcement instrument against a party to enforce a judgment debt, but the Court later rules that this instrument was invalidly issued (i.e., the Registrar/Clerk should not have issued it). To be clear, this is not just a snafu in the paperwork --- for various technical legal reasons, the Court rules that this type of instrument cannot be validly issued against this party at all (even though it was, in fact, issued against them). The applicant for that instrument relied on it, and suffers loss as a result of its invalidity. (If the applicant had known it was invalid, he would have sought other enforcement methods in the meantime, but that opportunity has now been lost.)

Can the plaintiff sue the Court Registrar/Clerk (which issued the invalid instrument) for negligence, or on some other cause-of-action? Does the Registrar/Clerk have any form of judicial immunity that would alter the standard position of a suit for negligence? Also, in a negligence suit of this kind, would it be expected that the Court Registrar/Clerk has the duty of care to only issue valid instruments, or would it be expected that the applicant is the one that bears the onus of determining validity of the instrument issued at his request?

Jurisdiction of interest: Interested in any common-law jurisdiction, but mostly interested in Federal Court in Australia.

  • Can you define court registry for those of us not in Australia? – Putvi Apr 30 '19 at 23:28
  • In various courts in Australia, the court's rules allow "the Court" to issue various enforcement instruments (e.g., garnishment orders, etc.). Many of these can be issued by the Court Registrar, who is not a judge, but is a trained lawyer who runs the Court Registry (i.e., the part of the court where you file documents, make applications, etc.). These instruments are considered to have been issued by "the Court". – Ben May 1 '19 at 0:15
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    You may be able to sue the court itself. At least in New Zealand this is possible. – Greendrake May 1 '19 at 12:32

Court Registrars, in the performance of their duties, have the same immunity from civil action as judges i.e. total immunity

They cannot be sued: period. Even if they act corruptly or maliciously - although they can be criminally prosecuted for that.

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    Can you or Ben elaborate more? I am not saying you are wrong since I am not from Australia, but this does not sound like a way any valid court is ran based on my experiences in America. – Putvi May 1 '19 at 16:31
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    @Putvi You can’t sue the court in America either – Dale M May 1 '19 at 20:27
  • You can't sue as in ask for money, but you can file paperwork to make them correct an error, if there is one, in most cases. – Putvi May 1 '19 at 20:28
  • @Putvi you can do that here too but it’s discretionary on the part of the court. They will usually do it but not if it prejudices the other party. However, the OP appears to have run into a problem that’s not correctable this way. – Dale M May 1 '19 at 20:32
  • I get that he says it's not correctable that way, but I just don't see how. If they collected money they shouldn't, they can give it back is what I meant. – Putvi May 1 '19 at 20:34

American procedures are a little different than that in most states, but I am going to try to answer your question as I read it.

The way I understand it is that the court ordered a party to pay you. The clerk of the court (as we would say in America) sent an order to that party to pay. The order turned out to not be valid.

If that is the way it worked, you shouldn't have been out anything. You should just have the court fix the paperwork.

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  • There is no capacity here to "fix the paperwork" - the question assumes that this type of instrument cannot be validly issued against that party (even though it was actually issued). I have edited the question to make this clearer. – Ben May 1 '19 at 0:16
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    Of course the OP can be "out something" - if they were issued an enforcement instrument and then paid an enforcement company (private bailiffs, the local police if they offer a service to act as instrument enforcers) to enact the enforcement notice, only for the other side to contest it and have it ruled invalid, then the OP is out the money they paid the enforcement company. Then theres the court and legal costs involved in finding out the instrument is invalid and then applying for the correct one. And what if the enforcement instrument was against something time sensitive? – user4210 May 1 '19 at 4:27
  • @Moo I am not from Australia, but you don't pay to have the court collect in America. – Putvi May 1 '19 at 16:20

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