Chapter 2
Why a new Crown Civil Proceedings Act?

The overall scope of the new Act

2.17The new Act we are recommending is not a “litigation against the government” statute. First, it is limited to civil proceedings and not intended to cover criminal cases or judicial review cases, which will continue to have their own statutes and separate rules. Second, it only deals with those parts of the government, or the state, that form part of the Crown and which therefore cannot sue or be sued without statutory provisions. These include the core government departments. It is possible to conceive of another function for a Crown Civil Proceedings Act – that of acting as a funnel for all litigation against the government or state. A more expansive statute could deal with litigation against Crown entities, some of which, like school boards of trustees or the Accident Compensation Corporation, serve as a major point of interaction between New Zealanders and their government.

2.18Crown entities are, however, constituted as bodies corporate with the capacity to sue and be sued.10 These entities fall outside the scope of the 1950 Act and the replacement one we are proposing. One of the reasons for setting up Crown entities as removed from the central Crown is to manage risks and liabilities in different ways from how they are managed by the core public service. This is reflected in the Public Finance Act 1989, which provides that the Crown is not liable for the debts of Crown entities or other agencies or bodies controlled by the Crown.11

2.19Nothing prevents an all-of-government direction as to the conduct of the litigation of Crown entities under section 107 of the Crown Entities Act 2004. However, we do not think that this should be the role of a new Crown Civil Proceedings Act.

10Crown Entities Act 2004, s 7.
11Public Finance Act 1989, s 49.