New Zealand Law Society - NZ Bar Association calls for intervention in District Court judicial resourcing

NZ Bar Association calls for intervention in District Court judicial resourcing

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District Court resourcing has reached a critical point where immediate intervention by the Government is needed, New Zealand Bar Association President Clive Elliott QC says.

Mr Elliott has responded to a column written by the Chief District Court Judge, Jan-Marie Doogue, in which the Judge advised that there would be a redeployment in judicial resource from the criminal jurisdiction to the Family Court, to meet a backlog in that court.

Previous changes in legislation which restricted who can serve as an acting judge have created an untenable situation for the court.

Serious backlog

A serious backlog has arisen in the Family Court, one of the areas of pressure, where there are around 8000 Care of Children Act cases waiting to be heard. Mr Elliott says this is particularly unacceptable.

“The situation in the Family Court is one example. It is clearly serious when the welfare of so many children is likely to be affected by these delays. The reality is that the only way the courts can manage, is by pushing further delays onto litigants,” he says.

Before the passage of the District Court Act 2016, although there was cap on the number of permanent judges who could be appointed, lawyers as well as retired judges could be appointed as acting judges.

The 2016 Act now restricts appointment of acting judges to those who are former judges of the District Court and are under 75 years old so there is a much smaller pool of people who can be appointed as acting judges, Mr Elliott says.

Real term fall in number of judges

In real terms, there has been a fall in the total number of judges.

Clive Elliott says the current situation is an approaching crisis which has resulted from this effective decrease in the judiciary sitting in the District Court, together with increased complexity and seriousness in criminal cases, and a considerable rise in the number of without-notice applications and defended applications in the Family Court.

“Those who come to our courts, either voluntarily or because of involvement in the criminal justice system, are entitled as of right to prompt justice. There is an old truism that “justice delayed is justice denied”. This is particularly true of those who fall within the family and criminal jurisdictions. These are areas that need to be dealt with promptly for both individuals and society as a whole, so that people can resume their lives and move forward.

Mr Elliott says that while the court has worked hard to manage the situation by exploring innovations and introducing technology to reduce timeframes for cases, this will not by itself solve the problem of a stretched judiciary.

He says the strain on the judiciary has been considerable and that the country cannot afford to lose judges who have trained for many years to sit on the Bench. “It is important to attract talented individuals to serve as members of the judiciary. This becomes less likely in an under resourced system.”