There are issues with access to civil justice in New Zealand — the Law Society has referred to a “justice gap” that has been “slow-burning for at least a generation”. In 2019, the Rules Committee — made up of senior judges and key stakeholders in the justice system — started looking at the problem. Following consultation, and initial proposals, the Committee has now released its report on improving access to civil justice.

The report makes 23 recommendations affecting the Disputes Tribunal, District Court and High Court:

Disputes Tribunal

• Increase the Disputes Tribunal’s jurisdiction to NZ$70,000 as of right, and NZ$100,000 by consent.
• Create a general right of appeal to the District Court for Tribunal orders between NZ$30,000 and NZ$100,000.
• No change to current rules about legal representation in the Tribunal.
• Tribunal hearings should remain confidential — but some (anonymised) decisions should be made available.
• Costs should continue to lie where they fall — but if you win you should be entitled to your filing fee.
• All Tribunal referees should be legally qualified.
• Departure from resolving disputes according to the law should only happen if that would result in substantial injustice.
• The District Court should think of ways to improve enforcement of Tribunal awards, and the enforcement fee be abolished (or subject to waiver).
• Tribunal referees be renamed ‘adjudicators — but the Tribunal’s name should not change.

District Court

• Create a separate civil division of the District Court, and appoint a Principal Civil Judge.
• The expertise of civil registries should be strengthened.
• Part-time judges should be appointed to assist with the civil workload of the Court.
• A change to the rules to assist with efficient case management, and no need to introduce inquisitorial processes in the Court.
• Consideration be given to the Tribunal conducting settlement conferences for the Court.
• Introduce pre-action protocols for debt claims.

High Court

• Introduce proportionality as a key principle.
• Witness statements to be exchanged after pleadings and before discovery.
• Initial disclosure to include adverse documents. Subsequent discovery to be ordered as necessary and proportionate for the determination of issues in the case.
• A judicial issues conference be held after service of witness statements.
• A presumption that interlocutory applications will be heard remotely, with time limits — and sometimes without a hearing.
• A presumption of one expert witness per topic per party — with experts to confer before trial.
• Core events to be established by documents at trial, with witnesses to focus on genuine issues of fact. Witness statements allowed to be taken as read.
• Practices developed during the COVID-19 pandemic — including electronic filing and remote hearing — become a standard part of court procedures.

Our view

We welcome the recommendations made by the report which, if enacted, would improve access to civil justice. In particular, the proposed reforms to High Court procedures would result in quicker and cheaper civil trials. We made a submission on the Rules Committee’s May 2021 consultation paper which was generally supportive of the reforms then proposed. As we pointed out in our submission, however, the proposals then — and now — undervalue the role that mediation has as an effective, cost-efficient tool for resolving disputes. We would have liked to see non-adversarial resolution of disputes promoted in the report’s recommendations and incorporated into the civil justice system.

We would have also liked to see the recommendations go further, including increasing the jurisdiction of the Disputes Tribunal to NZ$200k, and making service easier and more cost-effective.

Where to next?

The report has been submitted to the Attorney-General and Minister of Justice for consideration. It may be some time before any changes are enacted into law.

For more information about the report and its recommendations, please contact Hayden Wilson, Linda Clark, David Campbell, James McMillan, or Jenni Rutter.