Contents

Chapter 4
Draft Crown Civil Proceedings Bill and commentary

Part 1 – Substantive matters

Clause 7 – The Crown may sue and be sued in civil proceedings

7 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

Clause 7 enacts the principle of equality that is at the heart of the Bill and ensures that the Crown can sue and be sued in civil proceedings as others can. This approach creates less complexity than the “laundry list” approach found in section 3 of the Crown Proceedings Act, which defines in detail what claims may be brought against the Crown.

See [3.4]–[3.51].

Clause 8 – Tort liability of the CrownTop

8 Tort liability of the Crown

A court may find the Crown itself liable in tort in respect of the actions or omissions of Crown employees despite any immunity of those employees.

Commentary

Clause 8 makes it clear that the courts may find the Crown directly liable in tort. This is a logical effect of clause 7, but as it represents a change to the status quo (the Crown may for the most part only be found vicariously liable in tort), we have included a separate clause to avoid any doubt as to this intended effect.

Clause 8 also confirms that the existence of an immunity granted to a Crown employee will not affect the ability of the courts to find the Crown liable.

See [3.4]–[3.51].

Clause 9 – The Crown may take advantage of general statutory provisionsTop

9 The Crown may take advantage of general statutory provisions

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

Clause 9 confirms that the Crown may rely on any statutory provision of general application even if it is not specifically named in that provision. Enabling the Crown to rely on the same statutory defences as any other person (providing the necessary elements of the defence are satisfied) is a necessary feature of ensuring that civil proceedings involving the Crown are conducted in as similar a manner as possible to civil proceedings between individuals.

Clause 10 – Remedies against the CrownTop

10 Remedies against the Crown

(1) Except as provided in this section or section 11, a court may grant any remedy in civil proceedings against the Crown.
(2) If a court considers that the public interest so requires, the court must make a declaration 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 recovery of land:
(e) the deliverance of property.
(3) If a declaration has been made under subsection (2), a court must not make an order against a Minister or a Crown employee if the effect of the order would be to give a remedy that could not be obtained from the Crown.

Commentary

Clause 10 replaces section 17 of the Crown Proceedings Act. It establishes as the new default position that a court can grant the same remedies against the Crown as it can grant against an ordinary person. Unlike section 17, clause 10 does not place any restriction on the kind of orders that can be made against the Crown. However, sub-clause (2) does recognise that, in some cases, the public interest may require the court not to make a binding order but instead make a declaratory order as to any party’s rights. Sub-clause (3) prohibits the court from making an order against a minister or Crown employee if making such an order would effectively result in a remedy that could not be obtained from the Crown (i.e. because the court had already decided that the public interest prevented an order being made against the Crown).

See [3.97]–[3.120].

Clause 11 – Admiralty proceedings against the CrownTop

11 Admiralty proceedings against the Crown

(1) This section applies to the following property belonging to the Crown:
(a) ships:
(b) aircraft:
(c) cargo:
(d) freight:
(e) other property connected with a ship, an aircraft, cargo, or freight.
(2) Despite sections 7 and 10 (1), this Act does not—
(a) authorise proceedings in rem against the Crown; or
(b) authorise the arrest, detention, or sale of property to which this section applies; or
(c) give any lien on property to which this section applies.
(3) If, at the time of commencing proceedings that seeks the remedies described in subsection (2), a plaintiff reasonably believed that the relevant property was not property to which this section applies, but it was, the court may order that the proceedings continue on terms that the court thinks just.

Commentary

Clause 11 retains the exclusion currently in section 28 of the Crown Proceedings Act against bringing in rem proceedings against the Crown. Clause 11 also ensures that specified Crown property, the majority of which would be used by the Defence Force, cannot be arrested or made subject to any of the consequences of in rem proceedings.

See [3.120].

Clause 12 – Contribution and indemnityTop

12 Contribution and indemnity

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

Commentary

Clause 12 replicates section 8(1) of the Crown Proceedings Act. It is included out of caution, as almost certainly, the common law position that contribution and indemnity could not be sought against the Crown would itself be abrogated by the general provision in clause 7.

Clause 13 – Immunity for Crown employeesTop

13 Immunity for Crown employees

All Crown 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 (whether or not they are Crown employees to whom section 86 of the State Sector Act 1988 applies).

Commentary

Clause 13 continues to provide immunity from civil proceedings for public servants. The clause extends immunity to all Crown employees covered by the Bill where they have acted in good faith in the performance of their duties. The immunity will apply regardless of whether or not the Crown employee is also covered by the immunity in section 86 of the State Sector Act.

Since the new clause covers all Crown employees who are currently immune under section 86, that section of the State Sector Act could be repealed at some stage.

See [3.52]–[3.88].

Clause 14 – Indemnity for MinistersTop

14 Indemnity for Ministers

(1) The Crown must indemnify a Minister for the Minister’s costs and any money the Minister is liable to pay in relation to civil proceedings arising from the Minister’s good-faith actions or omissions in pursuance or intended pursuance of the Minister’s duties, functions, or powers.
(2) The indemnity must be paid by the department that, with the authority of the Prime Minister, is responsible for the administration of government in relation to the subject matter of the civil proceedings.

Commentary

Clause 14 creates a statutory requirement for the Crown to indemnify ministers for costs and damages incurred by the minister in civil proceedings that arise in the performance of their ministerial duties. The indemnity only applies to good-faith actions or omissions. Indemnities must be paid from the funds allocated to the department that was involved with the subject matter of the proceedings that gave rise to the indemnity.

See [3.89]–[3.96].

Clause 15 – Existing immunity provisionsTop

15 Existing immunity provisions

An existing immunity provision listed in Schedule 2 immunises the Crown from liability in civil proceedings in respect of the actions or omissions of a Crown employee in the same way as it would immunise the employee.

Commentary

Clause 15 ensures that the existing employee immunities listed in Schedule 2 will continue to provide immunity to the Crown. Clause 15 is necessary to maintain the status quo in respect of Crown immunity because, with the change to direct liability implemented by clause 7, existing immunity provisions that immunise various Crown officers and employees will no longer afford the Crown vicarious immunity in tort. In the future, legislation will need to address the question of whether or not immunity should be granted to the Crown.

See [3.43]–[3.47].

Clauses 16 and 17 – Crown immune from tortious liability in relation to judicial process and responsibilitiesTop

16 The Crown immune from liability in tort 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.

17 Amendment to Constitution Act 1986

(1) This section amends the Constitution Act 1986.
(2) Before section 23, insert:
23AA The Crown immune from liability in tort 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

Clauses 16 and 17 preserve the essential characteristics of the current immunity in section 6(5) of the Crown Proceedings Act, namely that the Crown should be immune for liability in tort for acts or omissions arising from the discharging of responsibilities of a judicial nature or responsibilities in connection with the execution of the judicial process.

Clause 16 applies to any person discharging responsibilities in connection with the execution of the judicial process. It covers Crown employees who play a role in the judicial process, for example, Police officers and bailiffs. Clause 17 applies to a person exercising responsibilities of a judicial nature. It applies primarily to judges and other judicial officers.

Having two separate clauses emphasises the separation of powers between those exercising executive powers in connection with the execution of the judicial process and those exercising judicial responsibilities. Further emphasising the separation of powers, clause 17 (the immunity relating to judicial powers) will be a provision in the Constitution Act 1986.

Clauses 16 and 17 only grant immunity in respect of tort claims. Claims under the New Zealand Bill of Rights Act are not affected.