New High Court Rules and forms
The Judicature (High Court Rules) Amendment Act 2008 enacted on 25 September 2008 comes into force on 1 February 2009.
Section 8 repealed Schedule 2 of the Judicature Act 1908 and substituted a new Schedule 2, with the effect that the previous High Court Rules are repealed and replaced with new rules as from 1 February.
The new rules do not change, to any great extent, the practice or processes prescribed under the previous rules, but they represent an improvement in structure and presentation and closely follow the content of the previous rules.
The organisation of the rules conforms to current drafting practices, and the structure and layout comprise a pattern of parts and subparts, the sequence of which follows the sequence of a standard High Court civil proceeding. The 900-plus previous rules have been replaced by 33 parts, with each part devoted to a particular topic and numbered sequentially within that part. The latter set of parts of the rules comprises special provisions on specific topics such as probate, insolvency, company liquidations, judicial review and admiralty.
Features
Some features of the new rules are:
- They are restated in plain English.
- Latin expressions like "ex parte application" are replaced.
- Overly-long rules have been short-ened and reorganised to increase accessibility and understanding.
- Anomalies, for example, the confusing references to "days" in some rules but to "clear days" or " working days" in others, have been removed.
- Many technical terms are usefully retained, eg: "cause of action, probate, letters of administration".
- Out-dated words and expressions and unnecessary technical language have been eliminated; eg, "hereinafter" and "hereunto", "above-named", "propound", "jurat", "forenoon" as has all surviving sexist language – "him", "his defence".
- Simple definitions have been inserted wherever possible.
Forms
New forms have replaced the forms in the previous rules and they are grouped according to their subject matter as follows (and in this order):
- General forms (G 1, G 2, etc) are those that the High Court Rules require, or authorise to be used, in a standard High Court proceeding.
- Judgment forms (J 1, J 2, etc) are those used when entering a formal judgment on the court record.
- Enforcement forms (E 1, E 2, etc) are those used when a judgment is being enforced.
- Commercial list forms (CL 1, CL 2, etc) are those used when proceedings are on, or are to be transferred to, the commercial list (Auckland registry only).
- Probate forms (PR 1, PR 2, etc) are those used in connection with applications for probate or administration.
- Admiralty forms (AD 1, AD 2, etc) are those used in the High Court’s admiralty jurisdiction over ships and cargo.
- Arbitration forms (Arb 1, Arb 2, etc) are those used when the High Court’s jurisdiction is invoked in relation to an arbitration.
- Company forms (C 1, C 2, etc) are those used in relation to a company’s liquidation.
- Bankruptcy forms (B 1, B 2, etc) are those used when a person is being adjudicated bankrupt, and in the administration of the bankrupt estate.
The forms are followed by: Schedules 2 and 3, relating to costs; Schedule 4, relating to expert witnesses; and Schedules 5, 6 and 7 relating to case management.
Part 24 – Insolvency
The rules introduced on 3 December 2007 have been reproduced in the new rules without any substantial changes. However, references to court offices have been changed to court registries, and rule 24.19 provides that the time period for swearing an affidavit of the applicant creditor (which was previously "not earlier than 3 days before" the date of the hearing) is now "at least 3 working days before" the date of the hearing of the application.
Part 27 – Probate and administration
The rules introduced on 1 November 2007 in conjunction with the Wills Act 2007 have been reproduced in the new rules without any substantial changes. However, the following matters relating to probate and administration proceedings should be noted:
- R27.4(4) omits reference to R7.23(2)(a) in the first line.
- R27.35(4)(a)(iii) now recognises the disqualifying provisions of s77B of the Administration Act that relates to a de facto relationship of "short duration" (ie, less than 3 years), and these provisions now have to be negated by a de facto partner applicant. See also R27.36(5).
- Form G32 (Interlocutory application without notice) in paragraph 1 states that "the applicant will on [date] apply to the court". This is incorrect because this type of application does not require a hearing date.
- Form PR7 (probate in common form), Statement B of paragraph 2 refers to R7.14, which should in fact be R27.14.
- Form PR1 (affidavit for obtaining grant of probate) in paragraph 4, the second sentence beginning "If the deceased…". This sentence is instructional text, and as such should have appeared in italics. The sentence should not be included in any affidavits.
- Paragraph 6 of Forms PR1 and PR2 (affidavit for obtaining grant of letters of administration with will annexed) that relates to proving a separate document associated with the will (codicil) states: "The deceased revoked or revived the will referred to in paragraph 5, or part of it, in a separate document." This paragraph has reverted to the wording of an earlier draft that was corrected for the forms prescribed in the High Court Amendment (Wills Act 2007) Rules 2007. The wording of the paragraph as it appears in paragraph 6 of forms 51 and 52 of the previous rules should continue to be used.
- Paragraph 5 of forms PR1 and PR2 (proving the will) now provide for the date of the will to be referred to only once.
- In paragraphs 11 and 6 respectively of forms PR2 and PR3 the applicant is required to state the date on which the notice of choice of option was filed in the court. This is to ensure the notice is filed before the affidavit is sworn.
- Paragraph 6 of form PR3 now provides for a de facto partner applicant to state that their beneficial interest is not affected by the de facto relationship being one of short duration.
- The rule to be stated in the form of probate, letters of administration with will annexed and letters of administration on intestacy is:
-
- Where a person dies with a will on or after 1 November 2007 – R27.14 applies.
- Where a person dies with a will before 1 November 2007, the new High Court Rules do not apply to his or her will and the old High Court Rules continue to apply. However, this is subject to the new R27.14 which does apply.
- Where a person dies intestate on or after 1 February 2009 – R27.14 applies.
- R27.1 does not explicitly address the situation of a grant of administration in relation to a person dying before 1 February 2009. The inference appears to be that the old rules continue to apply to grants of administration in respect of persons dying before 1 February 2009. Unlike where the person dies with a will, this is not subject to R27.14. Therefore, the grant is made under rule 644.
Practitioners will need to be familiar with the new rules because compliance is required from 1 February 2009 and the new forms must be used in all cases from that date.
John Earles
Registrar and Specialist Technical Advisor
Wellington High Court
District Courts Rules
Heather McKenzie, Clerk to the Rules Committee, has advised the NZLS that the District Courts Rules have to be enacted after their High Court counterparts. She said that due to significantly more operational and training requirements, the necessary lead-in time was longer so that the District Courts Rules were expected to come into effect in the latter part of this year.