Contents

Chapter 4
Draft Crown Civil Proceedings Bill and commentary

Schedule 4 – Consequential amendments to other enactments

Bail Act 2000 (2000 No 38)

After section 39, insert:
39A Court must order bail money to be paid to the Crown unless justice etc requires money to be returned to surety
(1) If a defendant’s failure to comply with a condition of bail has been entered in the court record under section 39(3), any money paid by a surety under a bail bond is forfeited.
(2) The court must order money forfeited under a bail bond to be paid to the Crown, unless the court considers that equity and good conscience and the real merits and justice of the case requires the money to be returned to the surety.

Commentary

This clause re-enacts sections 21 and 23 of the Crown Proceedings Act and provides the procedure by which recognisances are recovered by the Crown once forfeited. We recommend that the provision be included in the Bail Act 2000, as we understand that they are now only used in respect of bail bonds.

A recognisance is a financial undertaking by a person to perform some act or to observe some condition, such as to comply with the terms of bail or to appear at court when summonsed. The cash bond is security for the recognisance. The procedure was recently considered in detail in the judgment of Brewer J in R v Wu HC Auckland, CRI-2006-019-8458, 1 December 2011.

Civil Aviation Act 1990 (1990 No 98)Top

After section 97(8), insert:
(9) Despite section 3, in an action against the Crown for any damage, loss, or injury sustained by or through or in connection with the use of any service aircraft, this section applies as if the provisions of this Act and any rules made under this Act have been complied with.
(10) In subsection (9), service aircraft means an aircraft that is being used exclusively for the purposes of the Armed Forces of New Zealand.

Commentary

When read together with the provisions of the Civil Aviation Act, section 9(3) of the Crown Proceedings Act effectively gave the Crown automatic supposed immunity to claims of nuisance or trespass relating to the use of service aircraft. It also provided that the Crown would be subject to strict liability in relation to material damage or loss relating to the use of service aircraft. New sub-sections 98(9) and (10) are to be added to the Civil Aviation Act 1990 and will replace section 9(3) of the Crown Proceedings Act.

Criminal Proceeds (Recovery) Act 2009 (2009 No 8)Top

Replace section 157(4) with:
(4) Nothing in this section limits or affects any provision of the Crown Civil Proceedings Act 2015 or the Crimes Act 1961 relating to the liability of the Crown on matters of justification and excuse.

Commentary

The amendment to the Criminal Proceeds (Recovery) Act 2009 replaces the reference to the Crown Proceedings Act with the title of the new Bill.

Designs Act 1953 (1953 No 65)Top

Replace section 11(2) with:
(2) Subject to the rest of this Act, the registration of a design has the same effect against the Crown as it has against any other person.
(3) If a Crown employee infringes copyright in a design, and the infringement is committed with the authority of the Crown, then, subject to the Crown Civil Proceedings Act 2015, civil proceedings in respect of the infringement may be brought against the Crown.
(4) Nothing in subsection (3) or in the Crown Civil Proceedings Act 2015 affects the rights of a government department under sections 16 to 19.
(5) Except as provided in this section, no proceedings may be brought against the Crown under the Crown Civil Proceedings Act 2015 in respect of the infringement of any copyright in a design.
(6) In subsection (3), Crown employee has the meaning given in section 4 of the Crown Civil Proceedings Act 2015.

Patents Act 2013 (2013 No 68)Top

Replace section 19(3) and (4) with:
(3) Subject to the rest of this Act, a patent has the same effect against the Crown as it has against any other person.
(4) If a Crown employee infringes a patent, and the infringement is committed with the authority of the Crown, then, subject to the Crown Civil Proceedings Act 2015, civil proceedings in respect of the infringement may be brought against the Crown.
(4A) Nothing in subsection (4) or in the Crown Civil Proceedings Act 2015 affects the rights of a government department under subpart 6 of Part 4.
(4B) Except as provided in this section, no proceedings may be brought against the Crown under the Crown Civil Proceedings Act 2015 in respect of the infringement of a patent.
(4C) In subsection (4), Crown employee has the meaning given in section 4 of the Crown Civil Proceedings Act 2015.

Trade Marks Act 2002 (2002 No 49)Top

After section 11, insert:
11A Rights against the Crown
(1) If a Crown employee infringes a registered trade mark, and the infringement is committed with the authority of the Crown, then, subject to the Crown Civil Proceedings Act 2015, civil proceedings in respect of the infringement may be brought against the Crown.
(2) Except as provided in this section, no proceedings may be brought against the Crown under the Crown Civil Proceedings Act 2015 in respect of the infringement of a registered trade mark.

Commentary

The amendments to the Designs Act 1953, Patents Act 2013 and Trade Marks Act 2002 carry forward the effect of section 7 of the Crown Proceedings Act and provide that, where a Crown employee infringes copyright in a design, a patent or a registered trade mark with the authority of the Crown, proceedings may be brought against the Crown but not the Crown employee.

District Courts Act 1947 (1947 No 16)Top

After section 109(5), insert:
(6) This section applies to civil proceedings by the Crown.

Judicature Act 1908 (1908 No 89)Top

After section 55(4), insert:
(5) This section applies to civil proceedings by the Crown.

Commentary

The amendments to the District Courts Act 1947 and the Judicature Act 1908 provide that the provisions in those Acts relating to the arrest or imprisonment of defendants at risk of fleeing the jurisdiction will apply to civil proceedings commenced by the Crown.