Caution urged on proposed default judgment rule revision
The New Zealand Law Society is worried that proposed changes to the default judgment procedure will result in extra expense and the removal of some rights.
Comments provided by the Law Society to the Rules Committee on its consultation paper Proposed revision of default judgment and formal proof rules say the high cost of litigation has been the subject of much criticism.
“The proposed amendments to the default judgment procedures will undoubtedly result in additional cost which seems unjustified,” the comments state. “The Law Society is unaware of any dissatisfaction with the current procedures, and would be loath to see a further layer of costs imposed for no good reason.”
The Law Society says it believes the default position should be that judgment be granted on the papers unless the court requires otherwise. Where some hearing is needed, there would need to be appropriate provision in the schedule of costs to allow for the additional time required.
The current rules operate on the basis that a defendant who does not file a statement of defence is presumed to have no opposition to the entry of judgment. The Law Society says the reasoning behind the proposed rules erodes this presumption, and imposes on the court the role of protector of the defendant.
“That is a significant shift in the theory behind the default procedures. The Law Society does not consider that a basis has been advanced to justify this change in stance. While there may be a need to improve the statement of procedures in the rules, it does not seem necessary to go any further than this.”
Pointing to another area of concern with the proposed changes, the Law Society says while the current rules allow the defendant in a formal proof hearing to file affidavit evidence in mitigation as of right and other evidence with leave, this appears to have been omitted in the proposed new rules.
“It would seem sensible to include a similar provision. There does not appear to be any justification for removing such rights altogether,” it says.
A copy of the Law Society’s comments is available here.