Attorney General v. Ng Kee

CACV000008A/1977

Coram: Briggs, C.J., Pickering, J.A. and Leonard, J.

Date of Judgment: 16th January, 1978.

-----------------

JUDGMENT

-----------------

1. In 1962 the respondent was authorized by the Commissioner of Transport to register and license six vehicles as New Territories taxis. New Territories taxis were taxis but they were only allowed to ply for hire in the New Territories. The respondent renewed the licence of one of his taxis, No. AB 4936 annually until 1967 when the Commissioner of Transport refused to renew its licence.

2. It is not in dispute that that refusal was wrongful and that the act of the Commissioner in refusing to re-register the taxi was ultra vires. The Commissioner purported to act under regulation 6(c) of the Road Traffic (Taxis, Public Omnibuses and Public Cars) Regulations 1964. This reads as follows:-

3. The Commissioner had evidence that the driver of the taxi in question had plied for hire outside the area of the New Territories on two occasions. He could therefore have exercised his powers under regulation 6(b) of the Regulations which provided that the Commissioner could refuse to register a taxi where there had been a breach of the conditions contained in the licence. However, he did not invoke this paragraph of the regulation, he made use of paragraph (c) wrongfully as I have said above.

4. The respondent brought an action for a declaration that he be entitled to re-register and re-license the taxi in question and for damages. In other proceedings the Court of Appeal has held that the respondent was entitled to the declaration he sought. And we understand that the respondent has re-licensed a vehicle in the appropriate manner.

5. In his Statement of Claim the respondent claimed the sum of $120,035.20 as loss of profits. The judge in the court below awarded him $9,000 damages stating that the basis of the award was the loss of profits to the respondent for being without one of his taxis. This appeal is only concerned with the question of damages. Though the award involved is relatively small an important principle is involved.

6. It is the contention of the Crown that though the act of the Commissioner was ultra vires, and though that act caused loss to the respondent, the respondent has no right to recover damages, his only remedy being to obtain a declaration that the act was wrongful. And this, of course, the respondent has done.

7. Basically, the argument is this: In English law there is not a law of tort, there is a law of torts. It is not enough for a plaintiff to prove that the conduct of the defendant has caused him loss. He must prove that the conduct of the defendant complained of constitutes a tort recognized by the law. And the conduct of the Commissioner of Transport does not constitute any tort known to English law. We are not concerned in this case with breaches or possible breaches of contract. There was no contractual relationship between the parties.

8. The judge in the court below held that damages were recoverable because the act of the Commissioner was not "a mere failure to comply with a statutory duty binding only upon the Crown or its officers". The judge said: "It was not a mere failure on the part of the Commissioner. It was an active and independent misuse of power". And he held that in such a case there was a right of action.

9. It was conceded on the part of the Crown that a person who suffers loss from the unlawful act of a public authority where malice or bad faith is proved can recover damages. However, the matter is not absolutely free from doubt. In S.A. de Smith's Judicial Review of Administrative Action, the learned editor has this to say (at p.296):-

10. In his judgment, the judge stated that it was settled law that a refusal to grant a licence coupled with malice on the part of the public official will found an action in damages. He quoted two authorities for that proposition: David v. Cader⁽¹⁾ and Central Canada Potash Co. Ltd. and Another v. The A.G. for Saskatchewan and Others⁽²⁾.

11. With respect to the learned judge, David v. Cader⁽¹⁾ does not go as far as that. All that the court held in that case was that there may be a right of action in such circumstances. It is a decision of the Privy Council and concerns Roman Dutch law. Nor was the Crown a party to the action. The Saskatchewan Case⁽²⁾ again is not in itself authority for that proposition because the true cause of action in that case was the tort of intimidation.

12. However, we need not consider this line of cases. No malice or bad faith was pleaded in the present case. It was not referred to at the trial and the trial judge made no finding of malice or of bad faith. Indeed, it is clear from the judgment that he thought that the act of the Commissioner complained of was "an honest mistake".

13. There is authority for the proposition that if a public officer acts ultra vires with the knowledge that he is so acting any resulting damage may be recovered. The headnote of the case of Farrington v. Thomson & Bridgland⁽³⁾ reads in part as follows:-

"(2) If a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, an action in tort for misfeasance in a public office will lie against him at the suit of that person."

14. In that case the court found as a fact that two police officers who ordered the closure of an hotel, intentionally purported to be exercising a power which they knew they did not possess. In such a case, damages are recoverable for the tort of misfeasance in a public office. It was not pleaded in the present case that the Commissioner knew he was acting wrongfully.

15. There was no finding of fact that the Commissioner knew that he had no power to refuse the registration of the licence when he made that decision. Indeed, it is quite obvious from the facts that this is not so.

16. The question for decision in the present case is: Has a person a cause of action where he has suffered loss by reason of the act of a public officer who has acted ultra vires without malice or knowledge that he was so acting?

17. The following passage occurs in the judgment of Lord Moulton in Everett v. Griffiths⁽⁴⁾

"If a man is required in the discharge of a public duty to make a decision which affects, by its legal consequences, the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to make such a decision in the discharge of his duty to the public and then to leave him in peril by reason of the consequences to others of that decision, provided that he has acted honestly in making that decision."

This passage was quoted by the learned trial judge in his judgment. And it undoubtedly states the true position.

18. Another case is O'Connor v. Isaacs⁽⁵⁾. That case is clear authority for the proposition of law that no action for damages will lie at the suit of a person who is the victim of an order made by a public officer ultra vires in the absence of malice.

19. A Magistrates Court made an order that a husband must pay maintenance to his wife. The husband obeyed the order in part but fell into arrears and was on more than one occasion sent to prison for failing to pay. A long time after the order was first made, the husband discovered that the magistrates had acted without jurisdiction. He brought an action against the magistrates for false imprisonment. This was found to be statute barred. He then sought to recover the moneys he had paid to his wife under the order. He sought to rely on a proposition to the effect that as the magistrates had acted ultra vires he, the husband, was entitled to recover the moneys he had spent as a result of obedience to the order which was ultra vires. This did not find favour with the court.

20. Singleton, L.J., in the Court of Appeal, quoted with approval the following passage from the judgment of Diplock, J., the judge of first instance (at p.351):-

"I hold, therefore, that at common law an action would lie against magistrates acting without jurisdiction for trespass. Therefore, it would lie in respect of false imprisonment and it would lie in respect of distress for goods. Mr. Fox-Andrews asks me to hold that it would also lie for money paid by the plaintiff pursuant to an order of the court, although no steps had been taken to enforce that order by distress or by commitment. That is to say, he says that a cause of action lies in respect of moneys which the plaintiff paid to his wife under the order of August 18, 1941, and the subsequent variations. At common law one cannot find in the reported cases any trace of an action of this kind lying in the absence of malice. I think one must ask oneself: what is the nature of the cause of action? Plainly, it cannot be indebitatus assumpsit as money had and received, because the money was not received by the magistrates, it was paid to their collecting officer for the use of the wife, and it was money which was paid under a pure mistake of law, namely, that the order was a valid order, a mistake of law which was shared by the magistrates and by the plaintiff. The action, therefore, must be (to use the old phraseology, and I am looking at the old common law position) an action on the case in tort." 'The judge, having cited the authorities, added:' "I therefore take the view that at common law the right of action in trespass for false imprisonment existed, but in the absence of malice no right of action existed for the money paid."

21. In the Court of Appeal, Lord Justice Morris had this to say (at p. 363):-

"There are many cases in the books where actions have been brought against justices, but they have been brought because a plaintiff has been detained or because his goods have been seized or in similar circumstances. If a man is imprisoned, then lawful authority for his detention must be forthcoming; if it is not, then justices who have wrongly ordered his detention may be liable. Where a man is wrongly imprisoned and has to make payments before he can be released, then the amount of such payments may be recovered as part of his damages (see Clark v. Woods, Smith and Cooper (17 L.J.M.C. 189) Norton v. Monckton (43 W.R. 350) and see section 13 of the Act of 1848.) But the right of action comes about by reason of the trespass to the person: the wrongful or abortive order is of no avail to justify what has been done. It is not the mere making of the order that constitutes the cause of action. If the order is one for the payment of money and if it is made without jurisdiction, then it need not be obeyed. Appropriate steps can be taken to quash it or to reverse it on appeal. But it does not seem to me that if these steps are omitted a claim for damages can later be presented against justices based merely on the fact that they made an order requiring payments to be effected. I would dismiss the appeal."

22. The respondent in the present case was unrepresented at the hearing of the appeal. Mr. Edmonds, who appeared for the Crown, drew our attention to the case of Brasyer v. Maclean⁽⁶⁾ a decision of the Privy Council on appeal from the Supreme Court of New South Wales.

23. The defendant was the Sheriff of New South Wales. A writ was issued against one Wylie at the suit of one Face and it was delivered to the Sheriff to be executed. The Sheriff made a return which was false in that it referred to the fact that Wylie had been rescued from his custody by the plaintiff but re-taken. An attachment for contempt was issued by the court against the plaintiff and he was imprisoned for one day. The court held that though the Sheriff had acted without malice he was liable in damages to the plaintiff.

24. Sir Barnes Peacock had this to say (at pp.405 and 406):-

25. The facts of that case are very different from the facts of the present case and are very unusual. It was a case in effect of a public officer causing a person to be falsely imprisoned. The plaintiff was ordered by the court to be imprisoned for a contempt of court of which he was not guilty.

26. It should be pointed out that this case, which was decided in 1875, is only referred to in one other case of all the cases which have been brought to our attention, namely, in Farrington v. Thomson⁽³⁾. Nor was it brought to the attention of the trial judge. We do not think that it is of such authority that it must be followed blindly. Indeed, it concerns a ministerial act of a judicial officer and we think is easily distinguishable on the facts from the present case.

27. It follows from the above that the respondent's claim for damages must fail. In the absence of malice on the part of the Commissioner and knowledge that he was acting ultra vires there is no cause of action for damages. Though the respondent has suffered loss by reason of the ultra vires act of the Commissioner he cannot recover that loss from the Commissioner.

28. The respondent filed a Respondent's Notice. At the time of the hearing of the appeal he was unrepresented. He told the court that he did not wish to argue the points referred to in his Notice.

29. The appeal must be allowed and the judgment for $9,000 set aside. The cross-appeal of the respondent is dismissed. There will be no order for costs.

30. This is the judgment of the court.

Representation:

Edmonds for appellant/crown

Respondent in person

(1) (1963) 1 W.L.R. 834.

(2) (1976) 57 D.L.R. (3rd) 7.

(3) (1959) Victorian Reports 286.

(4) (1921) 1 A.C. 631 at p.695.

(5) (1956) 2 Q.B. 288.

(6) (1875) 6 P.C.A. 398.