Contents

Chapter 8
Crown Civil Proceedings Bill and commentary

Matters not to be covered in the new Act

Other Crowns

8.11Section 35(2)(c) of the current Act provides that nothing in the Act should “affect any proceedings by the Crown otherwise than in right of the Sovereign’s Government in New Zealand”.

8.12This provision, in our view, is no longer necessary. It was added to the United Kingdom Act to prevent possible actions in relation to colonial activities that had been conducted by colonial governments. In this it has only been partially effective.165 Actions by and against the Crown in right of other jurisdictions ought to be governed by the same principles that relate to suits against other foreign counties.

Section 9 of the Crown Proceedings ActTop

8.13Currently section 9 of the Act addresses two military-related matters. Subsections 9(1), (2) and (2A) provide a bar against proceedings for compensation or damages in relation to a member of the armed forces who has received assistance under the War Pensions Act 1954 due to a service-related disablement or death. Subsection 9(3) is a limited provision that deals with damage caused by military aircraft.

Bar against proceedings for compensation or damages

8.14The recently introduced Veterans Support Bill,166 which would replace the War Pensions Act, has replicated section 9(1), (2) and (2A) in clause 265, and will repeal the old Crown Proceedings Act provisions. Therefore, we have not included these provisions, despite their importance, in our draft Crown Civil Proceedings Bill.

Damage caused by military aircraft

8.15Section 9(3) of the Crown Proceedings Act applies section 97 of the Civil Aviation Act 1990 to any claim against the Crown relating to damage, loss or injury sustained through the use of a service aircraft. Section 97 of the Civil Aviation Act has two main effects: first, it creates immunity to claims of nuisance or trespass relating to the use of aircraft if certain conditions are met; and second it creates strict liability for claims of material damage or loss relating to the use of aircraft.

8.16The terms of section 9(3) of the Crown Proceedings Act mean that section 97 of the Civil Aviation Act will apply as if the Civil Aviation Act applies to the New Zealand Defence Force. Section 3 of the Civil Aviation Act means that that Act does not apply to the New Zealand Defence Force unless it is expressly stated in legislation that it does apply. Section 9(3) also makes it clear that all conditions (the applicable provisions and rules under the Civil Aviation Act) are deemed to have been complied with.

8.17The effect of the interaction of these two sections is that the Crown effectively has automatic immunity to claims of nuisance or trespass relating to the use of service aircraft and the Crown is subject to strict liability in relation to material damage or loss relating to the use of service aircraft.

8.18The placement of this provision in the Crown Proceedings Act is somewhat out of place. The only real connection it has with the rest of section 9 is the link to the armed forces, and this is to be removed once the Veterans’ Support Bill comes into force. We consider that this provision might be better placed in the Civil Aviation Act.

165See Mutua v The Foreign and Commonwealth Office [2012] EWHC 2678 (QB).
166Veterans’ Support Bill 2013 (158-2).