Chapter 2
Why a new Crown Civil Proceedings Act?


2.1At common law prior to legislative intervention, the Crown could not be sued in the same way that private individuals could be, and the Crown had to invoke special procedures to enable it to sue.4 The Crown also enjoyed other privileges. Without the Crown Proceedings Act 1950 or its antecedents, the New Zealand Government could not be sued in contract if it were to breach a contract and would not be able to be held liable for the torts (civil wrongs) of its employees. Similarly, without the Crown Proceedings Act, the Crown would not have been obliged to discover its documents in civil cases.

2.2There are a number of explanations as to why the common law developed in this way, but the effect of various doctrines was that the Crown did not possess the same kind of legal personality that private individuals did. All the countries that inherited English common law needed statutes like the Crown Proceedings Act to remedy this defect.

4The best description of the pre-reform law is in Walter Baker Clode The Law and Practice of Petition of Right Under the Petitions of Right Act, 1860 (W Clowes and Sons Ltd, London, 1887).