When Power Goes Wrong · Liability & Remedy Ledger · Part 03

Can the official be sued personally?

Sometimes—but office holders may have statutory or common-law immunity. Public Service Act s 104 protects good-faith public servants personally, while the Crown Proceedings Act may still leave the Crown exposed.

Personal liability must be separated from institutional liability. A claimant may feel that a named official “did this”, but the statute may protect that person personally while preserving a claim against the Crown.

Section 104 of the Public Service Act 2020 gives public-service chief executives and employees immunity from civil proceedings for good-faith acts or omissions when carrying out or intending to carry out their responsibilities, functions, duties or powers.

Good faith is not the same as correctness.An official can make a legally wrong decision in good faith and still be personally immune. Conversely, bad faith, conduct outside protected functions, or a different statutory framework may change the analysis.

Potential defendantOfficial personally, Crown, statutory entity, or more than one defendant.

Immunity questionDoes a statute protect the official, and what is the exact scope of that protection?

Crown interactionCrown Proceedings Act s 6(4A) can preserve Crown tort liability despite specified public-servant immunity.

Separate routeJudicial review can remain available even where damages against the individual are barred.

The correct pleading question is not “who signed the letter?” but “who is legally liable for the act, and does the individual have immunity?”

Primary statutesPublic Service Act 2020, s 104; Crown Proceedings Act 1950, s 6(4A).

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