When Power Goes Wrong · Liability & Remedy Ledger · Part 08

Why can’t ordinary remedies always be ordered directly against the Crown?

Section 17 of the Crown Proceedings Act gives courts broad civil-remedy powers but restricts injunctions, specific performance and direct recovery of Crown land/property, substituting declaratory relief in those situations.

A successful claimant cannot assume that every remedy available between private parties is available against the Crown in the same form.

Section 17(1) generally allows courts to make the orders they could make between private parties. But it then creates specific exceptions. Where an injunction or specific performance would ordinarily be sought against the Crown, the court must not grant that relief directly against the Crown and may instead make an order declaratory of the parties' rights.

Similarly, in proceedings for recovery of Crown land or property, the court does not order delivery or possession against the Crown; it may instead declare entitlement.

Choosing the wrong remedy can sink otherwise good pleading.A claimant must distinguish a declaration of illegality or entitlement from an injunction compelling the Crown, and must consider whether relief against an officer is itself prohibited because it would indirectly obtain relief unavailable against the Crown.

General ruleBroad civil relief is available.

Special Crown limitNo injunction/specific performance directly against Crown under s 17(1)(a).

SubstituteDeclaratory order.

Anti-circumventions 17(2) prevents obtaining indirectly against a Crown officer what cannot be obtained against the Crown itself.

Against the Crown, the remedy analysis must be done before the relief section of the pleading is drafted.

Primary statuteCrown Proceedings Act 1950, s 17.

DeclarationsDeclaratory Judgments Act 1908.

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