Civil justice

Contents

Civil cases are non-criminal proceedings that focus on enforcing people’s rights.

New Zealanders are most likely to interact with the courts in a civil capacity—for instance to settle a dispute between neighbours or with an employer, resolve a debt or insolvency issue or apply for probate. Civil cases are typically brought by private individuals, businesses or companies, but may include proceedings brought by or against central and local government regulatory agencies.

Many courts in New Zealand exercise a civil jurisdiction. The courts in this section are all civil courts, or courts with a civil jurisdiction. In addition, the appellate courts—the Supreme Court, Court of Appeal and High Court—hear appeals of civil matters: see “Appellate Courts” for more.

There are recognised barriers to people being able to access civil justice in New Zealand, including cost, and understanding how to navigate the system. These barriers, and initiatives underway to understand and address them, are described in “Timely and Accessible Justice”.

High Court | Te Kōti Matua

The High Court has unlimited jurisdiction for civil claims and hears cases that are not within the exclusive jurisdiction of other courts. The judges of the High Court (generally 40 in number) hear a wide variety of cases, including high-value and complex commercial disputes, property disputes, significant regulatory proceedings, defamation claims, intellectual property disputes, disputes arising out of family trusts and wills, claims by the Commissioner of Police in relation to the alleged proceeds of crime, judicial review proceedings, and appeals from other courts and tribunals. The Court also hears urgent applications for interim injunctions and asset freezing orders.

Trends in the civil jurisdiction for this year included the return to “normal" levels for judicial review hearings following a noticeable spike in 2020 and 2021 (a result in part of pandemic- related applications). The number of new insolvency-related applications continued to rise in 2023, up 25 percent from 2022.[36] The seven Associate Judges who sit in the High Court manage, as a key part of their work, bankruptcy and corporate insolvency applications.

Civil trials can be complex, requiring considerable hearing time—up to several months for some proceedings. Careful management is required to ensure that cases proceed efficiently, and this year a number of initiatives were introduced that will see more cases assigned to judges for case management. One such example is in place in the Auckland High Court, where a new early identification system has been introduced to identify cases that are amenable to early settlement, and complex cases that would benefit from close judicial case management.

Civil decisions are very often reserved, which means that the judge issues their decision after the hearing has concluded. The High Court has set judgment delivery expectations in which 90 percent of judgments are to be delivered within three months of the conclusion of the hearing. In 2023, the High Court delivered approximately 2000 reserved civil judgments, 76.3 percent of which were delivered within one month of the hearing, and 91.4 percent of which were delivered within three months of the hearing.[37]

Further details of the work of the High Court are available in the High Court’s Annual Report 2023.

Marine and Coastal Area (Takutai Moana) Act hearings in the High Court
The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) replaced the Foreshore and Seabed Act 2004. Hearings under the Act relate to the recognition of Māori customary rights in the foreshore and seabed arising from exclusive use in occupancy of the relevant part of the Takutai Moana since 1840.

In 2023, the High Court continued to make progress towards hearing the almost 200 outstanding applications for recognition orders under the Act. Hearings are conducted in accordance with tikanga with the involvement of Pūkenga (experts). Most claims under the Act involve cross-applications by over- lapping claimant groups. The overlapping nature of these applications means that they are most efficiently heard in regional groupings. The need to hear multiple overlapping applications simultaneously means that the hearings required can often be lengthy—in some cases involving months of hearing time—and require significant High Court judicial and operational resources.

The area with the greatest number and highest density of claims is Te Tai Tokerau/Tamaki Makaurau. With the significant co-operation of the applicant groups, substantial progress has been made in identifying appropriate groups of claims to be heard together and making timetable orders towards hearing. Several major hearings for this area have been timetabled to commence in 2024 and 2025.

These hearings have presented many technical challenges. The Court was assisted by the Surveyor-General publishing a practice note in July on mapping guidelines. This will ensure consistent mapping of those areas for which recognition orders are granted.

In October, the Chief High Court Judge and the Chief Judge of the Māori Land Court agreed a protocol by which a case can be stated to the Māori Appellate Court, seeking an opinion when an application under the Act raises a question of tikanga Māori. The referral is to be made in accordance with s 61 of Te Ture Whenua Māori Act 1993. The opinion of the Māori Appellate Court will be binding on the High Court.

No referrals have yet been made, but judges assigned to preside over forthcoming claims are being encouraged to consider potential referrals with counsel as soon as reasonably practicable. It is hoped that the referral process will reduce the length of some hearings under the Act.

District Court | Te Kōti-Ā-Rohe

The District Court has jurisdiction to hear civil claims up to a value of $350,000 that are not within the exclusive jurisdiction of other courts. It also hears appeals from some tribunals. Civil cases coming to the District Court increased in number, with debt collection cases prominent among the new work.

Examples of common claims in the District Court include contractual disputes (where one party has not performed their obligations under an agreement), negligence (such as where services have not been provided with reasonable skill) and restraining orders (where a person is seeking an order to prevent harassment).

Specialist courts

Several courts have specialist jurisdictions. Their work is explained in brief below, along with an update of significant happenings of 2023.

The Family Court | Te Kōti Whānau
The Family Court was established in 1981 as a jurisdiction for matters such as the care of children, care and protection, relationship property, mental health, family violence, substance addiction and treatment, adoption, gender registration and surrogacy. The Family Court receives and deals with a significant number of applications, with more than 60,000 filed each year. There are 70 permanent and seven acting judges warranted to sit in the Family Court.

Timely and effective family justice processes

The Family Court has an extensive work programme spanning operational improvements, legislative reforms and policy development aimed at meeting the needs of participants in and out of court and delivering more timely and effective family justice processes.

Legislative change in 2023 placed an increased emphasis on the participation of children and young people. The Family Court (Supporting the Children in Court) Legislation Act 2021 which came into force in August, amended the Care of Children Act 2004 and the Family Dispute Resolution Act 2013 so that greater emphasis is placed on a child’s right to understand and be involved in proceedings and decisions that affect them. The Ministry of Justice received funding to support family dispute resolution providers to comply with the legislative change and enable the development of best practice guidance to support and protect tamariki.

Implementing the District Court’s vision of Te Ao Mārama was a priority in the Family Court in 2023, with the primary focus on care and protection.

Te Au Reka, the new digital case and court management system, will be introduced into the Family Court first. Work on the first phase progressed in 2023 with the involvement of several Family Court judges. See "Beyond a paper-based system: Te Au Reka".

Family Court Associates and Kaiārahi

The new Family Court Associate role was established in 2023. Family Court Associates are judicial officers who will make decisions at the early stages of proceedings and interlocutory hearings. In addition, they will be able to exercise all the powers of a court registrar.

Their appointment will provide much needed additional resource for an overloaded court.

The first six Family Court Associates will join the bench in 2024. The relevant legislation, the Family Court (Family Court Associates) Legislation Act 2023, was passed in June and amendments were made to the Family Court rules to accommodate the new judicial officer role.

There are now 51 Kaiārahi, or Family Court navigators, in courtrooms across the country. Kaiārahi are a link between the community and the Family Court, providing information and support to parents, caregivers and whānau on how to navigate the court system or access out- of-court services. Kaiārahi are officers of the court, and have developed relationships with justice agencies, the community and iwi.

Family Violence Operating Model

Much of the work before the Family Court is concerned in some way with family and sexual violence. A project trialling a Family Violence Operating Model began in 2023 in the Christchurch Family Court. The project focuses on increasing in-court safety for participants, mode of evidence, use of plain language, and improving information- sharing between Family and Criminal Courts.

Family Court Statistics

Judicial education

The nature of the cases before the Family Court means its judges need to keep up with evolving academic understanding of human interaction, including the dynamics of family and sexual violence and the impact of abuse on behaviour and memory. Ensuring that Family Court judges’ education is tailored to the demands of their work has been a focus of 2023.

Employment Court | Te Kōti Take Mahi
The Employment Court hears and determines cases relating to employment disputes. These include challenges to determinations of the Employment Relations Authority, questions of interpretation of law, and disputes over strikes and lockouts.

The Employment Court’s caseload has returned to pre-COVID-19 levels. Challenges (appeals) continue to make up the bulk of the court’s workload.

In 2023, registry functions were centralised to support consistency of approach, efficient file management and enhanced support for litigants engaging with the Court. A technical specialist role was created to work with case managers and a judicial support manager position has been established to provide additional support to the Chief Judge, and to oversee and implement a number of initiatives aimed at supporting the operations of the Court, including streamlining procedures.

In October, after consultation with the judges of the Employment Court and the Chief Justice, Chief Judge Christina Inglis published refreshed guidelines for determining issues about potential conflicts of interest and recusals.[38]

The Employment Court’s project on diversity and inclusion in the courts builds on the work of Te Awa Tuia Tangata and Tomo Mai committees. In 2023, the Court translated its Practice Directions into te reo Māori, started— in conjunction with Te Kura Kaiwhakawā—to prepare resources to support judges’ use of te reo Māori in court, and updated the court’s webpage to include sections that clearly explain the court environment and support parties, witnesses, representatives and members of the public to understand court processes and what to expect when coming to the Employment Court.

The Employment Court has set judgment delivery expectations in which 90 percent of judgments are to be delivered within three months of the conclusion of the hearing. In 2023, the Employment Court delivered 237 judgments (71 percent) within one month of the conclusion of the hearing and 93 percent within three months.

Employment Court statistics

Te Kooti Whenua Māori | Māori Land Court
The Māori Land Court is New Zealand’s longest established specialist court. It is the only indigenous land court in the world. The court’s key purpose is to promote the retention of Māori land in Māori hands, and to support landowners to use, occupy and develop their whenua for the benefit of all landowners, and their whānau and hapū. The Court is responsible for the accurate documentation of the succession and management of Māori land.

Deputy Chief Judge Caren Fox was appointed as the new Chief Judge of the Court in July, following the statutory retirement of Chief Judge Isaac on 30 April after 29 years serving as a judge of the Māori Land Court. Chief Judge Fox was appointed Chair of the Waitangi Tribunal later in the year.

Notable in the Court’s work programme this year was its response to applications relating to land affected by the extreme weather events of January. Following the significant damage caused by Cyclones Gabrielle and Hale in the Tairāwhiti, Tākitimu and Taitokerau regions, areas with high proportions of Māori land, Chief Judge Fox and other judges based in these regions engaged with Te Puni Kōkiri officials to ensure that the Māori Land Court can prioritise any applications relating to affected land to assist Māori landowners in the recovery process.

The Court launched a new online platform in May. Pātaka Whenua was developed alongside the statutory reforms to the Court’s legislation passed in 2020. It is designed to serve both as a portal through which Māori landowners can file applications with the Court and find information about their Māori land and the court record. It is also a case management system in which court staff and judges can progress court applications electronically.

Since its launch, the Court has identified ways to improve Pātaka Whenua to ensure the platform is effective and user-friendly for Māori landowners. The Court’s judiciary and administration are working together to progress these enhancements.

Māori Land Court statistics are available in the Court's Annual Report.

Environment Court | Te Kōti Taiao
Most of the Environment Court’s work involves hearing appeals about issues that arise under the Resource Management Act 1991 (RMA), such as appeals about the contents of regional and district plans and appeals arising out of applications for resource consents. Two bills—the Natural and Built Environment Act 2023 and the Spatial Planning Act 2023—came into force in August but were then repealed in December. The RMA remains in force.

The Environment Court ended the calendar year with no backlog, through the successful use of remote hearing procedures and alternative dispute resolution through court- assisted mediation, which is popular with parties and has high rates of success.

For prosecutions under the Resource Management Act 1991, some of which are heard by jury trial held in the District Court, there continue to be delays.

The Resource Management Act contains several environmental concepts drawn from Te Ao Māori. Māori Land Court judges bring expertise in those subjects to Environment Court hearings. Alternate Judges from the District Court also support the Environment Court.

In August, the Court held its annual conference of its judges and commissioners in Kaikoura, Canterbury. Members of the Court have continued to lecture and present material about the court and how best to present evidence to the court to students and practitioners at universities and practitioner conferences.

Environment Court statistics

Wāhine Māori appointments in the specialist courts
Chief Judge Caren Fox (Ngāti Porou, Rongowhakaata with ties to Te Whānau-a- Apanui) was sworn in as the 17th Chief Judge of the Māori Land Court in August at a special sitting of the Court held as a part of Te Hunga Rōia Māori Hui-ā-Tau, the annual conference of the Māori Law Society. Chief Judge Fox is the first wāhine Māori to hold the role.

Chief Judge Fox was appointed as Māori Land Court Judge in 2000, and as Deputy Chief Judge in 2010. She was formerly the resident judge for the Tairāwhiti District of the Māori Land Court, hearing cases in Gisborne.

In April, the first Māori Environment Court Judge, Judge Sheena Tepania (Ngāti Kahu ki Whangaroa, Ngāti Kuri, Te Aupōuri, Te Rarawa, Ngāpuhi), was sworn in at Waihapa Marae in Te Tai Tokerau.

In September, Judge Merepaia King (Ngāti Māhanga, Ngāti Te Wehi – Tainui) became the Employment Court’s first Māori judge, and 5th female judge, in the 129 years of the Court’s existence. It was also the first time an Employment Court judge had been sworn in on a marae, with the ceremony being held at Te Papa-o-Rotu Marae in Whatawhata.

Coroners Court | Te Kōti Kaitirotiro Matewhawhati
The Coroners Court is charged with conducting inquiries into deaths that are sudden, unexplained, violent, appear to be self-inflicted or that happen in official custody or care. The coroner will determine findings of fact, and consider whether anything could be done differently to prevent similar deaths.

Several complex coronial inquiries were before the Coroners Court in 2023, including inquiries into deaths relating to the Whakaari-White Island eruption, Cyclone Gabrielle, the Loafers Lodge fire in Wellington and the 2019 Christchurch Masjidain Attack.

The Coroners Court bench grew substantially in 2023, a result in part of the Coroners Amendment Act, which established a new associate coroner role. Seven associate coroners and five relief coroners were appointed to the Court, which now sits at a total of 37—comprised of one District Court Judge (the Chief Coroner), 21 permanent coroners, eight relief coroners and seven associate coroners. In August, Coroner Brigitte Windley was sworn in as Deputy Chief Coroner.

The Act also allowed for the introduction of a new clinical advisory function to the Court. A new chief clinical advisor and seven clinical advisors—all senior doctors—have been appointed to support doctors to determine whether to report a death and to advise the duty coroner in relation to their inquiries.

Coroners work closely with Police and the Ministry of Justice to improve the coronial process so that it is consistent, efficient, empathetic and culturally responsive. It is important that to the greatest extent possible, the coronial process is consistent with tikanga Māori so that whānau can carry out cultural practices upon the death of a family member.

Coroners Court statistics

Backlog reduction strategy

The Coroners Court has operated with a considerable backlog for some time. Coroners are acutely aware of the impact of delays on whānau and other interested parties and the Court launched its backlog reduction strategy, supported by the Ministry of Justice, aimed at progressing the older files currently before the Court, in October.

The strategy, along with the appointment of additional relief coroners, associate coroners and clinical advisors, has seen coroners’ caseloads reduce. By December the number of active cases had dropped to just over 6,000 (down from more than 6,500 in June), and over 200 aged files have been closed.

Masjidain attack coronial inquiry

The inquest into the 2019 Christchurch Masjidain attack coronial inquiry started with a seven-week hearing in Christchurch between October and December 2023, presided over by the Deputy Chief Coroner.

The inquiry involves more than 120 interested parties. It is supported by a Ministry of Justice programme of work, as well as cultural advisors, and external agencies responsible for supporting the families and other interested parties. A livestream interpreted into four languages was made available to enable the many bereaved families and victims of the attack to follow the hearing.

The inquiry is ongoing.

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Footnotes

[36] High Court workload statistics are published at Annual Statistics for the year ended 31 December 2023—Courts of New Zealand (courtsofnz.govt.nz).

[37] Judgment delivery expectations for the High Court are available on Judgment delivery expectations — Courts of New Zealand (courtsofnz.govt.nz).

[38] Employment Court Recusal Guidelines (2023).