Judicature Modernisation Bill 2013

The Judicature Modernisation Bill of 2013 is presently before the Justice and Electoral select committee of Parliament. The select committee’s report is due on 5 June 2014. While an essential feature of the Bill is to unite, in a single Act, the provisions of the Judicature Act 1908, the Supreme Court Act 2004 and the District Courts Act 1947, it is proposed the new Act will have a number of practical implications for the conduct of civil litigation. What follows is a brief summary of some (not necessarily all) of the more interesting amendments proposed by the Bill. 

The Bill proposes a substantial change to the means of reviewing or appealing an interlocutory decision of the High Court. First of all, the procedure for the review of an interlocutory decision of an Associate Judge made in chambers is to be abolished. While that procedure was a useful one, there seems to have been some opinion that it created anomalies and it does appear that the distinction between a decision made in chambers and one made in Court was not always fully appreciated.

Of more direct interest, the Bill presently stipulates that all appeals of interlocutory decisions of the High Court to the Court of Appeal must be with leave only. As is presently the case, that leave may be obtained, in the first instance, from the High Court or from the Court of Appeal itself. It seems safe to assume that the present proposal will not, however, survive the select committee process without amendment. The imposition of the leave requirement on all interlocutory decisions means there are important matters, such as strike outs and decisions on security for costs (not to mention summary judgments, which may well fall within the definition of “interlocutory order”), that may no longer be appealable as of right if the Bill proceeds in its present form.

While probably of less practical relevance, the right to require trial before a Judge sitting with a jury in civil cases will be restricted to proceedings for defamation, false imprisonment and malicious prosecution. At present it is possible to require trial by judge and jury in civil cases where the amount in issue is more than $3,000. 

The existing provisions for the commercial list are not carried through in the Bill. Instead, the Governor-General will be empowered, in collaboration with the Chief Justice and the Chief High Court Judge, to establish panels of High Court Judges. If passed in its present form, the new Act will start the ball rolling by the establishment of the commercial panel of the High Court. The types of cases that the commercial panel will hear will be determined after commencement of the Act but it does seem likely that the kinds of proceedings suitable for referral to the commercial panel will not differ, terribly, from those presently eligible for entry on the existing commercial list.

The right to apply to the Court for an order for the arrest of an absconding debtor is carried through from section 55 of the Judicature Act 1908. The procedure is refreshed and, interestingly, the test appears to be a lower one in that the Bill (as drafted) does not require the applicant to also show that the absence of the defendant will materially prejudice the prosecution of the proceeding.

The Bill proposes that leave applications, in the Court of Appeal, may be dealt with by two Court of Appeal Judges (one of whom might be a High Court Judge seconded to the Court of Appeal or an acting Court of Appeal Judge) and introduces a procedure for the review of decisions made by a single Court of Appeal Judge. 

Perhaps unsurprisingly, there is greater provision for vexatious litigants. It is proposed the new Act will provide for certain orders restricting persons from commencing or continuing civil proceedings that may have limited, extended or general effect. The Bill proposes that the new Act will identify what effect the different orders have and the grounds and procedure for applying for them. For example, a limited order might restrain a party from continuing or commencing civil proceedings on a particular matter in a court or tribunal whereas a general order might restrain a party from continuing or commencing civil proceedings in a court or tribunal altogether.
The touchstone, in each case, will be the bringing of proceedings that the court considers to have been “totally without merit”. It is proposed that only the Attorney-General will be able to apply for a general order. 

Constitutionally, the most significant change in the Act will be the amalgamation of the existing District Courts into a single District Court of New Zealand. It is understood that the present arrangement, where there are a number of separately constituted District Courts throughout the country, has been the cause of some administrative difficulty. Following on from the establishment of a single District Court of New Zealand, the next significant change will be that the new, single, District Court will have an increased jurisdiction in civil proceedings of up to $350,000. Consequently, the point at which a defendant may have a proceeding transferred to the High Court, as of right, will be increased from $50,000 to $90,000.

The Judicature Amendment Act 1972 will no longer stand alone and the statutory provisions for judicial review proceedings will be included in the proposed Act. The language will be modified to reflect modern practice.

There will also be provisions for interest on money claims applicable to all of the courts covered by the Act. Importantly, rather than prescribe a “stand alone” interest rate (as is presently the case), the applicable interest rate to money claims will be an annual rate equivalent to the six month retail deposit rate published, from time to time, by the Reserve Bank plus 0.15%. The premium amount of 0.15% may be adjusted by regulation (and will be known as “the prescribed premium”). What could be very helpful (or not, depending on how well it is maintained) will be an “internet site calculator” that the Bill proposes, which will be established and maintained by the Ministry of Justice for the purposes of interest on money claims. 

The Bill contains a number of additional points designed to not only modernise court practice but also to make them more transparent and accountable. For example, there are provisions requiring the publication of protocols regarding judicial appointments, recusal and the delivery of reserved judgments. There are provisions for the establishment of electronic courts and tribunals and for the appointment of acting judges. In most respects the objectives of the Bill seem commendable and the drafting concise enough to achieve them. Presumably most of the Bill will survive the select committee stage and enjoy cross-party support. It will, however, be interesting to see the final version of the provisions for appeals of interlocutory decisions to the Court of Appeal. 

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