Contents

Chapter 2
Why a new Crown Civil Proceedings Act?

Case for reform

2.3The Crown Proceedings Act is a statute of considerable constitutional significance. It is an important part of the rule of law that citizens ought to be able to obtain legal redress when the government has breached those citizens’ legal rights and, in appropriate circumstances, to receive compensation and other remedies. This is recognised by section 27(3) of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides:

Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

2.4The Crown Proceedings Act, and the earlier New Zealand statutes,5 went a considerable distance towards abolishing the privileged position that the Crown had previously enjoyed at common law in litigation. The Act’s aim was that suits would be taken against the Crown as if it were a private person. The old English maxim “the King can do no wrong” was replaced with an assumption that, if the Crown, or its servants, had breached an obligation that would also have been owed by private individuals, the Crown could be sued in the courts. The Act also abolished the somewhat confusing legal devices that had previously been used to circumvent the difficulties of suing the Crown, most notably the petition of right, as well as the Crown’s immunity from discovery and costs, which had frustrated litigants.

2.5It is because of its importance that the Crown Proceedings Act now needs to be updated. The Act does not reflect the concerns of contemporary New Zealand or the way in which New Zealand is now governed. The public service went through large-scale changes in recent decades, while the 1950 Act changed little to reflect this. The State Sector Act 1988 and the Public Finance Act 1989 created a new legal architecture for the New Zealand public service, and the Crown Entities Act 2004 consolidated the law relating to the many government entities that have their own corporate personality.

2.6The Crown Proceedings Act is also somewhat confusing and convoluted. For example, in most cases, a plaintiff attempting to sue the Crown in tort must first establish that an employee of the Crown has committed a tort. This requirement creates significant difficulties when it is alleged that the Crown or a government department as a whole has breached its obligations (systemic negligence). The way in which the 1950 Act was drafted means that, in some areas, it has also not kept up to date with changes in court procedure.

5Crown Liabilities Redress Act 1871; Crown Redress Act 1877; Crown Suits Act 1881; Crown Suits Act 1908; Crown Suits Act 1910.