The Crown at Law

Press, Volume LXXI, Issue 21450, 16 April 1935, Page 12

The Crown at Law

The thoughtful and informative address delivered by Mr A. F. Wright to the Canterbury College Law Students' Association on the privileges and prerogatives of the Crown when at law with the private individual or corporation, again directs attention to the urgent need of reform in this connexion. So frequently, with such vehemence and from such responsible and unprejudiced quarters have the existing provisions of the law, giving the Crown incalculable advantages when being sued by the private litigant, been attacked that it is xemarkable that so little progress has been made towards an equitable adjustment. These protests have come not only from the interested parties, but also from the judges themselves who have to administer a law that they know to be bad in principle and in effect. As Mr Wright indicates, dissatisfaction with the law, which preserves in effect the Royal prerogative to departments of State, goes back for many years and there has been agitation in England for between 70 and 80 years to have the procedure altered. With the remarkable expansion of State activities that has occurred in recent times the agitation has become more vigorous and intense. " All parties *' agree," says Sir John Marriott in the final issue of the "Edinburgh •' Review," " that the ever-widening " activities of the Crown grow daily * more oppressive. Judges have " expressed their opinion about " it on innumerable occasions." In a foreword to an article by Dr. P. J. Port, Lord Sankey had this to say, inter alia: " There are also cases "where the modern tendency has " been to make the department both "judge and prosecutor to the ex- " elusion not only of the right, ex- " cept in very limited circumstances, " to appeal to the public courts, but " also to the exclusion of those rights "of being heard and of hearing " what is said against one, which " we had come to regard as the heri- " tage of every Englishman." And innumerable remarks of similar import have fallen from high legal authorities. Some of the privileges that the Crown enjoys, which were mentioned by Mr Wright in his address may be quoted, The Crown, when a party to litigation, may demand discovery against the subject, but the subject may not demand discovery against the Crown. The Crown may "amend" its pleadings in Petition of Right without limitation, but the subject may amend only if the amendment is such that the Crown would have endorsed the petition thus amended before it permitted the suppliant to come into court. The Crown may agree to a submission to arbitration but if, having submitted, it objects to the enforcement of the award in the same way as it might have been enforced against the other party, had he been

unsuccessful, the award cannot be enforced. Against such flagrant injustices voices have been continually raised in protest. In England, where the position is even worse than in New Zealand, an attempt has been made to alter the law by seeking the introduction in the House of Lords of a Crown Proceedings Bill. This proposes to place the Crown in litigation on an equality with the subject, to make the Crown liable for torts or wrongs caused to subjects and to put the Crown on the same footing as other litigants regarding costs. Despite cordial support from legal authorities and the press, the bill has not yet become law. A similar bill has been drawn up by the New Zealand Law Society and the Associated Chambers of Commerce and pro : mises have been given that the bill will be proceeded with. Its urgency is unquestionable. The words of the authoritative Committee on Ministers' Powers which made its report to the British Parliament in 1932 are equally applicable to New land's case. "Unless and until the " Crown Proceedings Bill or a simi- " lar measure is passed into J aw," says the committee's report, "there " will remain a gap in the structure "of the Constitution, where the "supremacy of the law does not "prevail, even if all our recom- " mendations are wholly carried "out." As Mr Wright pointed out, in Australia since 1903 when the Commonwealth Constitution was framed, litigation by a subject against the Crown has been dealt with in the main as between subject and subject with consequences just to all. It is high time that New Zealand followed her sister Dominion's example.