2021 Further Consultation and Response

2021: Second Consultation Round

Further Consultation Paper

Further Consultation Paper on Improving Access to Civil Justice (PDF, 328 KB)

Submissions in response to this paper closed on 2 July 2021.

At the Rules Committee's 21 March 2021 meeting, the judicial subcommittee on improving access to civil justice reported back to the full committee with a proposed response to the submissions to the initial consultation paper in late March 2021.

The subcommittee was of the view that any meaningful response to the matters raised during the initial consultation process require proposals for reform going beyond rules-making, extending to proposals for the amendment of primary legislation.

Obviously, these are not within the Committee's power to implement and, if the Committee ultimately adopts the proposals, will form the basis of a report to the Attorney-General for consideration by government.

The subcommittee's proposals were as follows.

Disputes Tribunal

The subcommittee proposed expanding the role of the Disputes Tribunal, positioning its as the primary court for a significant proportion of civil disputes. This was intended to allow a greater number of New Zealanders to take advantage of its existing inexpensive, flexible, and apparently-successful quasi-inquisitorial approach.

This will include increasing the jurisdiction of the Disputes Tribunal to $50,000, or possibly further, and renaming the Tribunal the “Community Court” or “Small Claims Court”. If the jurisdiction was expanded beyond $50,000, the subcommittee thought, it may be necessary to increase the right of appeal from decisions of the Tribunal.

To strengthen the Tribunal in exercising its functions, should these proposals be adopted, the subcommittee proposed providing for Tribunal to appoint the investigators already used in some cases as lay-judge members of the Tribunal in appropriate disputes (though the referee would remain the sole adjudicator). The subcommittee also proposed making various collateral amendments to the powers and procedures of the Tribunal consistent with its positioning as a primary civil court, including empowering the Tribunal to enforce its own orders.

District Court

The subcommittee was of the view that the District Court Rules 2014 already, in theory, provide a flexible procedure for the expeditious but just resolution of civil disputes. However, the Court currently, in the subcommittee's view, lacks the institutional ability to make use of that potential, and the profession lacks confidence in the Court as a forum for the resolution of civil disputes.

The subcommittee therefore proposed the revitalisation of the District Court's civil jurisdiction as the primary response at this level, rather than larger scale rules changes. The subcommittee proposed creating the position of Principal Civil List Judge. The Principal List Judge will be responsible for improving or restoring the expertise of the Court's civil registry and working with the Ministry of Justice to providing members of the community with timely and accessible information about court procedures and their rights.

The subcommittee also proposed introducing part-time Deputy Judges/Recorders, who will be appointed from among the senior ranks of the profession on a case-by-case or short-term basis, using their experience to supplement the civil expertise of the existing District Court Judges with civil warrants. The subcommittee identified this as allowing for a more flexible judicial resource that can be deployed on a case-by-case basis as required to in response to changing demands for judicial time.

The subcommittee also proposed minor revisions to the rules of court for the District Court.

In particular, the Committee proposed New Zealand adopting at least one of the pre-action protocols for civil proceedings currently used in the United Kingdom, in particular the requirement for a letter in advance of litigation to be served by creditors intending to bring debt collection proceedings in the District Court. This because the subcommittee was concerned that the Community Law Centres reported in their submissions to the previous consultation process that many people facing such claims do not seek their advice until after judgment has already been entered, not understanding the difficulties that arise from waiting until that stage. The subcommittee through that introducing pre-action protocols may assist in improving access to justice and redressing inequality of arms in such proceedings by requiring steps to be taken before proceedings are filed.

The subcommittee also recommended the Committee consider potentially allowing a more flexible process to be used for determining the substantive in some cases. This would involve elements of the more inquisitorial processes of the kind followed by the Disputes Tribunal. In particular, the Rules might allow judges to direct that the proceeding be set down for determination on the basis of the initial disclosure alone, and without any further interlocutories, given what is in issue as revealed by the first judicial conference. The Rules might also provide for the substantive determination of disputes using an ‘iterative’ process whereby the issues in dispute are resolved at successive hearings.

High Court

The subcommittee proposed significantly streamlining the default procedure in High Court civil procedures by introducing a new framework. This would involve:

disclosure rules being introduced in place of the discovery regime;
an early comprehensive engagement with Judges at an issues conference;
interlocutories presumptively being determined on the papers;
greater emphasis being placed on the documentary record to establish facts, with the documents admissible as to the truth of their content;
evidence being given primarily by way of affidavit, supplemented by oral evidence only in areas of factual contest; and
greater controls being imposed on expert evidence.

The subcommittee also recommended, given the need for a change in litigation culture identified by submitters to the initial consultation process, recognising proportionality as an objective of the High Court Rules 2016, to signal the need for a change in approach to parties, counsel, and judges.

The Committee considered the subcommittee's report at its meeting of 23 March 2021.

The Committee was largely agreed with the recommendations set out in the report. There were a range of views around the table as to whether the proposals in the subcomittee's report represent the best possible means of addressing the concerns report by submitters to the initial consultation process.

However, the Committee was agreed the proposals should serve as the foundation for further consultation.

Further consultation was necessary because the subcommittee's proposals are substantially different to those set out in the initial consultation document. Further consultation also provided an opportunity to gather further evidence and a wider range of viewpoints, and provide the profession and wider community with an opportunity to shape the radical reforms envisaged by the subcommittee.

Response to further consultation

Submissions on the Committee's second consultation paper closed on 2 July 2021. The Committee received fifty-nine submissions from a wide range of practitioners, academics, community organisations, and other court users. These submissions addressed the proposed changes to procedure in the Disputes Tribunal, District Court and High Court, and contained valuable additional suggestions for reducing barriers to access to civil justice.

The Committee is very grateful for the time and effort which went into each submission.

Ms Kate Davenport QC and the Clerk to the Committee prepared an executive summary of the submissions which were received before the submission deadline. This summary will be used by the Committee in its substantive discussion of the submissions in March 2022.

The individual submissions received in response to the second round of the consultation are available here.