Contents

Chapter 2
Why is a Crown Civil Proceedings Bill needed?

Introduction

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.5 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. A statute was required in the countries that inherited the common law in order to confer legal personality upon the Crown. What is important for present purposes is that it is now an accepted part of the rule of law that in civil proceedings the Crown should be, as far as is possible, in the same position as private individuals.

2.3The Crown Civil Proceedings Bill, which we propose should replace the current Crown Proceedings Act, has two core tasks: first, to give the Crown sufficient legal personality so that it may be sued; and second, to subject the Crown to the same law, procedure and rules as other litigants.

2.4Some circumstances remain where different law, procedures or rules continue to be justified, not so much because of a desire to protect the Crown, but rather as recognition that the Crown is not always simply another litigant. Where different treatment is justified, it is important for the policy behind such a departure from principle to be clear and for the exception to be no more than necessary to give effect to that policy. For example, we consider that the replacement statute should continue to contain provisions allowing the Crown to assert public interest immunity in cases of national security to prevent the discovery of documents, but have asked for views about how best to provide a check on the possibility of blanket assertions of privilege.6

2.5In most respects the changes that we have suggested are subtle, but nevertheless important. Key changes in the proposed Bill are:

5The 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).
6See ch 7.
7Couch v Attorney-General (on appeal from Hobson v Attorney-General) [2008] NZSC 45, [2008] 3 NZLR 725; and Couch v Attorney-General (No 2) (on appeal from Hobson v Attorney-General) [2010] NZSC 27, [2010] 3 NZLR 149.