New Zealand Law Society - Parliament makes major changes to NZ court system

Parliament makes major changes to NZ court system

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Parliament has given a third reading to 23 bills which were introduced as the Judicature Modernisation Bill. These make important changes to New Zealand's court system.

Justice Minister Amy Adams says New Zealand has a strong and independent justice system that serves it well "but its legislation needs to be more accessible and better supported by modern technology".

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"The changes we're making are part of the Government's commitment to providing courts that are modern and accessible for New Zealanders."

The legislation includes five new Acts and 18 amendment Acts. Much of the legislation will come into force on 1 March 2017.

One of the most important changes is creation of a single District Court of New Zealand from the 58 District Courts, from 1 March 2017. The monetary threshold of the District Court is also increased from $200,000 to $350,000 which will enable it to hear higher value civil disputes.

The five new Acts which have emerged are as follows. The Royal assent was granted on 17 October 2016, meaning some of the provisions came into force on 18 October 2016.

Senior Courts Act 2016

This will come into force on 1 March 2017, with some exceptions. One major provision which came into effect on 18 October 2016, the day after the Royal assent, is section 147 which deems the High Court Rules to be part of the new Act. At present the High Court Rules are Schedule 2 of the Judicature Act 1908. While the section says the High Court Rules do not need to be published as part of the Senior Court Act, provision for their publication is made by section 151 of the new Act. The Parliamentary Counsel Office has provided further information on how this will be managed.

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The Senior Courts Act consolidates the Judicature Act 1908 and the Supreme Court Act 2003, meaning there is now a single piece of  legislation governing the High Court, Court of Appeal and Supreme Court. A statement in section 3 ("Purposes") says "nothing in this Act affects New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament".

The Act covers the constitution and jurisdiction, practice and procedure, selection and appointment of judicial and other officers, and also says it improves the transparency of court arrangements in a manner consistent with judicial independence.

Among the changes introduced is section 49, which expands the power of individual judges in the Court of Appeal. Section 62 also introduces a new provision, permitting the Court of Appeal to give no reasons for granting or refusing leave to appeal. It must, however, give reasons for refusing leave to appeal. The New Zealand Law Society questioned both of these changes in its submission on the Judicature Modernisation Bill.

The new legislation (in section 93) requires the Attorney-General to publish information explaining the process for judicial appointments.

Two provisions which were deleted from the legislation on its way through Parliament were a clause which allowed someone other than a barrister or solicitor to support a self-represented litigant in court, and a clause which continued the confusing rules about service of process on Sundays.

District Court Act 2016

This will come into force on 1 March 2017, with some exceptions which cover access to court and judicial information (in force the day after Royal assent, on 18 October 2016). The District Courts Act 1947 will be repealed on 1 January 2018.

The legislation reconstitutes the District Courts as a single court, with divisions for a Family Court, a Youth Court, and a Disputes Tribunal. Section 9 states that the general division will exercise the ordinary civil and criminal jurisdiction, including common law and equitable jurisdiction and admiralty jurisdiction. It provides for the constitution and jurisdiction of the Court, its practice and procedure, and selection and appointment of its judicial officers.

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Section 12 states that the maximum number of judges who can be appointed is 160 (up from 156 in the bill as introduced), with a formula for calculating the impact of part-time appointments. Section 31 continues the appointment of acting Judges. The Law Society submission recommended the need for clarity on the relationship between the two sections, but this was not adopted.

The District Court has jurisdiction in relation to criminal proceedings conferred by the Criminal Procedure Act 2011 and any other enactment.

Section 74 increases the general civil jurisdiction to a proceeding in which the amount claimed or the value of the property in dispute does not exceed $350,000. This limit may be for the balance of an amount owing after a set-off of any claim by the defendant that is admitted by the claimant.

Judicial Review Procedure Act 2016

This will come into force on 1 March 2017. The legislation re-enacts Part 1 of the Judicature Amendment Act 1972, which sets out procedural provisions for judicial review. Section 3(2) states that the reorganisation of those provisions and the changes made to their style and language "are not intended to alter the interpretation or effect of those provisions as they appeared in the Judicature Amendment Act 1972". The 1972 Act will be repealed on 1 March 2017.

Section 8 sets out the requirements for commencing an application for judicial review. A recommendation from the New Zealand Law Society that the requirement in section 9(2)(b) of the Judicature Amendment Act 1972 to state the relief sought be retained was not accepted.

Interest on Money Claims Act 2016

This will come into force on 1 January 2018. The legislation brings about a single statutory system for the award of interest on money claims. The New Zealand Law Society has welcomed this, saying it is likely to reduce costs and provide greater certainty for litigants and a more just outcome in a wide range of litigation.

Clause 445 says the primary purpose of the Act is to provide for the award of interest as compensation for a delay in the payment of debts, damages, and other money claims in respect of which civil proceedings are commenced. 

A new clause 445A was added while the bill moved through Parliament to state that the Act has "the additional purpose of providing standard provisions for calculating interest on amounts of money payable under certain enactments, using the internet site calculator." Further details of the internet site calculator are provided in section 453 and in a schedule to the Act. The calculator will be the responsibility of the government department responsible for administering the Act.

Clause 460 states that a court may not award interest under the Act on costs awarded to a party for a period before the date when the costs are "awarded". The New Zealand Law Society submission noted that it would not be clear whether this meant the Court of Appeal's interpretation of interest accrual on costs in Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2013] 2 NZLR 499 at [20] would continue to apply. A recommended change to provide clarity was not accepted.

Electronic Courts and Tribunals Act 2016

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This will come into force on 1 March 2017. The stated purpose of the Act is to facilitate the use of permitted documents (defined as "a document, including its associated process, in electronic form that is made by, or for use in, a court or tribunal") in, or with respect to, the proceedings of courts and tribunals. The Act also allows references to documents in existing legislation relating to the processes of courts and tribunals to be interpreted as including permitted documents, and to permit the filing of permitted documents at any specified place.

As introduced, the bill gave a different test for determining when a requirement is met by information in a permitted document from the language used in the Electronic Transactions Act 2002. However, this has been changed and the original test ("is readily accessible and usable") has been changed to conform with the 2002 Act ("is readily accessible so as to be usable").

Amending legislation

As well as the five new Acts, there are 18 amendment Acts, as follows. A link to the latest available version is given.

Legislation Most in force
Arbitration Amendment Act 2016 1 March 2017
Bills of Exchange Amendment Act 2016 1 March 2017
Building Societies Amendment Act 2016 1 March 2017
Children, Young Persons, and Their Families Amendment Act 2016 1 March 2017
Companies Amendment Act (No 2) 2016 1 March 2017
Contractual Remedies Amendment Act 2016 1 March 2017
Copyright Amendment Act (No 2) 2016 1 January 2018
Courts (Remote Participation) Amendment Act 2016 1 March 2017
Criminal Procedure Amendment Act 2016 1 March 2017
Employment Relations Amendment Act (No 4) 2016 1 March 2017
Family Courts Amendment Act 2016 1 March 2017
Insolvency Amendment Act 2016 1 March 2017
Local Government (Rating) Amendment Act 2016 1 March 2017
Property Law Amendment Act 2016 1 March 2017
Remuneration Authority Amendment Act (No 2) 2016 1 March 2017
Resource Management Amendment Act 2016 1 March 2017
Te Ture Whenua Māori Amendment Act 2016 1 March 2017
Trans-Tasman Proceedings Amendment Act 2016 1 March 2017