Contents

Chapter 8
Crown Civil Proceedings Bill and commentary

Crown Civil Proceedings Bill Part 2 – Substantive matters

Clause 6 − Coverage of the Act

6 The Crown may sue and be sued in civil proceedings
Subject to this Part, the Crown may sue and be sued in civil proceedings in the same way as any other person.

Commentary

This provision enacts the principle of equality that is at the heart of the Bill, that the Crown can sue and be sued as if it had the legal capacity of others. We have drafted the provision to make this effect clear. It should be noted, however, that the intention of the provision is enabling rather than restrictive. The provision should not be read as requiring the same obligation to be owed by someone other than the Crown or the Crown’s employee.

The provision is of similar effect to that currently in section 3 of the Crown Proceedings Act. It sets out in detail what claims can be brought, the intention being to cover all claims that can be brought against private individuals. We have chosen to avoid the “laundry list” approach of the current section 3, preferring a general enabling provision. The result is somewhat less technical and more directly focused on the policy that it is designed to acknowledge, that the Crown can be sued. We have, for instance, replaced the rather convoluted and somewhat confusing phrase “cause of action” with a simple statement in clause 6 that the Crown can be “sued in the same way as any other person”. Our draft provision seeks to bring this provision in accordance with the language used in New South Wales and British Columbia.155

A specific tort provision, like section 6(1) of the current Act, is no longer needed. The provision we have included will incorporate statutory duties placed on the Crown, as well as vicarious liability for the actions of employees, to the extent such vicarious liability remains relevant.

Clause 7 − Direct liabilityTop

7 Direct liability of the Crown
(1) A court may find the Crown itself liable in civil proceedings.
(2) Subsection (1) applies—
(a) whether or not a court would be able to find another defendant liable; and
(b) despite any immunity from liability of relevant Ministers or Crown employees (and for the purpose of determining whether the Crown is liable, the court must disregard the immunity).

Commentary

This provision would make the Crown directly liable in the same way as any other person for obligations that are owed directly. It can be compared with section 6 of the current Act. See Chapter 3 for discussion.

Clause 8 − Crown’s other rightsTop

8 The Crown’s other rights in civil proceedings
(1) Nothing in section 6 interferes with or restricts any special power or authority vested in the Crown or in any person on its behalf.
(2) The Crown may take advantage of a statutory provision of general application (for example, a statutory defence) even if not named in the provision.

Commentary

This provision is carried over from the 1950 Act. The purpose is to leave the Crown in the same position as if it were another party to litigation. It makes sense, therefore, that the Crown can benefit from the statutory protections that are enjoyed by others. Section 8(1), however, recognises that statutes or prerogatives give the Crown, and its employees, numerous powers that others do not enjoy. This Bill should not be read as somehow stripping away or modifying those rights. Nor, of course, ought it affect the different obligations that the Crown, or its employees, are under. Rather, the Bill is designed to give the ability to take civil proceedings against Crown.

Clause 9 – RemediesTop

8.6There are several alternative options in relation to clause 9. The first pair of alternative options (options (a) and (b)) relate to the question of whether the Bill should retain different treatment for the Crown by providing for different remedies. The third option (option (c)) relates to the question of whether to retain the in rem exclusion.

Option (a): Retaining different treatment for the Crown

9 Remedies against the Crown
(1) Except as provided in this section, a court may grant any remedy in civil proceedings against the Crown.
(2) If the public interest requires, a court may make a declaratory order about any party’s rights or entitlements instead of ordering any of the following against the Crown:
(a) an injunction;
(b) an attachment;
(c) specific performance;
(d) the conveyance of land or property.
(3) A court must not make an order against a Minister, department, or Crown employee if the effect of the order is to circumvent subsection (2).

Option (b): Removing different treatment for the Crown

9 Remedies against the Crown
(1) A court may grant any remedy in civil proceedings against the Crown.

Commentary

Clause 9(1) would create the same default position for both options, namely that the same remedies may be granted against the Crown as might be awarded against private individuals. The intention of this provision is to be enabling, so that the Crown is at least subject to the remedies that other litigants might be. The provision ought not, for instance, to prevent the award of public law compensation on the basis that it, arguably, cannot be awarded against private parties. Nor should the provision be taken as preventing remedies that are otherwise peculiar to the Crown being awarded, if such a remedy might otherwise survive. We note that most of those remedies will be superseded by this provision or have already been abolished.

The two alternatives are provided in deference to the discussion in Chapter 5 that there may be circumstances in which some remedies are inappropriate, especially those that involve the transfer of property or the compelling of certain actions. In option (a), injunctions, attachment, specific performance, or the conveyance of land or property might be denied on the grounds of public interest. This seems to us a much more tailored ground for disparate treatment than the broad exemption of the Crown from such remedies. It would assist the Crown in seeking not have to have an order made that might otherwise have been made against a private individual. In option (b), remedies would simply be considered as they are in other cases.

Option (c): Retaining an in rem exclusion

9 Remedies against the Crown
(4) Despite section 6 and subsection (1), this Act does not—
(a) authorise in rem proceedings against the Crown; or
(b) authorise the arrest, detention, or sale of any Crown property; or
(c) give any lien on any Crown property.
(5) If, at the time of filing proceedings in rem, a plaintiff reasonably believed that the relevant property was not Crown property, but it was Crown property, the court may order that the proceedings continue on terms that the court thinks just.
(6) In subsections (4) and (5), Crown property means a ship (which includes every description of vessel used in navigation that is not propelled by oars), an aircraft, cargo, or other property belonging to the Crown.

Commentary

Despite the numbering of the subsections in our draft of option (c) above, this option could be adopted in combination with either option (a) or (b). It retains the exception excluding in rem proceedings, currently in section 28 of the Act. Under this option the Crown’s ships or aircraft, most of which would be New Zealand Defence Force property, would not be subject to arrest or any of the other consequences of in rem proceedings.

Clause 10 − Contribution and indemnityTop

10 Contribution and indemnity
The same rules about contribution and indemnity apply to the Crown as apply to any other person.

Commentary

This provision replicates section 8 of the Act. It is included simply out of caution, as almost certainly the common law position that contribution or indemnity could not be sought against the Crown would itself be abrogated by general provision in clause 6.

Clause 11 − Protection of Crown employeesTop

8.7There are two options for clause 11 of the Bill regarding the protection of Crown employees from civil proceedings. The first provides an immunity for Crown employees (option (a)); the second an indemnity (option (b)). These options reflect the discussion in Chapter 6. Both alternatives contain an option to include ministers along with other Crown employees as qualifying for the immunity or indemnity.

Option (a): Immunity of Crown employees

11 Immunity for [Ministers and] certain Crown employees
(1) [Ministers and] non-State Sector Act employees are immune from liability in civil proceedings for good-faith actions or omissions in pursuance or intended pursuance of their duties, functions, or powers.
(2) In subsection (1), non-State Sector Act employees means Crown employees who are members of departments that are not specified in Schedule 1 of the State Sector Act 1988 (namely, the New Zealand Defence Force, the New Zealand Police, and the New Zealand Security Intelligence Service).
(3) See also section 86 of the State Sector Act 1988.

Commentary

This option reinforces and adds to the immunity currently in section 86 of the State Sector Act 1988. The immunity in section 86 would continue to apply to Crown employees as it does now. There is a cross-reference in sub-clause (3) to section 86 to direct the reader and provide greater clarity. This clause in the Bill would extend the immunity to non-State Sector Act employees, as defined in sub-clause (2), so that all parties coming within the definition of “Crown employee” under the Bill would be covered by the immunity. The departments referred to in sub-clause (2) are aligned with the departments as defined in clause 4.

This immunity would protect from liability Crown employees who have acted (or omitted to act) in good faith in the performance of their duties, by preventing legal proceedings from being taken against those employees. This means that a person whose acts are protected by this immunity cannot be sued or made financially liable for harm resulting from their actions.

The immunity and indemnity options are the same in scope in that they both cover only actions and omissions carried out in good faith in performance (or intended performance) of duties. It is not intended that either option would protect employees acting other than in good faith or acting outside the scope of their employment.

Option (b): Indemnity of Crown employees

11 Indemnity for [Ministers and] Crown employees
(1) The Crown must indemnify [Ministers and] Crown employees for costs and damages in civil proceedings relating to good-faith actions or omissions in pursuance or intended pursuance of their duties, functions, or powers.
(2) The indemnity must be paid by the department or departments that are involved with the subject matter of the civil proceedings.
(3) The Attorney-General must, as soon as practicable after the end of each financial year,—
(a) prepare a statement itemising all indemnities paid under this section in that financial year; and
(b) ensure that the statement is audited by the Auditor-General; and
(c) present the statement to Parliament.
(4) The statement must disclose personal information only in accordance with the Privacy Act 1993 and must not disclose information that is subject to an obligation of confidentiality [or public interest immunity].
12 Consequential amendment to State Sector Act 1988
(1) This section amends the State Sector Act 1988.
(2) Repeal section 86.

Commentary

As discussed in Chapter 6, the indemnity proposed in option (b) is a mandatory indemnity for Crown employees for good faith actions in pursuance of their duties. It would be possible to bring legal proceedings against an individual Crown employee, but the Crown would be required to pay legal costs and any damages resulting from the proceedings, for actions covered by this clause. This type of indemnity would provide greater certainty of protection compared with the general position in relation to indemnities at present, which require the approval of the Minister of Finance.

An important feature of this indemnity clause is that it mandates that the indemnity must be paid by the individual department involved with the proceedings, instead of being met out of the consolidated fund. This furthers the aim of increasing departments’ accountability.156
A further key requirement of this clause is that the Attorney-General prepare an annual statement to be presented to Parliament, itemising all indemnities paid in that year. This would provide information about settlements by departments, to increase accountability and transparency and make this information more accessible to the public.157

Under the indemnity option, section 86 of the State Sector Act would be repealed, because this indemnity would provide the relevant protection for all Crown employees.

Clauses 13 and 14 − Application to judicial actsTop

13 Crown immune from tortious liability in relation to judicial process
The Crown is immune from liability in tort for a person’s actions or omissions in the discharge or purported discharge of the person’s responsibilities in connection with the execution of judicial process.
14 Amendment to Constitution Act 1986
(1) This section amends the Constitution Act 1986.
(2) Before section 23, insert:
“23AA Crown immune from tortious liability in relation to judicial responsibilities
The Crown is immune from liability in tort for a person’s actions or omissions in the discharge or purported discharge of the person’s responsibilities of a judicial nature.”

Commentary

The current Act provides in section 6(5), on its face, a wide immunity for the Crown based on torts committed by those in the judicial process. The immunity provided by section 6(5) is, however, not complete. Section 6(5) does not grant an immunity to individual judges or officers, and their immunity relies on them being able to establish immunity at common law or through statute. The Law Commission’s recommendation in the 1997 report to give District Court judges the same immunity as High Court judges was adopted.158 The immunity of other judicial officers, such as registrars, remains subject to case law.
The draft clause essentially preserves this current law, as one of the principles behind this review is not to alter the underlying Crown liability regime. The draft provision would prevent tort actions in relation to judicial actions or omissions as now. However, we think that whether or not actions might be brought against the government for breaches of NZBORA by judges should be left to the courts. In 2011, the Supreme Court held by majority in Chapman that the Crown could not be liable to provide compensation under NZBORA for breaches of the act by judges.159 In the event that this decision was ever overturned and such NZBORA actions allowed, the draft Bill would clearly recognise such proceedings as civil proceedings.

This immunity, in so far as it applies to judges, sits strangely in the Crown Proceedings Act. Courts are expressly excluded from the definition of “Crown”, and judges are expressly excluded from the definition of “Crown employees”. It is a provision that really emphasises the separation of the executive and those exercising judicial authority. We have, therefore, suggested in the Bill that the Crown immunity, in so far it is applies to those who exercise responsibilities of a judicial nature, be in the Constitution Act 1986. The category of those who act in the execution of a judicial process, which is a wider category than those who exercise responsibilities of a judicial nature (primarily judges), includes those who are covered by the Crown Civil Proceedings Bill (for example, police officers or bailiffs) and the immunity should properly be in the proposed new statute.

155The New South Wales Crown Proceedings Act 1988 provides in s 5(3) that “Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject.” The British Columbian Crown Proceedings Act RSBC 1996 provides in s 2(c) that subject to that Act “the government is subject to all the liabilities to which it would be liable if it were a person”.
156See ch 6.
157See ch 6 for further discussion of the proposed procedure.
158See District Courts Act 1947, s 119. See also Law Commission Crown Liability and Judicial Immunity: A response to Baigent’s Case and Harvey v Derrick (NZLC R37, 1997).
159Attorney-General v Chapman, above n 149. The majority (McGrath and William Young JJ, and Sir Thomas Gault) was concerned about the effect that making the Crown responsible for actions of the judiciary might have on judicial independence. The minority (Elias CJ and Anderson J) emphasises that the accountability of the New Zealand state for breaches of NZBORA could not be limited simply because the alleged breach concerned a judicial action. It is possible to argue that the decision leaves New Zealand at risk of not providing sufficient remedy for breaches of NZBORA.