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Litigating Against the Crown

Published: 27-07-2002 Author(s): Terence Arnold KC, Dr Andrew Butler, Jack Hodder, Janet McLean, Mary Scholtens KC Pages: 106
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Author(s): Terence Arnold KC, Dr Andrew Butler, Jack Hodder, Janet McLean, Mary Scholtens KC
Published: 27 July, 2002
Pages: 106
   

In this seminar we consider aspects of litigating against the Crown. In this introductory paper, three matters will be touched on:
  • the definition of “the Crown” in the 21st century;
  • the current trends in claims against the Crown, particularly the expansion of Crown liability in the area of human rights; and
  • the special features of litigating against the Crown, with particular emphasis on the Crown as a “model litigant” and the Crown’s approach to settlement.
Before turning to these points, however, I should make a brief comment by way of background.

Under the common law in the early part of the 19th Century there were two particularly important limitations on the Crown’s liability:
  • The Queen could not be sued in her Courts without her consent. For this reason, those wishing to claim against the Crown had to utilise the petition of right procedure. Such petitions were available only in cases where there was a contractual claim or a claim in the nature of restitution.
  • Second, the maxim “the Queen could do no wrong” was reflected in the fact that no action in tort lay against the Crown, for either direct or vicarious liability, and the Crown could not be prosecuted for any offence.
Even after legislation was enacted to facilitate the bringing of civil claims against the Crown, other “privileges” or immunities remained available to it. For example:
  • Mandatory orders, such as injunctions, could not be made against the Crown (see now the proviso to s 17(1), and s 17(2), of the Crown Proceedings Act 1950).
  • The substantive law recognised the special position of the Crown. For example, the authorities have accepted that there are limits on the ability of a Minister or official to fetter a statutory discretion by contract, which has suggested the possibility of a defence of “executive necessity” (see, for example, the discussion in Ansett Transport Industries (Operations) Pty Ltd v The CommonwealthThe Power Co Ltd v Gore District CouncilChoudry v Attorney-General [1999] 3 NZLR 399 (CA)). (1977) 139 CLR 54; cf [1997] 1 NZLR 537 (CA)). The Crown had other protections, for example, the ability to claim public interest immunity on national security grounds (see
On the other hand, the Crown faced unique liabilities, through the development of judicial review and of claims such as misfeasance in public office, for example (see Garrett v Attorney-General [1997] 2 NZLR 332 (CA) and Rawlinson v Rice

In general, the trend over the last 50-70 years has been to reduce the scope of the Crown’s substantive and procedural privileges or immunities, and to make the Crown subject to the imposition of liability, and to the application of statutes, in much the same way as any other entity. Three principles operate here:
[1998] 1 NZLR 454 (CA) for recent discussion of misfeasance in public office claims, the first in respect of the actions of the Police and the second in respect of the actions of a District Court Judge).
  • first, the rule of law requires that the Crown (the Executive) be subject to law;
  • second, the principle of equality requires that the Crown be subject to the same law as everyone else; and
  • third, the Executive must be free to govern. This means that the Crown may need special rights or immunities, although it may also mean that it accepts greater obligations (and therefore, potentially at least, greater liabilities) than ordinary persons.
As will be obvious, the first two principles may conflict with the third, and there may be disagreement as to the appropriate balance. This is reflected in the discussion concerning the approach to be taken to the application of statutes to the Crown – see Law Commission, A New Interpretation Act: To Avoid “Proxility and Tautology” (Report 17, 1990) Ch 4 “The Crown and Statutes”; Law Commission, To Bind Their Kings in Chains: An Advisory Report to the Ministry of Justice (SP 6, 2000); Ministry of Justice “Report Required by Section 28 of the Interpretation Act 1999” (June 2001).

It is against this background that the topics in this seminar must be considered.




 

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