Sheriff Act 1900 Review


Contents Of A New Sheriff Act

2.1 The Sheriff Act 1900

As a first step in reviewing the office of the Sheriff, the current provisions of the Sheriff Act 1900 are considered to see if any of these provisions should be contained in a new Act.

Sections 1 and 2 of the current Act merely refer to the name and transitional arrangements for the implementation of that Act.

3. Tenure of office
The office of sheriff shall be holden during pleasure.
Currently the Sheriff is a senior executive officer of the Attorney General’s Department See Schedule 3B of the Public Sector Management Act 1988. Under the Public Sector Management Act 1988, appointments to vacant senior executive positions are to be made by the Governor on the recommendation of the appropriate Department Head Public Sector Management Act 1988 (NSW) section 13. The Act goes on to state that the Governor may remove an executive officer from an executive position at any time Public Sector Management Act 1988 (NSW) section 42Q. However, the Sheriff is now appointed for a term of five years. The Public Sector Management Act expressly prevails over any inconsistent Act or law Public Sector Management Act 1988 (NSW) section 42Z. Thus section 3 of the Sheriff Act looks at best to be a restatement of the Public Sector Management Act and so would appear to be redundant.

The simplest arrangement, if it is considered necessary to address the Sheriff’s appointment in the Sheriff Act, may be to merely state that the Sheriff shall be employed under the Public Sector Management Act.

An alternative arrangement could be for the office of the Sheriff to become a statutory office granted for a particular period of time, for example a period of five years For example section 34 and Schedule 1 of the Privacy and Personal Information Protection Act 1998 which sets up the office of the Privacy Commissioner.. This may serve to make the office more independent. Arguments for independence may be made because of the Sheriff’s role in the jury process where the Government may be a party to a proceeding or where the Government may otherwise have an interest in the outcome of a particular proceeding. Likewise, it could be argued that greater statutory independence may be needed in relation to the service of process where the Government has an interest.

Against this it may be argued that the independence of the Judiciary and legal profession is safeguard enough, making a more independent Sheriff unnecessary.



Q.1 What, if anything, should be included in a Sheriff Act relating to the appointment, tenure and dismissal of the Sheriff?

Sections 4 - 7 of the Sheriff Act 1900 relate to redundant accounting practices which have been superseded by the requirements of the Public Finance and Audit Act 1983. It is therefore believed to be unnecessary to incorporate any such provisions in a new Sheriff Act.

8. Sheriff or deputy to attend Courts
The sheriff shall personally or by a deputy be in attendance upon the Supreme Court, and the District Court during every sitting of the said Courts; and in every case of non-attendance upon any of the said Courts shall be liable to a fine not exceeding 1 penalty unit to be summarily imposed at the discretion of such Court for such non-attendance.

The first matter to note here is that a deputy Sheriff should not be confused with a Sheriff’s officer, the former is a traditional honorary office, akin to the role of justice of the peace, while the latter are professional employees of the Office of the Sheriff. The role of a deputy Sheriff is to attend upon judges when they are conducting circuits and to render some administrative assistance. The office has traditionally been held by local dignitaries and has evolved into a predominantly ceremonial role. There are currently about a dozen deputy Sheriffs, however, none have been appointed for a number of years.

It is arguable that if the work carried out by a deputy Sheriff is essential for the proper functioning of the courts, then paid employees should conduct this work, rather than relying on the goodwill of a few individuals. While there are clearly some potential savings in having an honorary office, it has long been recognised that the modern justice system requires professional people with professional training to carry out its core functions. It should be noted that the existence of Sheriff’s officers have now made the role of deputies redundant.

It has been suggested by the Crown Solicitor that the office of deputy Sheriff may have been effectively abolished as a result of the Sheriff becoming a senior executive position under the Public Sector Management Act. It is argued that the power to appoint deputies was contained in the Charter of Justice of 1824 and that this power was dependant upon the power to appoint the Sheriff which was contained in the same enactment. This part of the Charter of Justice was therefore constructively repealed when the Sheriff’s appointment became subject to the Public Sector Management Act.

In order to clarify matters, it is proposed to abolish the office of Deputy Sheriff.

Section 8 raises the issue of whether there should be compulsory attendance by the Sheriff or a Sheriff’s officer at sittings of certain courts See also District Court Rules 1973 (NSW) clause 2A “The Sheriff's Officer at, or bailiff for, a proclaimed place shall, if required by the Judge presiding thereat to do so, attend any sitting of the Court at that place.” . If so, the second issue must be to identify those courts or tribunals to which this compulsion should apply.

One possible model would be along the lines of the South Australian Sheriff’s Act which requires that the Sheriff or a Sheriff’s officer attends every criminal sitting of the Supreme or District Court and any other court where a court specifically requests attendance Sheriff’s Act 1978 (SA) section 9. In the Northern Territory, while the Sheriff is required to attend on all criminal sittings of the Court and other sittings when the court requests attendance, a judge may also appoint a person to exercise and perform the Sheriff’s duties if the Sheriff is not in attendance Sheriff Act 1979 (NT) section 18.

An alternative would be to make no statutory requirement and to leave all attendances by Sheriff’s officers to more flexible administrative arrangements. In this regard it should be noted that there is no requirement in NSW legislation for the compulsory attendance of Sheriff’s officers (as distinct from the Sheriff or a deputy Sheriff) and so every such attendance is currently the result of administrative arrangements. It may also be relevant to note that court reporters, like Sheriff’s officers are an important and often essential element of a properly functioning court, yet it has not been considered necessary to enact legislation requiring a court reporter to attend a court.

If compulsory attendance is considered to be necessary, then it will also be necessary to identify the courts and or tribunals to which this compulsion will apply. For example there is currently no requirement for the Sheriff or his officers to attend the sittings of the Local Court despite the fact that Local Courts deal with the majority of criminal matters in NSW.

2.1.4 Service of Supreme Court documents

8A. Sheriff may effect service
The sheriff or any of the sheriff's officers may serve any judgment, order, pleading, affidavit, notice or other document in any proceedings in the Supreme Court.
This section applies only to the Supreme Court and grants the Sheriff power to effect service of certain documents. In other jurisdictions such as the District Court these powers of the Sheriff are contained within the District Court Act 1973 and the District Court Rules 1973. For consistency it may be appropriate for the section 8A power to be placed in the Supreme Court Act 1970 or the Supreme Court Rules 1970. This approach is more consistent with the overall direction taken in the Sheriff Act review process, being to place the powers of the Sheriff in the substantive Acts relevant to the specific power rather than to try and contain all powers within the Sheriff Act 1900.

Alternatively, it may be appropriate to place a widely drafted clause in the Sheriff Act making it clear that the Sheriff is able to serve process on behalf of any Court or Tribunal.

If it is considered to be appropriate to include a broad power to serve process in a new Sheriff Act it may also be appropriate to include a broad power to execute a writ. The Northern Territory legislation states that it is the duty of the Sheriff to:


serve or execute all writs, summonses, orders, warrants, precepts, process, and commands of the Court that are directed to him, and to make such return of them to the Court, together with the manner of their execution, as he is required by them. Sheriff’s Act 1979 (NT) section 7(1)(a)

A final issue which is raised by the Northern Territory law is whether the Sheriff should be duty bound to serve and execute writs and other process, or whether the Sheriff should be able to refuse in certain circumstances. Given that the Sheriff is an officer of the executive arm of government, refusal may provide scope for political interference with the judicial process. However, there may possibly be circumstances where it is quite difficult or unreasonable for the Sheriff to be compelled to follow a given direction.

Q.4 Should the Sheriff be obliged to serve or execute any process that is directed to him or her?

2.1.5 Fees

9. Fees
The Governor may, from time to time, fix the scale of fees to be chargeable in the sheriff's office in respect of all matters pending at any time in the Supreme Court.
While it appears to be reasonable for the Sheriff to continue to charge fees for the services offered, the main issue is the manner in which the fees are set.

Fees in relation to court processes are generally spelt out in Regulations made under the relevant Act. This has the advantage of providing an open and accountable system by being subject to Parliamentary scrutiny, disallowance and the oversight of the Regulation Review Committee. It also means the fees are less likely to be altered as the processes for adjusting fees are more complicated. A more inflexible system can be advantageous as it enables people to more readily calculate the full cost of a court proceeding in advance.

2.1.5.1 Security for fees

Another issue that arises in relation to fees is the ability in certain circumstances for the Sheriff to request a deposit or to obtain payment in advance. A provision to this effect is included in the Sheriff Act of British Columbia which states:

10 A sheriff is not required to effect execution or seizure under any process, unless, if demanded by the sheriff,
(a) all reasonably anticipated costs of the process are first paid to the sheriff, or
(b) an undertaking satisfactory to the sheriff is given by the person initiating the process Sheriff Act 1996 (British Columbia) section 10. The same clause is also included in the Prince Edward Island Sheriffs Act 1990 at section 7..

The Northern Territory Sheriff Regulations contain a similar provision authorising the Sheriff to obtain a deposit Sheriff Regulations 1967 (NT) clause 14.

A power to obtain payment in advance generally ensures that people are able to pay for particular goods or services. This would allow the Office of the Sheriff to protect itself from bad debts and can therefore assist to minimise costs to the taxpayer. Against this it could be argued that the Sheriff has a monopoly over some processes and so could potentially apply unreasonable security demands without the risk of clients going elsewhere.

2.1.6 Direction of process to a person other than the Sheriff

Sections 10 and 11 of the Sheriff Act 1900 permits the Supreme Court to direct process to a person other than the Sheriff and describe the fees to be charged in such circumstances.

10. Direction of process to person other than the sheriff
In all cases where, notwithstanding the direction of any process of the Supreme Court to the sheriff, the said Court is by clause thirteen of the Charter of Justice required to direct by what person and in what manner such process shall be executed, the process may if the said Court sees fit, be directed to such person instead of to the sheriff.

11. Fees
In any case where the Supreme Court:

(a) pursuant to clause twelve of the Charter of Justice, nominates and appoints some person other than the sheriff as the person to whom the process of the said Court shall be directed, or
(b) pursuant to clause thirteen of the Charter of Justice, notwithstanding the direction of any process of the said Court to the sheriff, directs by what person and in what manner such process shall be executed, or
(c) pursuant to section ten of this Act directs process to a person other than the sheriff,
the fees paid in ordinary cases to the sheriff by the person against whom such process is sued out shall be due and payable to the person suing out such process, except the fees for registering the warrant and returning the same.

The inclusion of these provisions within the Sheriff Act is anomalous in that they really do not deal directly with the Sheriff, but with a person who is carrying on functions similar to the Sheriff. It is therefore suggested that these clauses, if still considered necessary, would be better contained in other legislation such as the Supreme Court Act or the rules made pursuant to that Act.

12. Sheriff relieved from responsibility
In any of the cases mentioned in section eleven of this Act the sheriff, although the process may be in fact directed to the sheriff, shall not be responsible for any act done under or in respect of such process or by colour thereof; but the person aggrieved by any such act shall have the same remedy and right of action against:
(a) the person to whom the process was directed, or the person appointed to execute the same, as the case may be, or
(b) the person suing out the process, or
(c) both such persons, separately or jointly,
as the person aggrieved would have had against the sheriff if such process had been directed to that officer and the act complained of had been done by that officer.
This section is meant to provide protection to the Sheriff from the common law personal liability of the Sheriff. This liability also extends to include the actions of others appointed by the court to serve and execute process.

Personally liability has made the office of the Sheriff particularly unattractive at various times throughout its history with a number of its holders being financially ruined See Bennett, J.M. “The Office of Sheriff: Historical notes on its Evolution in NSW” 7 (1976) Sydney Law Review 360. This is clearly not a satisfactory situation, either for the Sheriff, or for any person wishing to make a claim, particularly if that claim is a substantial one.

There are distinct two aspects to this issue which need to be addressed. Firstly, whether the Sheriff should be personally liable for the actions of others and secondly, whether the Sheriff and Sheriff’s officers should be personally liable for their own actions when these occur in good faith and in the execution of their duties.

In relation to the first issue, it is hard to see any justification for the Sheriff retaining personal liability for the activities of others. This appears to be an outdated concept that does not fit well with the idea of the Sheriff being an employee of the state.

The second related issue is whether there should be some sort of bar on actions against the Sheriff or Sheriff’s officer where that person has acted in good faith when carrying out a statutory duty. Many other statutory offices include such a protection Some examples can be seen in section 66 of the Privacy and Personal Information Protection Act 1998 (NSW); section 85 of the Food Act 1989 (NSW); section 16 of the Home Care Service Act 1988 (NSW); section 213 of the Police Service Act 1990 (NSW); and section 77 of the Public Health Act 1991 (NSW) and it is arguable that this is important to encourage officers to carry out their duties properly. It should be noted that this will not remove the right of injured persons to seek redress. The Law Reform (Vicarious Liability) Act 1983 makes the Crown vicariously liable in respect of torts committed by its servants and by persons in the service of the Crown despite statutory exemptions Law Reform (Vicarious Liability) Act 1983 (NSW) section 10.

Both the above matters have been addressed under the South Australian Sheriff legislation by making all civil liability for wrongful or negligent acts or omissions by the Sheriff or Sheriff’s officer lie against the Crown. In such cases liability is to be determined in accordance with the law of torts Sheriff’s Act 1978 (SA) section 12

12. (1) Subject to this section, civil liability for any wrongful or negligent act or omission of the sheriff, a deputy sheriff or a sheriff's officer in the course of carrying out duties assigned by or under this Act will be determined in accordance with the law of torts.

(2) The sheriff, a deputy sheriff or a sheriff's officer incurs no personal liability in tort for any act or omission in the course of carrying out those duties.

(3) Any action or claim to which the sheriff, a deputy sheriff or a sheriff's officer would, but for subsection (2), be liable lies against the Crown. . A similar provision is also found in Queensland where all actions against the Sheriff or Sheriff’s officers are to be against the Office of the Sheriff and all damages and costs paid by Treasury from the consolidated fund Supreme Court Act 1995 (Qld) section 234.

2.1.8 Impersonation of the Sheriff

13. Impersonation of sheriff or sheriff's officers
A person shall not impersonate the sheriff or an officer of the sheriff.
Maximum penalty: 5 penalty units.
This matter is dealt with in more detail under the heading “Offences” on page 20.

14. Proceedings for an offence
Proceedings for an offence against this Act shall be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.
This matter is dealt with in more detail under the heading “2.1.9 Proceedings for offences” on page 23.