Series on the Judicature Modernisation Bill

Over the last few issues of LawNews, the ADLS Civil Litigation Committee has been examining Acts relevant to civil litigation under the Judicature Modernisation Bill.

So far, the Trans-Tasman Proceedings Act 2016, the Electronic Courts and Tribunals Act 2016, the District Court Act 2016 and the Interest on Money Claims Act 2016 have all been considered. This week, the Committee looks at the Senior Courts Act 2016.

The Senior Courts Act 2016

The Senior Courts Act 2016 (Act) consolidates the Judicature Act 1908 and the Supreme Court Act 2003, which means there is now a single piece of legislation governing the High Court, Court of Appeal and Supreme Court. Many of the provisions in the Judicature and Supreme Court Acts are retained but the language has been updated and they follow a more coherent arrangement. Certain provisions in the Act relating to the High Court Rules (among others) came into effect on 18 October 2016. The remainder of the Act came into effect on 1 March 2017.

The Act covers the constitution and jurisdiction, practice and procedure, selection and appointment of judicial and other officers, and also claims to improve the transparency of court arrangements in a manner that is consistent with judicial independence. Important changes of which practitioners should be aware include the following:

  • The existing High Court Rules are deemed to be part of the Act but are published as the High Court Rules 2016 and treated as though they were a regular legislative instrument.
  • Section 49 of the Act expands the power of individual judges in the Court of Appeal, making significant changes to reduce what was considered to be an unnecessarily intensive call on judicial resources. For example, a single (permanent) member of the Court of Appeal can review the decision of the Registrar. The section does not apply to criminal proceedings, which are still governed by the Criminal Procedure Act 2011.
  • The establishment of a commercial panel in the High Court from which judges can be allocated to hear specific types of commercial cases.
  • Specific provisions for the restriction on commencing or continuing proceedings for vexatious litigants, which was previously dealt with solely through the inherent jurisdiction of the Court.
  • An appeal against an order or decision of the High Court made on an interlocutory application in civil proceedings requires leave of the High Court unless the order or decision effectively determines the proceeding, e.g. a strike out application or granting summary judgment.
  • A requirement for the Attorney-General to publish information explaining the process for seeking expressions of interest for the appointment of judges, and for recommending people for appointment.

It is worth noting that the Act is not a simple or short statute, comprising some 74 pages, plus amendments to the High Court Rules 2016 (8 pages), as well as updating provisions relating to access to court information, judicial information and MoJ information (see sections 173 and 174 and Schedule 2). There are changes to some definitions in the Schedule of consequential amendments to other statutes and there are also specific “Transitional Provisions” in Schedule 5.

The Committee therefore recommends that those who practise in the senior courts set aside time to scan through the contents provisions of the Act and the Schedules to it to become familiar with the Act and how it has changed practice and procedure.

The Committee would be glad to hear from readers as to their experiences of working with these Acts in practice as they bed in. Any comments, issues or concerns can be sent to the Committee Secretary at committee.secretary@adls.org.nz.

This is the final instalment in the Civil Litigation’s Judicature Modernisation series. There will also be an ADLS CPD seminar entitled “Judicature Modernisation: What’s New, What’s Not” on Tuesday 13 June 2017. Visit www.adls.org.nz/cpd for details.

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