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CROWN LAW LITIGATION – SERVICE OF CIVIL PROCEEDINGS
ON THE CROWN –
GUIDELINES
INTRODUCTION
1.
These guidelines outline how proceedings come to Crown Law, and the responsibilities of
counsel, reception at Crown Law, government departments, crown agencies, and crown
solicitors regarding service.
CIVIL PROCEEDINGS AGAINST THE CROWN
The Crown Proceedings Act 1950
2.
The Crown Proceedings Act 1950 (
CPA) altered the traditional rule that ‘the king can do no
wrong’ (
lex potest non peccare) and makes the Crown liable in the same way as a private citizen in
respect of most causes of action
(s 3(2)). Following the judgment of the Court of Appeal in
Baigent’s case,
1 it is clear that this includes liability in actions brought under the Bill of Rights Act
1990.
3.
Section 14 prescribes the way in which the Crown or an agency of the Crown may be made a
party to civil proceedings. It provides that proceedings may be instituted by or against:
3.1
the appropriate government department in its own name if the department may be
sued apart from this section; or
3.2
the appropriate officer of the Crown in the name in which he or she may be sued on
behalf of the Crown or of any government department if the officer may be sued on
behalf of the Crown or of any government department apart from this section; or
3.3
the Attorney-General if there is no such appropriate department or officer or if the
person instituting the proceedings has any reasonable doubt whether any and, if so,
which department or officer is appropriate; or
3.4
any 2 or more of them jointly.
4.
Departments of State and Crown agencies should therefore only be named if Parliament has
conferred the legal capacity to be sued. General y government departments do not have this
capacity, and the appropriate defendant wil be the Attorney-General.
2 Chief Executives and
other officers are in the same position: unless the Act confers a capacity to sue or be sued (or
unless one of the exceptions discussed below applies), they should general y not be named.
3
5.
Notwithstanding this, the wrong defendant is often named, sometimes leading to the
proceedings being served in the wrong place. Unless there is any actual prejudice, the service
should be accepted as valid as from the day the documents arrive at Crown Law.
6.
If the wrong party is named, we can apply to have them struck out but will consider the fairness
and cost effectiveness of doing so. The alternative approach is to alert the Court to the issue so
that judgment is not inadvertently entered in favour of or against a party who cannot be sued.
The point can be signal ed in the statement of defence with a footnote and referred to in the
1
[1994] 3 NZBR 66
2
A recent search indicated that no Department or Chief Executive had been given capacity to sue or be sued.
3
We note that the commentary in Westlaw, Civil Procedure - A to Z of New Zealand Law, at [13.5.3.2] states: “As a
general rule, government departments do not have legal personality, so proceedings should be brought by or against the
chief executive responsible for the department”
(link). On the basis of our understanding of s.14, we do not regard this
as correct and prefer the commentaries in LexisNexis
Laws of New Zealand at [14]
(link), and
Sim’s Court Practice (link).
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first case management memorandum, indicating that the Attorney-General wil consent to
being joined as a party so the claim can be put on a proper footing. We might take a different
stance if the claim has passed outside the limitation period.
7.
Under
s 16 of the CPA al civil proceedings that name the Attorney-General are to be served at
Crown Law. If a proceeding wrongly names an entity that cannot be sued in its own name, the
documents should also be directed to Crown Law. Client Relationship Managers should make
sure that their clients are aware of the need to redirect any such proceedings to Crown
Claims brought against individual public servants
8.
Plaintiffs may bring proceedings against individual public servants. Where possible, we
encourage claimants to name the role rather than the individual. In those cases where the
Crown might be liable, either directly or vicariously, for allegations made against individual
public servants we may invite the Court to join the Crown as defendant, in the name of the
Attorney-General.
9.
However,
s 104 of the Public Service Act 2020 (PSA) grants Chief Executives and public
service employees immunity from liability in civil proceedings for actions or omissions
undertaken in good faith.
Judicial Review Proceedings
10.
Most Judicial Review proceedings are excluded from the ambit of the CPA.
4 The question of
who must be named when judicial review proceedings are brought against the Crown is
governed by s 9(1) of the Judicial Review Proceedings Act 2016, which provides that the
‘following persons must be named as a respondent to an application’:
10.1
the person whose act or omission is the subject matter of the application; and
10.2
if the application relates to any decision made in proceedings, every party to those
proceedings.
11.
Although not covered by
s 16 of the Crown Proceedings Act, all judicial review proceedings
chal enging actions by or on behalf of the Crown must be brought to the attention of Crown
Law because they are core Crown legal work.
12.
The standing authority in
paragraph 4.35 of the Cabinet Manual that authorised Crown Law to
accept service applies to al judicial review proceedings that name the Attorney-General.
13.
Other clients should be encouraged to authorise Crown Law to accept service of judicial review
proceedings on their behalf because such matters are often urgent.
14.
Where judicial review proceedings arise from the decision of a District Court or tribunal, it is
possible that we may be served in two capacities (on behalf of the court or tribunal and on
behalf of any crown entity that was a party to the proceedings before that court or tribunal).
4
Section 2 (1) provides a definition of civil proceedings which excludes “habeas corpus, mandamus, prohibition, or
certiorari or proceedings by way of an application for review under th
e Judicial Review Procedure Act 2016 to the extent
that any relief sought in the application is in the nature of mandamus, prohibition, or certiorari”. It would appear to
fol ow that judicial review proceedings which do not seek any of the above remedies (for example, an application
advanced in order to obtain a declaration) wil not be excluded.
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15.
Al teams should bear in mind the need to ensure that the Law Officer TeamConstitutional and
Human Rights Team receives a copy of any proceedings that name a judge, court or tribunal or
clearly ought to have named them.
16.
In the relatively rare case where the Attorney-General seeks a judicial review of the decision of
a District Court Judge, service should be dealt with internal y by delivery of the proceedings to
the Law Officer Team.
Habeas Corpus applications
17.
Applications for habeas corpus lie outside the ambit of the CPA.
5 An application for habeas
corpus must name, as respondent, the person who is responsible for the applicant’s detention.
18.
Section 8 of the Habeas Corpus Act 2001 provides that respondent must be described by their
office and not named and at s 8(a) to (e) describes which officer holder must be named,
depending on the type of institution in which the plaintiff is being detained.
CLAIMS AGAINST CROWN ENTITIES
19.
Crown entities usual y do have the power to sue and be sued and they wil be appropriately
named as defendants. For example, a Rivers Board may be sued under s 15 of the Rivers
Boards Act 1908.
CLAIMS AGAINST MEMBERS OF THE JUDICIARY
20.
The CPA provides the Crown may be liable for the tortious actions of its servants, but
“servant” does not include Judge, District Court Judge, Justice of the Peace, Community
Magistrate or other judicial officer (s 2(1) CPA). In addition, nothing done or omitted during
the discharge of responsibilities of a judicial nature can form the basis of a proceeding against
the Crown (see s 6(5) CPA). Actions against individual Judges or Registrars cannot succeed due
to the common law principle of judicial immunity.
6 However, Justices of the Peace can have
proceedings brought against them for their actions and be named in certain circumstances.
7
CLAIMS AGAINST THE POLICE
21.
The New Zealand Police is an ‘an instrument of the Crown’ (s 7(1) of the Policing Act 2008).
Therefore, the CPA applies to the Police and s 14 of the CPA applies to determine the party
against whom proceedings may be brought. As there is no enactment that gives either the New
Zealand Police or the Commissioner of Police the power to sue or enable it to be sued, actions
should be brought in the name of the Attorney-General, as was confirmed in Hunter v AG.
8
5
See fn 3, above.
6
Discussed and affirmed in
Attorney-General v Chapman [2011] NZSC 110, paras. [161] to [202].
7
See Justice of the Peace Act 1957 and
Hunter v At orney-General [2017] NZHC 2767 at [23]-[24]).
8
[2017] NZHC 2767 at [8] and [29]. The point is not however always taken by counsel and examples of judgments issued
against the New Zealand Police or the Commissioner may be found. See in particular:
Stevenson v Of ice of Police
Commissioner [2015] NZHC 1408 and
Egan v Commissioner of Police [2013] NZHC 550. Recently, in
Deliu v New Zealand Police
[2020] NZHC 2506 at [263]-[264] Duffy J observed that “public law action is directly against the state for which the state
is primarily responsible. Typical y…the defendant is the Attorney-General. However, the statutory recognition given to
the Police in the Policing Act seems, to me, to be sufficient for it to be named as a defendant in a claim like the present
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22.
However, unlike other public servants. Police officers and other civilian police employees do
not enjoy immunity under s104 of the PSA. So, individual Police officers may be named in tort
or other civil proceedings.
23.
We suggest that the Crown, through the Attorney General, should be named in actions brought
against individual officers on the basis that the Crown may be directly or vicariously liable for
the acts and omissions of officers, depending on the nature of the claim.
9 It may be appropriate
to invite claimants to proceed against the Crown, in the name of the Attorney-General, alone
rather than against individual, named officers. If the proceedings for which you are instructed
on behalf of the Police name both the Attorney-General and individual officers, you should
address with Police whether the officers will need separate representation. In judicial review
proceedings there may also be a question of whether proceedings should be brought against the
individual officer or civilian employee as the decision maker, or the Commissioner of Police
under whose command and control Police employees (including officers) are required to
operate.
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SERVICE ISSUES
Service on Public Servants
24.
If a public servant is properly named as a defendant or respondent, personal service on that
public servant will be valid. If the plaintiff attempts to serve them on Crown Law, we wil need
instructions to accept service.
25.
Under the Cabinet Directions for the Conduct of Crown Legal Business 2016 paragraph 31:
If an employee of a government department is made a defendant in a civil action
arising out of the course of his or her employment, the Crown shal bear the
expenses of that defence, and the Attorney-General may take over the conduct of
the case. For the purposes of these Directions “employee” includes a Chief
Executive.
26.
While the Attorney-General may take over the case, until that happens the technical position is
that we have no status to represent any individual y named person and subject to the comments
that follow, cannot accept service of proceedings without that person’s instructions.
27.
Notwithstanding the technical position, documents served on Crown Law should be received
by reception in the first instance and referred to the relevant team leader or counsel as soon as
possible. It is then a matter for counsel to determine whether service has been properly
effected, whether Crown Law has authority to act, and whether we must seek and confirm
instructions or whether the documents need to be redirected.
28.
Reception staff wil be responsible for recording on a separate piece of paper the date the
documents are served on Crown Law and attaching that record to the documents for counsel’s
information. Counsel may subsequently wish to use a date stamp to mark the documents with
the date of service but this is not reception’s responsibility.
which is part NZBORA and part tort”. No authority to support that proposition was provided and it was made without
the Court having had the benefit of argument on the point.
9
In tort claims the Crown may be vicariously liable. In claims brought under the Bill of Rights, it will be directly liable.
10
Section 30 of the Policing Act 2008.
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29.
If the individual is not covered by Public Service Act 2020 (for example a Police constable) the
Cabinet Directions wil not apply and the issue of representation is a matter for negotiation
between that employee and their employer.
Service on Ministers
30.
Under paragraph 4.35 of the Cabinet Manual, Crown Law is authorised to receive service of al
documents on a Minister where the Minister is named in respect of actions in their ministerial
capacity.
31.
If the Minister is sued for a cause of action that arose while they were Minister but has more of
a personal nature (an example given in the Cabinet Manual paragraph 4.39 is a defamation
proceeding), they wil not necessarily be entitled to indemnity and the authority to accept
service on their behalf in paragraph 4.35 will not apply.
Service on Crown Solicitors
32.
Crown Solicitors do not have any authority to accept service of civil or judicial review
proceedings on behalf of the Crown, and such authority could only come from the
Solicitor-General.
[END]
Guideline Owner – Convenor, Professional Standards Committee
Published on 17 November 2014. Reviewed on 30 October 2019 and 21 June 2021. To be reviewed no
later than 21 June 2024.
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Document Outline
