The New Zealand Law Society says it is concerned about the potential adverse effects of changes proposed by the Rules Committee for striking out statements of claim before service.
The Committee's paper Consultation on Striking out Statements of Claim before Service proposes a new rule to specify a procedure for a statement of claim which appears to be frivolous, vexatious or an abuse of process to be referred to a Judge for consideration before it is served on the other party.
In a submission on the paper, the Law Society says it appreciates the difficulties that can be presented by statements of claim of the type described.
However, the potential adverse effects of the proposed amendments, and the potential implications for access to justice are concerning.
In particular, the Law Society says the proposal may:
- impose a responsibility on registrars which they are not equipped to carry out;
- deny plaintiffs the opportunity to be heard, and result in potentially meritorious claims being struck out; and
- create greater difficulties at the appellate level than it resolves at first instance.
The Law Society says whether a pleading meets the criteria in rule 15.1(1) is a matter of legal judgment, the initial assessment of which should not rest with a registrar.
It is also concerned at the lack of opportunity to present a case and does not consider there is a good reason to exclude the operation of rule 7.43(3).
"It is an extreme step to deny a claimant the opportunity to be heard at all in these circumstances," it says.
"There is a real risk that a potentially meritorious but novel or inelegantly expressed statement of claim may be rejected as a result of the proposed rule change, thus unfairly denying a prospective claimant access to justice.
"There could also be irreversible consequences where limitation periods apply. A litigant whose claim had been struck out (without any opportunity to be heard) might not be able to recommence proceedings within the limitation period, and the court might be unaware of such consequences."
The Law Society also notes that it is unclear how the proposed appeal procedure would operate in practice, with any appeal to the Court of Appeal without a reasoned decision from the High Court representing a departure from New Zealand's adversarial court system.