Contents

Chapter 8
Crown Civil Proceedings Bill and commentary

Crown Civil Proceedings Bill Part 3 − Procedure and execution

Clause 15 − Same procedure

15 Same procedural rules apply to the Crown as to any other person
Subject to this Part, the same rules of civil procedure apply to the Crown as apply to any other person.

Clause 16 – Security for costsTop

16 The Crown is not required to give security for costs
The Crown is not required to give security for the costs of any other party in civil proceedings.

Commentary

This clause carries over the prohibition in section 18. It is not conceivable that the Crown would not be able to satisfy a cost award, and an application for security would have little utility.

Clause 17 − Ability to create rulesTop

17 Rules about the Crown’s participation in civil proceedings, etc
(1) The Governor-General may, by Order in Council, make rules for
(a) providing for the Crown’s participation in civil proceedings:
(b) in civil proceedings by the Crown for the recovery of taxes, duties, or penalties, providing that the defendant is not entitled to a set-off or counterclaim:
(c) in other civil proceedings by the Crown, providing that the defendant is not entitled to a set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties, or penalties:
(d) in proceedings by or against the Crown, providing that the defendant is not entitled, without the court’s leave, to a set-off or counterclaim if the subject matter of the set-off or counterclaim does not relate to the subject matter of the proceedings:
(e) providing that the Crown is not entitled to a set-off or counterclaim without the court’s leave.
(2) A provision in another Act that empowers rules about civil proceedings also empowers rules for the purposes listed in subsection (1).

Commentary

This clause continues the power to create court rules that restrict the operation of set-off and counterclaim. It carries over the existing provision for rules set out in section 30(2) of the Act, with modernised and simplified language.

Existing paragraphs (a) to (d) of section 30(1) were considered unnecessary to include specifically, as new clause 17(1)(a), providing for the Crown’s participation in civil proceedings, is broad enough to encompass these procedural matters. Existing section 30(1)(e), covering set-off or counterclaim in proceedings involving taxes, duties or penalties, has been divided into paragraphs (b) and (c) in the new clause, to aid clarity. Existing section 30(1)(f), which restricts set-off and counterclaim where the subject matter is unrelated, is reflected in new paragraph (d). Existing paragraphs (g) and (h), covering the Crown’s entitlement to set-off or counterclaim, have been simplified into new paragraph (e).

The rules provided for under section 30(2) of the Act are currently manifested in rule 5.61 of the High Court Rules. There are two general principles to the rule: first, that set-offs and counterclaims are not available in respect of taxes (the tax rule);158 and second, that set-offs and counterclaims are not generally available unless they properly concern the subject matter of the proceedings (the subject matter rule).159 The intention is that these two rules would be preserved under new legislation.

Clause 18 − Party names in the proceedingsTop

18 Attorney-General correct party in civil proceedings against and by the Crown
(1) Civil proceedings against the Crown—
(a) must name the Attorney-General as the defendant on behalf of the Crown; and
(b) subject to any other enactment, must be served on the Attorney-General at the Crown Law Office.
(2) Subject to any other Act, civil proceedings by the Crown must be in the name of the Attorney-General as the plaintiff on behalf of the Crown.

Commentary

This provision removes the uncertainty currently created by section 14 of the Act, which provides that the defendant should be a government department if that department has sufficient personality to be sued. Section 14, which was taken directly from the 1947 United Kingdom Act, does not properly describe the New Zealand position where no department has sufficient personality to be sued.

In our view it is simpler to make the Attorney-General the nominal defendant and plaintiff in all actions for and against the Crown, at least where statutes do not provide for another person to fulfil that role, such as the Commissioner of Inland Revenue or the Comptroller of Customs. The provision would permit, but would not require, the addition of other defendants, for instance, a statutory office holder, if the defendant so wished.

Clause 19 − Attorney-General’s ability to interveneTop

19 Intervention by the Crown
The Attorney-General on behalf of the Crown may seek a court’s leave to intervene in any civil proceedings affecting the public interest.

Commentary

This provision is purely enabling. It leaves to the discretion of the court whether or not it is appropriate to allow the Crown to intervene.

Clause 20 − Crown’s obligation to give discoveryTop

8.8The Bill will include a provision on the Crown’s obligation to give discovery to replace section 27 of the Act. Provision in statute is necessary to enable discovery against the Crown.160 This is because at common law, the Crown could not be required to give discovery of documents at all when it was a party to a suit.161 The requirement of the Crown to give discovery as if it were a private party remains an important one; indeed, addressing this issue was one of the major reasons for the enactment of the original Crown Proceedings Act 1947 in the United Kingdom.

8.9However, because the significant issue of public interest immunity is still to be considered, as discussed in Chapter 7, we do not present a draft provision here. The Bill will continue to provide a statutory basis for enabling discovery against the Crown. The general principle from section 27 that the Crown is subject to the same discovery requirements as any other person will be retained. The new provision will be aimed at simplifying and clarifying the rules governing proceedings involving the Crown. It will make it clear that the ordinary rules of civil procedure are relevant and applicable to the Crown.

Clause 21 − Execution against the CrownTop

21 Execution against the Crown
(1) A judgment against the Crown must be satisfied by the department or departments that are most directly involved with the subject matter of the civil proceedings.
(2) A department must include a statement within its annual report under section 43 of the Public Finance Act 1989 for a particular financial year itemising any amounts paid by the department in that financial year for the purpose of—
(a) settling an existing or prospective civil proceeding against the Crown; and
(b) satisfying a judgment against the Crown.
(3) 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].

Commentary

The Act provides in section 24 for a separate regime for the satisfaction of judgments against the Crown. Rather than proceeding to execution in the usual way, the Act contemplates the issuing of a certificate, the presentation of which enables the Governor-General to pay the amount without a further appropriation.

While this is similar to the position in Victoria, other comparable jurisdictions, including the United Kingdom, the other Australian states and the Canadian provinces, make the satisfaction of judgment mandatory.162

There are three issues with this provision: whether satisfaction should be mandatory; whether it should involve the Governor-General; and whether the Act ought to contain a permanent legislative appropriation. The current procedure, which, in form, appears to make compliance with judgment optional, reflects both important constitutional history and the principle that the Crown should not be forced to pay public funds, or to part with its property, without the consent of Parliament.

Clause 22 − Personal liability of the SovereignTop

22 Savings
For the avoidance of doubt, nothing in this Act applies to or authorises proceedings by or against the Sovereign in the Sovereign’s private capacity.

Commentary

Section 35(1) of the Crown Proceedings Act states that the Act does not authorise actions against the Queen in her personal capacity. This privilege has not been extended to the Governor-General as her representative. The provision in the United Kingdom Act on which this provision is based was clearly a concession to the personal prerogatives of the monarch. While the rule of law might be said to require that the sovereign acting in her personal capacity ought to be subject to the same legal procedures as her subjects, it is unlikely that the privilege has much practical importance given the reality that the Sovereign is unlikely to incur legal obligations in New Zealand that are similar to those incurred by private citizens. The dividing line between what is done by the Queen in her official capacity and what is done in her personal capacity is not necessarily clear. It might be that properly considered certain prerogatives remain personal rather than official, but the reality is that their exercise is in no way equivalent to the actions of a private person.

Clause 23 – Transitional arrangementsTop

8.10The Bill will need to deal with transition from the Crown Proceedings Act to the new Act, but these provisions have yet to be drafted. The key matter for consideration will be whether proceedings on foot at the time that the new Act enters into force should be considered under the new Act or the old.

Clause 24 – Repeal of the Crown Proceedings ActTop

24 Crown Proceedings Act 1950 repealed
The Crown Proceedings Act 1950 (1950 No 54) is repealed.

Clauses 25 and 26 – Amendments to other enactmentsTop

25 Amendments consequential on repeal of section 5(2) of Crown Proceedings Act 1950
Amend the enactments specified in Schedule 1 as set out in that schedule.
26 Consequential amendments to other enactments
Amend the enactments specified in Schedule 2 as set out in that schedule
[Schedules not yet drafted]
158For example, the tax rule was applied in Commissioner of Inland Revenue v Wright [2013] NZHC 476 where the receivers of a company in liquidation sought compensation for compulsory takings under the Public Works Act 1981. The Court held that once a company falls to be liquidated the rules of set-off are governed by s 310 of the Companies Act 1993 (at [39]).
159For example, the subject matter rule was considered in J C Mitten Ltd (in liq) v Attorney-General [1961] NZLR 628 (SC) where the Court gave leave for set-off in relation to financial relationships with the Ministry of Works and the New Zealand Forest Service.
160Bird v Auckland District Land Registrar [1952] NZLR 462 (SC) at 466.
161Harry Street “Crown Proceedings Act, 1947” (1949) 11 Mod L Rev 129 at 140.
162See P Hogg and P J Monahan Liability of the Crown (3rd ed, Carswell, Scarborough, 2001) at [3.1].