18 Same procedural rules apply to the Crown as to any other person
Clause 18 confirms that the Crown will be subject to the same rules of civil procedure as an ordinary person unless Part 3 of the new Act provides otherwise. The rules of civil procedure that apply in any particular case are provided for in legislation governing that particular type of proceeding. For example, the rules of procedure for proceedings in the High Court are contained in the High Court Rules, while those governing proceedings in specialist tribunals are contained in the rules of procedure for those judicial bodies. Such rules are to apply to the Crown as well as other parties to litigation.
19 Attorney-General correct party in civil proceedings against and by the Crown
In civil proceedings against the Crown, the Attorney-General should be named as the defendant and be served with proceedings at the Crown Law Office unless another statute provides otherwise. This does not preclude other defendants being named as well. Our view is that it is simpler to make the Attorney-General the nominal defendant in all cases.
Civil proceedings commenced on behalf of the Crown must be in the name of the Attorney-General as the plaintiff or applicant unless another statute provides for another person to be named as the plaintiff or applicant.
20 Rules about the Crown’s participation in civil proceedings, etc
This clause carries over the existing provision for rules set out in section 30(2) of the Crown Proceedings Act, with modernised and simplified language. It continues the power to create court rules that restrict the operation of set-off and counterclaim in civil proceedings involving the Crown.
It is unnecessary to specifically include sub-sections 30(1)(a)–(d) of the Crown Proceedings Act because sub-clause 20(1)(a) of the Bill, which provides for the Crown’s participation in civil proceedings, is sufficiently broad to encompass these procedural matters. Section 30(1)(e) of the Act, covering set-off or counterclaim in proceedings involving taxes, duties or penalties, is divided in clause 20 into sub-clauses (b) and (c) to improve clarity. Sub-section 30(1)(f), which restricts set-off and counterclaim where the subject matter is unrelated, is reflected in sub-clause (d) of the new provision. Sub-sections (g) and (h), covering the Crown’s entitlement to set-off or counterclaim, are simplified in new sub-clause (e).
The intention is that rules made under section 30(2) of the Crown Proceedings Act would be carried over and preserved under the new legislation.
21 Intervention by the Crown
Clause 21 gives a court the discretion to permit the Crown to intervene in any civil proceeding that affects the public interest. The procedure by which the Crown is joined in any case would be governed by the procedural rules that apply to those proceedings.
22 Discovery and interrogatories by the Crown
Clause 22 carries forward the statutory requirement in section 27(1) of the Crown Proceedings Act for the Crown to discover and produce documents and answer interrogatories in the same way as any other person.
Unlike section 27(3), clause 22 does not grant the Prime Minister or Attorney-General the power to issue a certificate preventing the disclosure of information if they are of the opinion that disclosure would not be in the public interest. Instead, the Crown’s disclosure obligation may only be modified if an enactment provides authority to do so. An example is an order of the court under section 70 of the Evidence Act 2006. In Part 2 of this Report, we recommend a new approach to the way that information that would have previously been subject to an application under section 27(3) should be managed in court proceedings.
23 The Crown not required to give security for costs
Clause 23 re-enacts the prohibition in section 18 of the Crown Proceedings Act against ordering the Crown to provide security for costs.
This provision is designed solely to prevent the expense of any application being made against the Crown. The Crown will not satisfy the current preconditions (residency or impecuniosity) for an order for security for costs, and there is no realistic expectation such an order would be needed given that the Crown is unlikely not to be in a position that it will not pay any costs awarded against it.
24 Judgment against the Crown
Section 24 of the Crown Proceedings Act provides a complicated regime for the satisfaction of judgments against the Crown. The process requires the court to issue a certificate setting out the amount payable, which is provided to the Governor-General. The Governor-General may then pay the certified amount from the consolidated fund pursuant to a permanent legislative authority. By contrast, claims that are settled prior to a judgment are paid by the relevant department from their annual appropriation. However, we understand that the procedure for paying judgments is not used and that payments are sourced from the consolidated fund and accounted for by departments in a variety of alternative ways.
Clause 24 of our Bill provides a simplified process where judgments must be satisfied by the department connected with the proceedings. The payment of judgments is mandatory, and the Governor-General is not involved. Further, no money is paid out of the consolidated fund. This procedure is more in line with modern government accounting processes and ensures that financial accountability rests with the department regardless of whether or not the claim is settled prior to judgment.
Legal liability remains with the Crown as the defendant. Clause 24 does not therefore include a provision for the court to apportion the damages between multiple departments if one or more departments are involved. In these circumstances, the decision as to how to apportion the damages should be made by the Crown, almost certainly through negotiation.
In our Issues Paper, we acknowledged the constitutional principle that the Crown should not be forced to spend public money without parliamentary authority. We have concluded that our new procedure together with the additional reporting requirements in clause 25 will provide a heightened degree of transparency and parliamentary accountability for the expenditure of public funds to meet court judgments.
25 Payments by the Crown in relation to civil proceedings
Clause 25 provides increased transparency with respect to payments by the Crown relating to civil proceedings. While the payments identified in sub-clauses (a)–(d) would be included in a department’s annual financial statements, it is difficult for people who are unfamiliar with government finance to identify which funds represent settlements, judgments and other payments arising from civil proceedings.
26 Crown Proceedings Act 1950 repealed
27 Amendments consequential on repeal of section 5(2) of Crown Proceedings Act 1950
Section 5(2) of the Crown Proceedings Act provides that the enactments listed in Schedule 1 of the Crown Proceedings Act would bind the Crown. As section 27 of the Interpretation Act provides that legislation will not bind the Crown unless it expressly states that the Crown is bound, clause 27 and the consequential amendments in Schedule 3 insert into each Act a provision that states that it binds the Crown.
28 Consequential amendments to other enactments
As a consequence of the repeal of the Crown Proceedings Act and the enactment of this Bill in its place, a number of references in other legislation need to be updated and amended to reflect this change.