The Rules Committee is the statutory body responsible for procedural rules in the Supreme Court, the Court of Appeal, the High Court, and the District Court. The Committee commenced a review of these rules in late-2019, with the aim of improving access to civil justice.
The Committee has now released its Improving Access to Civil Justice report, which is the culmination of its three-year review. The Report highlights the importance of access to civil justice, noting that:
At the highest level, access to civil justice concerns the ability of individuals to have their civil rights vindicated, and breaches of those rights compensated, in a procedurally fair and transparent manner by neutral adjudicators in accordance with law. This is a fundamental right.
Inequality of access to civil justice has the potential to erode individual dignity, insofar as it risks some individuals being able to wrongfully abrogate the rights of others with practical impunity, contrary to law, in a manner therefore corrosive of rule by law.
The Report recognises that barriers to access to justice stem from deeply entrenched problems which extend beyond issues with the rules of court. The Report concludes that a combination of legislative initiatives, structural changes, and rules amendments are needed to fully eliminate these barriers.
On this basis, the Committee has now recommended various policy and legislative changes, as well as rule changes, to improve access to civil justice. This includes the following key policy and legislative changes to improve access to civil justice in the Disputes Tribunal and the District Court:
- Increasing the jurisdictional threshold of the Disputes Tribunal from $30,000 to $70,000 as of right, and to $100,000 with the consent of the parties, and providing for a general right of appeal to the District Court from orders between $30,000 and $100,000;
- Allowing successful parties to recover filing fees in the Disputes Tribunal, and empowering the Tribunal to waive filing fees;
- Clarifying that the Disputes Tribunal need not give effect to strict legal rights or obligations or to legal forms or technicalities, but only where that would result in a substantial injustice;
- Improving the institutional capabilities of the civil jurisdiction of the District Court by appointing a Principal Civil District Court Judge to oversee the strengthening of the expertise of the court’s civil registry; and
- Allowing for the appointment of part-time deputy judges to exercise the civil jurisdiction of the District Court (similar to the role of Recorders in England and Wales).
The Committee has also recommended various rule changes to create a revised structure for general civil proceedings in the High Court. The key features of this revised structure are:
- Factual “will say” or witness statements will replace briefs of evidence, and unless ordered otherwise, parties’ statements are to be served before discovery orders are made;
- Judicial issues conferences will generally occur after the will say/witness statements have been served (rather than at the outset), and significant judicial engagement will be expected in the identification of the issues and what is required to fairly resolve the proceeding; and
- Much greater emphasis is to be placed on the documentary record for establishing the facts, and documents included in the agreed bundle should presumptively be admissible to establish those facts, without the need for witnesses to traverse them; and
- Evidence from the witnesses should be limited to issues of fact, unless it is expert evidence, to eliminate the making of submissions through the evidence.
These proposals, which draw on reforms adopted overseas, will substantially change the procedural approach to civil litigation in the High Court. Given their significance, the Committee has now welcomed further feedback on the recommendations, and will take any feedback into account when implementing the recommendations.
Submissions on the recommendations should be made by Friday 24 February 2023, by emailing RulesCommittee@justice.govt.nz.
Read more about the Rules Committee
Read the Committee’s Improving Access to Civil Justice report