Series on the Judicature Modernisation Bill

Readers will be aware that the omnibus Judicature Modernisation Bill has established a number of separate Acts.

Seven of these Acts are relevant to civil litigation. ADLS’s Civil Litigation Committee considers that it would be timely and helpful to set out some brief summaries of and explanations about the new Acts. Over the coming weeks, these will be presented as a series in Law News.

Two of the new Acts are relatively minor in effect and need only a brief explanation – the Judicial Review Procedure Act 2016 and the Arbitration Amendment Act 2016.

The Judicial Review Procedure Act 2016 replaces, but is not intended to change, the Judicature Amendment Act 1972, Part 1 (see Judicial Review Procedure Act 2016, section 3(2)). It comes into force on 1 March 2017, however, proceedings commenced under the 1972 Act continue under that Act (see Judicial Review Procedure Act 2016, section 23).

The Arbitration Amendment Act 2016 amends the Arbitration Act 1996 to provide for the appointment of an “appointed body” to exercise powers under Schedule 1, article 11 which were previously powers of the High Court. It also provides for the High Court to exercise the powers in the event that the appointed body does not act, or there is a dispute about the process of the appointed body. These amendments come into force on 1 March 2017.

The remaining five new Acts relevant to civil litigation are more substantial and include:

• the Trans-Tasman Proceedings Amendment Act 2016, which amends the Trans-Tasman Proceedings Act 2010 (summarised below);

• the Electronic Courts and Tribunals Act 2016, which provides for the use of electronic documents in proceedings and tribunals;

• the District Court Act 2016, which deals with what is now the District Court (previously the District Courts);

• the Senior Courts Act 2016, which deals with the High Court, Court of Appeal and Supreme Court; and

• the Interest on Money Claims Act 2016, which applies to the awarding of interest in all civil proceedings.

Each of these will be discussed in turn in upcoming editions.

In this first part of the series, the ADLS Civil Litigation Committee’s EJP student representative, Jade Magrath, looks at the Trans-Tasman Proceedings Amendment Act 2016.

The Trans-Tasman Proceedings Amendment Act 2016

The Trans-Tasman Proceedings Amendment Act 2016 (which was divided from Part 6 of the Judicature Modernisation Bill) relocates those provisions that relate to trans-Tasman proceedings from the Judicature Act 1908 to the Trans-Tasman Proceedings Act 2010.

This amendment is consistent with the overall purpose of the Judicature Modernisation Bill, which is to make legislation more accessible and transparent for court users.

In its 2012 review of the Judicature Act, the Law Commission recommended that Part 1A of the Judicature Act be moved to the Trans-Tasman Proceedings Act (see Law Commission’s “Review of the Judicature Act 1908”, NZLC R126, 2012 at 37). Part 1A was entitled “Special Provisions applying to certain proceedings in the High Court and Federal Court of Australia” and had been added to the Judicature Act in 1990. These provisions pertained to matters including:

• the circumstances in which the High Court may order proceedings to be heard in Australia;

• subpoenas;

• the administration of oaths;

• contempt of the Federal Court of Australia; and

• arrangements to facilitate sittings of the New Zealand High Court in Australia and the Australian Federal Court in New Zealand.

The Trans-Tasman Proceedings Act is an Act that implements New Zealand’s obligations under the Trans-Tasman Agreement. It aims to streamline civil proceedings which contain a trans-Tasman element, as well as minimise existing impediments to enforcing certain Australian judgments and regulatory sanctions in New Zealand (Trans-Tasman Proceedings Act, section 3(1)).

It provides a more appropriate fit for the Part 1A provisions. The matters in question are not central to court arrangements (see Judicature Modernisation Bill 178-1, Explanatory note), and including them in legislation specifically enacted for trans-Tasman proceedings means that they are less likely to be overlooked by practitioners. In light of the Law Commission’s recommendations, Part 1A of the Judicature Act has now been moved to the Trans- Tasman Proceedings Act as a new Part 3. It was important that the relocated provisions remain “substantially unaltered” to avoid any inconsistency with reciprocal provisions contained in the Australian equivalent of the Trans-Tasman Proceedings Act (see “Review of the Judicature Act 1908” at 39).

However, while the Part 3 provisions are essentially identical to those contained in the old Act, the language used in them has been modernised (for example “to testify” has become “to give evidence” and “is not compellable” has become “may not be compelled”) and some provisions have been reformatted for clarity.

References to outdated Australian legislation have also been updated (Trans-Tasman Proceedings Act, section 81(a)).

The Trans-Tasman Proceedings Amendment Act will come into force on 1 March 2017.

Look out for more updates on the other new Acts in forthcoming issues of Law News as well as information about CPD activity on these topics. 

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