Chapter 1

The reason for a new Crown Civil Proceedings Act

1.1This Issues Paper seeks submissions on a draft Crown Civil Proceedings Bill, which would replace the Crown Proceedings Act 1950 with a modernised and simplified statute.

1.2The terms of reference for this review are as follows:

The ability of citizens to bring civil legal proceedings against the Crown and its servants is an important part of New Zealand’s constitution, and is protected by the New Zealand Bill of Rights Act 1990. The Crown Proceedings Act 1950 is the principal statute that governs the civil liability of the Crown. It is based on a 1947 United Kingdom Act. It was designed to solve problems with the law as it stood at that time in the United Kingdom, and does not reflect the way in which New Zealand is now governed or modern court practice. As a result the current Act presents procedural and substantive difficulties for both plaintiffs seeking to sue the Crown, and for the Crown in defending those actions.

The purpose of this review is to modernise and simplify the Crown Proceedings Act so as to provide a better mechanism for citizens to bring just claims against the Crown, and to allow the Crown to appropriately defend claims. The review will also consider the relationship between the Crown Proceedings Act, and provisions that seek to immunise or indemnify the Crown or it servants, such as s 86 of the State Sector Act 1988. This review is not intended to review the underlying civil law (tort and contract) through which people seek to bring the Crown to account. This review will include consultation with the Crown Law Office, other government departments and the profession.

1.3The 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.

1.4The Crown Proceedings Act, and the indigenous New Zealand statutes that preceded it,1 went a considerable distance towards abolishing the privileged position that the Crown had previously enjoyed at common law in litigation. Its 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, then 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.
1.5It is because of its importance that the Crown Proceedings Act now needs to be updated. This reform project is a continuation of earlier work dealing with the legal nature of the Crown conducted by the Law Commission in the late 1980s and early 1990s.2 The public service has been through large-scale changes in the last three decades, but the Act has changed little to reflect this. The State Sector Act 1988 and the Public Finance Act 1989 have created a new legal architecture for the New Zealand public service, while the Crown Entities Act 2004 has consolidated the law relating to the many government entities that have their own corporate personality. The Crown Proceedings Act contains provisions that do not reflect modern government accounting practices: for instance, those relating to the mechanics of the enforcement of judgments against the Crown.3
1.6Rather than reflecting the concerns of contemporary New Zealand, the Act reflects the concerns of those who drafted the Crown Proceedings Act 1947 (UK), which was in many ways based on a 1927 report.4 As a result, the Act does not reflect the way in which New Zealand is currently governed, and is somewhat confusing and convoluted. For instance, in most cases a plaintiff attempting to sue the Crown 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 government department as a whole has breached its obligations (sometimes called systemic negligence). Moreover, the way in which the 1950 Act was drafted means that in some areas it has not kept up to date with either reform in the public sector or with changes in court procedure.
1Crown Liabilities Redress Act 1871; Crown Redress Act 1877; Crown Suits Act 1881; Crown Suits Act 1908; and Crown Suits Act 1910.
2Law Commission Crown Liability and Judicial Immunity: A Response to Baigent’s Case and Harvey v Derrick (NZLC R37, 1997). In August 1989 the Minister of Justice gave the Commission the following reference:
To give fuller effect to the principle that the State is under the law and to ensure that as far as practicable legal procedures relating to and remedies against the Crown (as representing the State) are the same as those which apply to ordinary persons. With this in mind the Law Commission is asked to examine aspects of the legal position of the Crown, including but not limited to -
1 the civil liability of the Crown, its officers and agencies, and in particular special rules limiting or excluding that liability
2 the Crown Proceedings Act 1950, with a view to its reform and simplification
3 the criminal liability of the Crown, its officers and agencies, and relevant procedures,
and to make recommendations accordingly.
The issue of the criminal liability of the Crown was partially dealt with by the Crown Organisations (Criminal Liability) Act 2002.
3See the discussion below in ch 5.
4Crown Proceedings Committee Report (1927) Cmd 2834.