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Proceedings by and Against the Crown 1975

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PARLIAMENT OF NEW SOUTH WALES REPORT OF THE LAW REFORM COMMISSION ON PROCEEDINGS BY AND AGAINST THE CROWN 1975 L.R.C. 24 Ordered to be printed, 26 February, 1976 BY AUTHORITY D. WEST, GOVERNMENT PRINTER, NEW SOUTH WALES—1976 G 7883—1 1975-76—613 [$3.68] PREFACE The Law Reform Commission is constituted by the Law Reform Commission Act, 1967. The Commissioners are— Chairman: The Honourable Mr Justice C. L. D. Meares. Deputy Chairman: Mr R. D. Conacher. Others: Mr C. R. Alien. Mr D. Gressier. Professor J. D. Heydon. His Honour Judge R. F. Loveday, Q.C. The offices of the Commission are in the Goodsell Building, 8-12 Chifley Square, Sydney. The Secretary of the Commission is Mr F. McEvoy. Letters should be addressed to him. This is the twenty-fourth report of the Commission on a reference from the Attorney General. Its short citation is L.R.C. 24. CONTENTS Page Preface .. .. .. .. .. .. .. .. .. 3 Contents .. .. .. .. .. .. .. .. 5 Report: Part 1.—Introduction .. .. .. .. .. .. 7 Part 2.—Historical background of proceedings by a subject against the Crown .. .. .. .. .. 10 Part 3.—The bold Australian innovation: equating the State "as nearly as possible" to the subject .. .. 13 Part 4.—Liability of the State under the Claims against the Government and Crown suits Act, 1912 .. 15 Part 5.—Recommendations in respect of the Claims against the Government and Crown Suits Act, 1912 .. 23 Part 6.—Application of the District Court Act, 1973, and the Courts of Petty Sessions (Civil Claims) Act, 1970, to the Crown .. .. .. .. .. 25 Part 7.—Proceedings in Equity by a subject against the Crown independently of the Claims against the Govern- ment and Crown Suits Act, 1912 .. .. .. 27 Part 8.—Proceedings by the Crown against a subject.. .. 28 Part 9.—Recommendations in respect of proceedings to which the Crown and a subject are parties other than proceedings under the Claims against the Govern- ment and Crown Suits Act, 1912 .. .. .. 32 Part 10.—Title of the Crown in proceedings to which it is a party in separate inconsistent interests .. .. 34 Part 11.—Draft Crown Proceedings Bill .. .. ..36 Part 12.—Crown instrumentalities .. .. .. .. 36 Part 13.—Liability in respect of the torts of persons exercising an independent function conferred or imposed by law .. .. .. .. .. .. ..38 Part 14.—The application of statutes to the Crown .. .. 64 PartlS.—Summary of main recommendations .. ..92 Appendices: A.—Claims against the Government and Crown Suits Act, 1912 .. .. .. .. .. .. ..95 B.—Claims against the Colonial Government Act, 1876 .. 99 C.—The implications of the decision of the High Court in Downs v. Williams .. .. .. .. .. 133 D.—Draft Crown Proceedings Bill .. .. .. .. 149 E.—Notes on draft Crown Proceedings Bill .. .. .. 156 F.—Draft Vicarious Liability (Independent Functions) Bill .. 160 G.—Notes on draft Vicarious Liability (Independent Function) Bill .. .. .. .. .. .. .. ..167 Table of Cases .. .. .. .. .. .. .. ..171 Table of Sections of Report .. .. .. .. .. .. 175 REPORT ON PROCEEDINGS BY AND AGAINST THE CROWN To the Honourable J. C. Maddison, B.A., LL.B., M.L.A., Attorney General and Minister of Justice. PART 1.—Introduction 1.1 Terms of reference. We make this report under our reference "To review the law relating to proceedings by and against the Crown and incidental matters." 1.2 Scope of the reference. The principal legislation which presently governs these proceedings is the Claims against the Government and Crown Suits Act, 1912. This Act appears as appendix A.1 The historical develop- ment of the liability of the Crown to give legal redress to subjects2 is such that it is impossible to sever this liability from the procedures which, by statute, have been made available to subjects to sue the Crown. The Claims against the Government and Crown Suits Act, 1912, not only provides the procedure by which subjects can sue the Crown but also, in large measure as an incident of that procedure, it delimits the liability of the Crown. We are concerned, therefore, not merely with the adjectival law of methods of enforcement against the Crown of the liability which the Crown has but also with the substantive law of that liability. Our reference requires us to consider proceedings brought by the Crown against a subject as well as proceedings brought by a subject against the Crown. We are concerned also with matters which are incidental to the review entrusted to us. As will appear we find it necessary to review the law relating to the application to the Crown of statutes and to make recom- mendations concerning this.3 We recommend also reform of the present law by which a master is not liable for torts committed by his servant in the exercise of a function which is not conferred or imposed upon him by the instructions of the master but is conferred or imposed upon him directly by the law itself. This law has its application mainly in respect of servants of the Crown. But in some unusual cases it applies also in respect of servants of private employers. We recommend, as an incidental matter, that the reform extend to these cases.4 Unless the reform is thus extended, it will be incomplete. But we do not regard our terms of reference as a warrant to recommend reforms of general law, as equally applicable to 1For comparative legislation see Hogg, Liability of the Crown (1971) at pp. 237-246. But note that the relevant legislation in South Australia is now the Crown Proceedings Act, 1972-5. 2 We use the expression "subject" to mean any person or body corporate other than the Crown. 3 Part 14. 4 Part 13. 8 subjects as to the Crown, on the ground that the general law affects the liability of the Crown.5 1.3 Objectives of the report. We do not aspire to a definitive treatise upon the Crown and the law.6 Our principal task, as we see it, is to determine in what respects the present law exhibits deficiencies for which the appropriate remedy is legislation and to make recommendations as to the legislation which is needed. Our report would be of inordinate length if we were to discuss all the problems which can arise in litigation between a subject and the Crown. We do not, in general, discuss problems which the courts have satisfactorily resolved by judicial decision,7 problems for which adequate judicial solutions are evolving,8 or problems in respect of which it would be sanguine to suppose that any formula provided by legislation would lead more often to decisions which would be a reasonable adjustment of the interests of subjects, on the one hand, and considerations special to the Crown, on the other hand, than would be the decisions to which courts would come by applying principles derived from the common law.9 5 For example, we refrain from discussion of whether it is just that where a servant of the Crown commits a tort in the course of his service, not only the Crown, but also the servant himself, is liable in damages to the person wronged. The liability of the servant of the Crown is but an instance of the general law that a tortfeasor is personally liable for his tort notwithstanding that the tort was committed in the course of his service as the servant of a master. In practice, of course, it is almost invariably the master who pays. 6 A succint general account, containing much valuable comment, is P. W. Hogg, Liability of the Crown, published in 1971. 7 For example, the problem of Crown privilege against disclosure of docu- ments, where disclosure would be injurious to the public interest, was satisfactorily resolved by the decision of the House of Lords in Conway v. Rimmer [1968] A.C. 910. 8 For example, where a Minister indicates his intention to advise the Governor to take some action, and that action would be in unlawful derogation of the rights of a subject, the Supreme Court is unable, because of the constitutional convention that the Governor must act in accordance with advice given to him by the Ministers of the Crown, to make any coercive order directed to the Governor (or the Governor-in-Council) that he act otherwise than in accordance with the proposed advice. But the court would now surmount this difficulty by making an order which declares what the rights of the subject are. Such an order would not infringe the constitutional convention because it would not be a coercive order as to what the Governor is to do. But the result would be the same as if such a coercive order were made—because the Minister would not give advice which is inconsistent with the rights declared by the court. See N.S.W. Mining Co. Pty Ltd v. Attorney-General for New South Wales (1967) 67 S.R. 341. Section 75 of the Supreme Court Act, 1970, now provides that "No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of rights whether any consequential relief is or could be claimed or not." 9 For example, the problem of determining whether the Crown evinces an intention to contract where, in pursuance of a policy of public welfare, it enters into an arrangement with a subject to confer benefits upon him conditionally upon some action being taken by him. See, for example, Administration of the Territory of Papua and New Guinea v. Leahy (1961) 105 C.L.R. 6. But the Crown is contractually bound by ordinary commercial arrangements—albeit that they are entered into "as a matter of Government policy": New South Wales v.
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