Contents

Chapter 4
Draft Crown Civil Proceedings Bill and commentary

Schedule 1 – Transitional, savings and related provisions

1 Crown’s powers and authorities otherwise unaffected

1 The Crown’s powers and authorities otherwise unlimited by this Act

Except as expressly provided in this Act, this Act does not limit any power or authority vested in the Crown (or in any person on its behalf).

Commentary

This clause recognises that, unlike ordinary people, the Crown holds prerogatives and other powers arising from its unique obligations, powers and functions. It ensures that these powers or authorities are not limited by the provisions of the Bill unless expressly provided.

2 Immunity from tort liability property vested by independent rule of lawTop

2 The Crown immune from liability in tort in relation to certain Crown property

(1) The Crown is immune from liability in tort in relation to property vested in the Crown under a rule of law that operates independently of the acts or the intentions of the Crown.
(2) This section does not apply if the Crown has taken possession or control of the property or has occupied it.

Commentary

This clause grants the Crown immunity from tort liability arising from property that is vested in the Crown by an independent rule of law that does not require the Crown to take any legal action to claim the land. Such instances might involve land bona vacantia (ownerless property that passes to the Crown) and other property that vests in the Crown after being disclaimed. The immunity ceases to apply, however, once the Crown takes possession or control of the land or has occupied it.

3 Proceedings by or against the SovereignTop

3 This Act does not apply to or authorise proceedings by or against the Sovereign

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.

4 Transitional arrangementsTop

4 Transitional arrangements

(1) This Act applies to proceedings commenced on or after the date on which this Act comes into force.
(2) The Crown Proceedings Act 1950 applies to proceedings commenced before the date on which this Act comes into force.

Commentary

The provisions of this Act should only apply to proceedings that are commenced after enactment of the new Crown Civil Proceedings Act. Proceedings commenced prior to enactment should continue to be determined in accordance with the law that applied at the time the proceedings were commenced.