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Summary of information on COVID-19 response relevant to legal practice

26 March 2020

The New Zealand Law Society | Te Kāhui Ture o Aotearoa is reviewing the Coronavirus situation on a daily basis and will provide regular updated advice from reputable sources for the law profession. A special website section has been set up and is kept updated.

The information on this page is summarised to focus on matters relating directly to legal practice and the situation since the declaration of Level 4.

Information on the senior courts

The Chief Justice has released a statement which says District Courts and the High Court are excluding from courthouses members of the public whose attendance is not required for the business of the court that day. This takes effect immediately. Supporters of people appearing in person will be denied entry to courthouses unless they get advance permission from the presiding Judge. These requests cannot be made in person at the courthouse because all public counters are closed to the public, as are court precincts. Instead, permission can be requested by telephoning the Ministry of Justice Contact Centre 0800 COURTS (0800 268 787). The court will remain open to accredited members of the media to ensure that the principles of open justice continue to be observed. The following people are also permitted to enter the court: defendants, prosecutors, lawyers and officers of the court. All people attending court may be required to show identification.

Chief Justice Helen Winkelmann has provided advice on court operations at Level 4 in a letter to the legal profession. This includes the suspension of all new jury trials for two months from 23 March.

Details of all courts are also updated regularly on the Courts of New Zealand website.

The Ministry of Justice says the following are priorities in the High Court: Custodial remands, Mental Health disposition, urgent Bail appeals. Cases that are not priority proceedings will be rescheduled to the next available date. The registry will advise participants of this. Please note there may be a delay in doing this due to the volume of cases required to be rescheduled.

All civil matters set down for hearing in the Christchurch, Timaru, Dunedin, Invercargill and Greymouth High Courts have been adjourned from 25 March 2020 until Friday 15 May 2020, Associate Judge Dale Lester has advised. In respect of any urgent matter where counsel can agree directions, including those in the earthquake list, counsel may still email a joint memorandum to ChristchurchHC@justice.govt.nz seeking directions or orders by consent.

Information on the District Court

Chief District Court Judge Heemi Taumaunu has decided on priorities for proceedings in the District Court. The Ministry of Justice identifies the following civil proceedings as priorities in the District Court: Injunctions, Harassment Orders, Harmful digital communications, Tenancy Tribunal appeals against evictions.

Information on the Coroners Court

Chief Coroner Deborah Marshall has advised that the Coroners Court will not be holding inquests in the coming week.

Information on the Waitangi Tribunal

All currently scheduled Waitangi Tribunal hearings and other events are adjourned while the country is at Level 4. All hearings and other events will be rescheduled once we have ceased to be at Level 4, Chief Judge Wilson Isaac says. All filing of documents with the Tribunal is to be electronic and any application seeking urgent relief is to be directed to Chief Judge Isaac.

Information on the Youth Court

The Ministry of Justice lists the following priorities for the Youth Court during Level 4: Arrests (first appearances), Secure care applications, Bail applications, Review of custody, Criminal Procedure (Mentally Impaired Persons) Act 2003 hearings, Early release hearings. It says if your matter is not on this list, do not come to court. Cases that are not priority proceedings will be rescheduled to the next available date. The registry will advise participants of this. Please note there may be a delay in doing this due to the volume of cases required to be rescheduled.

Information on other specialist courts

The Ministry of Justice says information on the Alcohol and Other Drugs Treatment Court (which will operate by phone for participants), Te Kooti Rangitahi, Pasifika Court and Matariki Court will be available shortly.

Mental Health Review Tribunal

The Tribunal has advised that it will continue to receive and hear applications in accordance with its statutory duty, unless its functions are suspended. It intends to do so in a way that best helps avoid unnecessary risk to those involved in hearings and recognises the additional pressure which Tribunal hearings can place on already strained resources.

Special sittings and admission ceremonies

The Ministry of Justice says special sittings and admission ceremonies may be affected. "If you planned to attend any of these, please call 0800 COURTS (0800 268 787) to confirm what arrangements are being made," it says.

Practice management and other requirements

AML/CFT

The Department of Internal Affairs has issued guidance on complying with AML/CFT verification requirements during COVID-19 levels. The department's news and information page on AML/CFT is available here.

The department has also advised that for the next four weeks while the country is at alert level 4, and for any further period of restriction, it will not be commencing any new compliance assessments. "If your business is currently subject to a desk-based review or has been visited for an on-site inspection, we will complete those assessments and report back to you within normal time frames or as mutually agreed," it says.

CPD

The Law Society | Te Kāhui Ture has said the 2019/20 reporting deadline for lawyers submitting CPD declarations remains 31 March 2020, but restrictions to learning activities as a result of COVID-19 will be considered acceptable cause for seeking deferral.

Trust accounts

The Law Society | Te Kāhui Ture has advised that monthly trust account certificates should still be submitted online where possible. The Law Society has contacted all trust account supervisors with information on the process around the coming deadline.

Areas of legal practice (including specialist courts)

Commercial and company law

Commerce Commission chair Anna Rawlings says the Commission will not tolerate “unscrupulous businesses” using COVID-19 as an excuse for non-essential collusion or anti-competitive behaviour. This includes sharing information on pricing or strategy where it isn’t necessary while an Alert Level 4 situation exists. She says the Commission wants to reassure businesses providing essential goods and services, and does not want them to feel constrained by the Commerce Act in working together to do this. This follows the Government policy statement on essential services.

The Takeovers Panel has approved the granting of a suite of temporary class exemptions from the Takeovers Code that are aimed at assisting Code companies in raising capital. The focus of the relief is on making it quicker and easier for shareholders to provide additional capital to Code companies.

NZX confirmed on 23 March that the capital markets – as an essential service to New Zealand – will remain fully operational.

Criminal law

From 25 March the Parole Board is considering all cases on the papers by four of the most experienced senior panel convenors. Counsel are not able to appear in person, but written submissions are welcome. These will be required as early as possible by email to info@paroleboard.govt.nz.

The Ministry of Justice says courts may be able to extend the due date or offer an alternative payment plan for people whose circumstances have changed and who are having trouble paying their fines. Anyone with questions of concerns can call call 0800 4 FINES (0800 434 637).

The Chief Justice has advised that under s 197 of the Criminal Procedure Act 2011, a court may exclude members of the public when necessary to avoid endangering the safety of any person present, to avoid undue disruptions to the conduct of proceedings, or to avoid prejudicing the maintenance of the law. In the present state of emergency, it has been necessary to exercise this power, she says. This is effective immediately. The only members of the public who can enter the District Court or High Court for criminal proceedings are those whose presence is required for the business of the court.

The Ministry of Justice lists the following criminal priority services which will continue in the District Court, where the defendant is in custody: public order offenders, bail applications (including breaches), sentencing of those already in custody, deportation warrants, Criminal Procedure (Mentally Impaired Persons) Act 2003 hearings, Breach of Police Safety Orders (PSOs). It says if your matter is not on this list, do not come to court. Cases that are not priority proceedings will be rescheduled to the next available date. The registry will advise participants of this. Please note there may be a delay in doing this due to the volume of cases required to be rescheduled.

Employment law

While the Employment Court remains open for essential services, there will be a number of matters which may appropriately be dealt with other than by hearing in person. Judges will assess all cases currently before the Court and convene telephone conferences with the representatives to discuss next steps, including dealing with matters on the papers, by telephone or via AVL, or adjournment. The court says all new matters will continue to be referred to a Judge and will be prioritised in the usual way. Parties are reminded of the ability to apply for urgency under cl 21, sch 3 of the Employment Relations Act 2000. Any application should be supported by a full explanation as to why urgency is sought.

The Employment Relations Authority has postponed all investigation meetings scheduled up to and including 24 April 2020. Authority Members will consider whether investigations of some matters can continue sooner through telephone conference or AVL or be decided by written evidence and submissions only. Parties can still lodge new applications online. Case management conferences will also continue where possible by telephone. Parties should continue to follow timetable directions already made. Parties will be contacted about already scheduled cases.

From 23 March the default mode of service delivery by Employment Mediation Services for mediation services is via telephone mediation. All circuit travel and face to face service delivery is suspended until further notice.

The State Services Commission has provided guidance for state sector agencies on workforce mobility through Alert Level 4.

Environmental law

The Environment Court will not physically sit in courtrooms or elsewhere and ADR events like mediation and expert conferencing will not be the subject of physical gatherings, Principal Environment Court Laurie Newhook says. This will remain the situation until the Alert Levels drop. Judge Newhook will arrange prioritisation of cases over which Environment Judges are presiding. Those that are the most urgent involving important issues in the public interest, could be the subject of some remote activity by Judges and Commissioners. Much of such activity will be audio, as AVL facilities are being prioritised by Heads of Bench and the Ministry, to the Category 1 Courts. Some AVL work might be possible, but there can be no guarantee.

Family law

The Family Court will continue to operate through all pandemic alert levels but on a reduced capacity, dealing with priority proceedings.

Principal Family Court Judge Jacquelyn Moran has provided guidance in response to questions raised about the management of children from families who have shared care or contact arrangements pursuant to Family Court orders.

With the announcement by Chief Justice Helen Winkelmann of exclusion of members of the public whose attendance is not required for the business of the court that day, there is advice that for those people who need to attend a court for priority Family Court proceedings, or other priority civil proceedings, there will be signs on the court doors advising how they can contact court staff for assistance.

The Ministry of Justice lists the following priorities for the Family Court during Level 4: Public Health Order applications, Without notice applications: Care and protection (s67 and s 78 immediate uplift), Protection and related Orders (Family Violence Act), Care of Children applications (family violence related), Mental Health (applications for compulsory treatment orders) hearings, Other without notice applications: PPPR & PRA hearings, Hague Convention hearings, Substance Addiction (Compulsory Treatment) hearings, s 67 Care and Protection hearings. It says if your matter is not on this list, do not come to court. Cases that are not priority proceedings will be rescheduled to the next available date. The registry will advise participants of this. Please note there may be a delay in doing this due to the volume of cases required to be rescheduled.

Immigration

Immigration New Zealand has provided a range of information about border closures and immigration developments.

Intellectual Property

IPONZ says its existing commitment to flexible working means that our staff members already have the tools they need to work remotely. It anticipates that IPONZ will be able to continue providing at least core services. Anyone affected by circumstances related to COVID-19 may request IPONZ for an extension of time to meet that deadline. IPONZ will assess extension of time requests on a case-by-case basis.

Legal aid

Legal Services Commissioner Brett Dooley has provided an update on legal aid services in relation to Level 4. He says continuity plans are being put in place to allow legal aid services to keep functioning and to support the essential services that have been agreed by the judiciary. Invoices will continue to be paid as quickly as possible, and where possible changes will be made to current processes that will allow Legal Aid Providers to continue to work safely and remotely when needed. The Public Defence Service has agreed to reduce the number of future assignments assigned to them and similarly with duty lawyer rosters, to try and minimise the financial impact for some legal aid lawyers. Other changes include the suspension of audits and complaints investigations and the extension of approvals for all current legal aid provider contracts and any approvals due to expire within this time until June 2021.

Māori Land

All currently scheduled Māori Land Court hearings and other events are adjourned while the country is at Level 4. All hearings and other events will be rescheduled once New Zealand has ceased to be at Level 4, Chief Judge Wilson Isaac says in a statement. Any application for urgent injunctive or other relief filed with the Court during this period, it is to be directed to Chief Judge Isaac to address

Property law

The Law Society’s Property Law Section has recommended use of a new clause to amend existing Agreements for Sale and Purchase or Auction Agreements due to settle during the Level 4 lockdown: “The parties agree that settlement is hereby deferred to the 10th working day after the Government reduces the Covid-19 Level to Level 2 or below, or to such other date as may be mutually agreed. For the sake of clarity neither party shall have any claim against the other in relation to this deferral.”

It says part of the rationale for this recommendation is that it is arguable that ‘days’ for the duration of the ‘Level 4’ status are not ‘working days’ in terms of the Agreement for Sale and Purchase. Irrespective of whether that is subsequently held to be the case, the Property Law Section says it stands by the recommendation.

The Law Society has advised that it has identified a possible workaround to address issues related to the administration of affidavits and statutory declarations in circumstances of mandatory physical distancing. Chief Executive Helen Morgan-Banda has also advised that it has been in discussions with the Ministry of Justice about whether regulatory changes could be made to allow for powers of attorney and enduring powers of attorney to be witnessed remotely, subject to appropriate safeguards.

Property settlements requiring physical movement are not essential services and are for all practical purposes unlawful, Property Law Section chair Duncan Terris says.

Land Information New Zealand says its core business will continue and it will keep providing its services. Its contact centre hours are unchanged, but LINZ says there will be some delays in getting through to its team, who are working from home.

Information relevant to business clients

For all matters, the first source of information is the Government's site Unite Against COVID-19.

Business Continuity Package

Details of the business continuity package announced on 17 March are available here.

Essential services

BusinessNZ has gathered a wide range of information on which businesses are essential services.

Financial Markets reporting entities

The Financial Markets Authority has given reporting entities (which includes issuers, banks, licensed insurers, and non-bank deposit takers) and managed investment schemes an additional two months to provide their audited financial statements.

Primary industries register

The Ministry of Primary Industry has set up a register for safe practice in the primary industry sector. MPI requires safety assurances from operators that their processes protect workers and the public by limiting interactions between staff and reducing the potential spread of COVID-19. Businesses are required to be registered by 5pm on Friday, 27 March 2020. Registration details are available here. To be registered, a business is asked 11 critical questions about how it intends to stop any spread of COVID-19.

Taxation

Inland Revenue has provided information on the various taxation issues and measures which have arisen. It says if a business is unable to pay its taxes on time due to the impact of COVID-19, "we understand, you don’t need to contact us right now. Get in touch with us when you can, and we’ll write-off any penalties and interest."

Information relevant to all clients

Citizens Advice Bureaux

CAB says it can still be contacted by freephone 0800 367 222, email and live chat. The walk in (face to face) service is unavailable.

Community Law Centres

The website of Community Law is available here. Information on availability of services may be posted.

Disputes Tribunals

Hearings will not be running until further notice. All parties who have hearings scheduled during this time will receive new Notices of Hearing from their local registries.

Earthquake Commission claim processes

The Earthquake Commission says it will continue to process claims for damage caused by natural disasters, including reopened Canterbury claims, despite its offices now being shut down.

Justice of the Peace services

The Royal Federation of NZ Justices' Associations says Justice of the Peace services have been suspended. This includes private visits to Justices and all Service desks.

Official information requests

Chief Ombudsman Peter Boshier says he will be taking extenuating circumstances into account when deciding how to deal with complaints about delays or extensions of the timeframes for responses to official information requests.

Ombudsman complaints

While the Chief Ombudsman has closed the offices in Auckland, Christchurch and Wellington, he says he will continue to accept and resolve complaints and investigations will continue. Online advice is provided on how to complain or make contact.

Privacy

Staff of the Office of the Privacy Commissioner are working remotely and will do their best to ensure the services they provide remain as uninterrupted as possible

Tenancy and rents

The Ministry of Justice says more information on Tenancy Tribunal services "will be provided shortly". The Tenancy Tribunal website is here.

Details from Tenancy Services of the rent freeze and stop on tenancy terminations are available here.

Tenancy Tribunal appeals against eviction have been listed as priority matters in the District Court.

Last updated on the 27th March 2020