New Zealand: Upcoming amendments to the High Court and District Court Rules

Last Updated: 3 September 2017
Article by Jonathan Scragg

On Friday, 1 September 2017, a number of amendments to the High Court Rules and District Court Rules come into effect. The amendments will be of interest to all civil litigation lawyers and parties involved in such disputes before the Courts.

Without notice applications

The Rules dealing with without notice applications have been overhauled. They now clarify the grounds required for an application to be made without notice, and specifically require the applicant to make all reasonable enquiries and take all reasonable steps to ensure that the documents contain all relevant material, including any defence that would be relied on by the other party.

The amended Rules will also require the applicant to file a memorandum with a without notice application, if the application is one that the respondent is likely to have contested if the application were on notice. The memorandum will need to set out:

  • the background to the matter,
  • the grounds on which the orders are sought,
  • an explanation of those grounds, and
  • all information known to the applicant that is relevant to the application, including any known grounds of opposition or defence, or any facts that would support an opposition or defence.

High Court statements of claim

Statements of claim or counterclaim issued in the High Court will need to include on their cover page the name of the relevant registry in te reo Maori as well as in English.

This change will also apply to judgments or orders in the High Court, as the Rules require them to have a cover page in the same form as a statement of claim.

Commercial panel

Rules have been added to constitute the commercial panel in the High Court and allow it to commence operating.

The commercial panel is a replacement for the old commercial list, which ended when the Senior Courts Act 2016 came into force. Certain Judges will be assigned to the commercial panel, and if a proceeding is allocated to the commercial panel it will be case managed by an allocated panel Judge through its entire life.

Protests to jurisdiction

The Rules relating to protests to jurisdiction have been clarified. They now state that if the court is satisfied that it has no jurisdiction it must dismiss the proceeding, and that if it does not dismiss the proceeding it must set aside the appearance. This change ensures that the onus is on the defendant to show that there is no jurisdiction to hear the claim.

High Court case management

The High Court has found that the vast majority of first case management conferences are being adjourned, as orders are made on the papers based on memoranda agreed by the parties. The Rules are being amended to reflect this process, so that court resources are not used inefficiently by allocating conferences that are not required.

The first step will now be a case management review (with joint or separate memoranda setting out the usual matters) where everything is dealt with on the papers. A case management conference will only be allocated if the Judge decides that one is necessary after the case management review.

Witnesses who will not provide a brief of evidence

From time to time, parties at a hearing wish to call witnesses who for various reasons have been unwilling to provide a brief of evidence. While the subpoena (or witness summons) process has always existed as a way of requiring that witness to attend court, the result has been that the other party may be unaware of the purpose of that witness's evidence.

The Rules are being amended to set out the requirements that have been established in case law, namely that a party intending to call a witness who has not given a brief must give notice to the other party and the court, setting out:

  • the name of the intended witness;
  • the steps taken to attempt to obtain a brief;
  • the reasons for the intended witness not providing a brief;
  • an explanation of the relevance of the evidence of the intended witness; and
  • details of the evidence that the intended witness is expected to give.

High Court close of pleadings date

The High Court Rules have been amended to include a default date for the close of pleadings, if no other date is fixed by the Judge. This default date is the later of 60 working days (12 weeks) before a hearing and the date on which the hearing is allocated.

Costs and disbursements

The Rules relating to costs and disbursements have been amended to allow a party to be awarded costs for legal services, or to claim disbursements for expert witness fees, even where there is a conditional fee arrangement.

Access to court documents

The Rules relating to access to court documents have been simplified and clarified. It is now easier to work out which documents may be accessed as of right, and by whom, and which documents will require a specific request. There is also more guidance provided about how Judges are to balance the different considerations when assessing those requests.

Striking out proceedings before service

The High Court Rules are being amended to allow the Registrar to refer proceedings that he or she considers to be an abuse of process to a Judge when the proceedings are filed, before returning the documents to the plaintiff for service.

If the Judge is satisfied that the proceedings are an abuse of process, he or she may strike out or stay the proceedings even before they are served, and can order that the documents not be returned to the plaintiff for service.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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