A long-awaited report from the judiciary’s Rules Committee has recommended a three-point plan for improving access to civil justice.
Three years in the making, the report suggests amending the procedural High Court Rules to achieve more focused and proportionate outcomes, reinvigorating the District Court’s declining civil jurisdiction – in part by appointing a new principal civil court judge — and raising the cap for the Disputes Tribunal’s small claims jurisdiction from $30,000 to $100,000.
To address a “slow-burning” justice gap, the committee’s findings go beyond simply altering the rules of court to suggest changes government ministers and policymakers can make to boost New Zealanders’ fundamental right to access fair and impartial justice. Across 72 pages, the committee recommends:
- expressly introducing proportionality as a guiding principle in the High Court Rules;
- amending a raft of procedural rules governing witness statements, discovery and disclosure, interlocutory applications and other matters, which will significantly change the approach to civil litigation in the High Court;
- embedding technology shifts and practices developed during covid-19, including electronic filing and remote hearings, as standard procedures;
- appointing a new principal civil District Court judge to oversee a revamped civil workload;
- restoring the court’s civil registry expertise to ensure best-practice case management;
- appointing part-time deputy judges from the legal profession, including King’s Counsel and senior civil practitioners;
- expanding the “expeditious, efficient, and proportionate” Disputes Tribunal to cover orders capped at $70,000 as of right or $100,000 with consent, up from the current small claims’ threshold of $30,000; and
- creating a general right of appeal to the District Court for higher value disputes.
It’s vital New Zealand’s courts provide an effective place for all people seeking to resolve disputes, says Justice Francis Cooke, chair of the Rules Committee. “During the consultation period, it became apparent that there were wider issues extending beyond the procedural rules in the courts. If there are procedural rules, or systemic issues that mean that there is not an affordable system of civil justice, then changes should be made.”
Cultural and rule changes
Psychological, cultural and informational barriers plague the courts’ civil jurisdiction. However, long perceived as beyond the budgets of most New Zealanders, the cost of litigation and representation is one of the biggest – and least surprising – obstacles.
The committee cites one of Otago law senior lecturer Dr Bridgette Toy-Cronin’s earlier submissions suggesting the cost of legal services between 2015 and 2016 was outstripping the average person’s means of meeting that cost: the average charge-out rate for employed lawyers rose by 8.4% while the median weekly income increased only 3.4%. Making matters worse is the profession’s “maximalist” approach to court action, in which “all issues are investigated, all evidence called and all matters argued”, the committee says.
In some quarters, it’s viewed as the benchmark for competent litigation. Concerned, the committee wants to discourage its prevalence. “We consider that the best litigators refine and distil the key issues arising in the case and focus on them, ever mindful of proportionality,” it says. Justice Cooke says “overly complex” procedural rules can exacerbate the expense – even if litigants’ disputes cost less and are simpler to understand. “In these circumstances, the rules must be reviewed.”
In an interview last year with LawNews, the judge said parties had to litigate much more efficiently if the service was still to be useful to the community. “You can change rules as much as you like but it all ultimately depends on the way people apply them. There does need to be a change in legal culture, not only in terms of what may be earned from conducting litigation as a skill set that you charge for but also in the way it is done.”
Judges had a part to play too, including taking a more proactive, hands-on approach to managing cases, Justice Cooke said. “It’s not simply a matter of sitting back and waiting for parties to present their case and impartially reaching a judgment. There needs to be more hands-on management in terms of making sure that the litigation is being conducted in a manner consistent with the principles of proportionality and access to justice.”
High Court Rules
Fostering cultural change is, in part, tied to rule changes. The committee has recommended judicial issues conferences, where judges, counsel and parties zero in on key issues, should occur later in proceedings when participants better understand the case, rather than happening shortly after claims are first filed. It’s expected judges will engage significantly in identifying the issues and what steps are required to resolve the case.
An additional feature of the High Court Rules reforms is that factual “will say” or witness statements, which summarise and outline what a witness may say in evidence, will replace briefs of evidence. The replacements will be served near the start of proceedings and before discovery is ordered, unless exceptional circumstances warrant otherwise.
The proposal, which adopts a procedure successfully introduced in the equity division of the New South Wales Supreme Court, hopes to shift litigation practice away from argumentative statements or repetitive recitations of the contents of documents that will be produced anyway, and toward much more focused evidence-in-chief and cross-examination.
A third feature is that counsel must emphasise the documentary record to establish facts at trial. Documents included in the agreed bundle should presumptively be admissible to establish those facts without the need for witnesses to traverse them, the committee says. In the event an admissibility challenge is made to a specific document, this can be determined at the trial itself.
Underpinning these changes is the addition of proportionality to High Court Rule 1.2, which aims to 2achieve the “just, speedy, and inexpensive determination” of any proceeding. “Making express reference in [rule] 1.2 to proportionality will recognise that the procedures appropriate for a particular proceeding will vary depending on the nature of the proceeding, and what is at stake,” the committee says.
It’s not lost on the committee how big of a change these proposed reforms will make to the way civil litigation is conducted. Because they vary from the specific proposals consulted upon, the committee will decide on implementation after a further round of consultation, and will consider whether pilots are necessary.
A reinvigorated District Court
There’s a perception the District Court has lost its civil jurisdiction capacity, Justice Cook told LawNews last year. “It doesn’t really have as much of a reputation for dealing with standard civil litigation as it used to.” Dealing with some 200,000 criminal, family, youth and civil matters every year, the District Court is Australasia’s busiest court, the committee says in its report. And while there are fewer defended civil proceedings in the District Court (600-700 of the 11,000 filed each year), the perceived decline doesn’t lie with the court’s still fit-for-purpose rules, the committee says.
Instead, the court’s criminal and family jurisdictions are demanding more judicial resources; the centralising of processing civil proceedings, rather than at each registry, has contributed to the loss of expertise among registry staff and has alienated civil practitioners; and the nearly one-year timeframe for the court to hear and dispose of defended civil applications is contributing to that perception. “This has led to further reputational damage to the District Court,” the committee says.
That’s set to change under its recommendations. A new principal civil judge will help tackle the court’s resourcing issues, bolster civil registry expertise by working with the Heads of Bench and the Ministry of Justice and focus on improving information barriers that some community groups experience. Establishing a separate civil jurisdiction is an additional, effective means of implementing proposed reforms, the committee believes, as is the appointment of part-time deputy judges from the profession who will help deal with workload issues while gaining experience should these barristers have judicial aspirations.
While it was submitted that part-time judges might compromise judicial independence (Bell Gully noted the separation between the Bench and the Bar was “constitutionally and professionally appropriate”), the committee considers the reform won’t necessarily erode that division. “Those appointed to such roles can be expected to observe the principles of judicial independence and there is no reason to expect they cannot manage these requirements in practice,” the committee says, noting perceived or actual conflicts of interest would be managed by the principal civil judge.
Bigger Disputes Tribunal
Tied to the issue of affordability is one of the committee’s key proposals: extending the jurisdiction of the Disputes Tribunal to handle higher-value claims. Justice Cooke last year told LawNews the proposal could help “because that’s the tribunal that doesn’t contemplate legal representation. So, if you increase the jurisdiction of that body at the lower end, you’re allowing people to access civil justice without having to meet the costs of legal representation.” The Disputes Tribunal, the only tribunal that forms part of the District Court, provides a quick and inexpensive way to resolve civil disputes.
First set up in 1976 as the Small Claims Tribunal, the tribunal has evolved to hear cases worth up to 60 times more than the original $500 remit. However, 60% of cases involve sums under $5,000, although an increasing number of claims exceed the current $30,000 jurisdictional cap. The kinds of disputes the tribunal helps resolve include damage from vehicle accidents, fencing spats between neighbours and business deals that have soured.
Hearings are held in private; agreement is encouraged as a first solution, with the tribunal empowered to determine cases if agreement cannot be reached; referees impartially help the parties through an evaluative and inquisitorial approach; and a right of appeal exists only for procedural unfairness issues. “The Disputes Tribunal performs a key role in the overall civil dispute resolution system, providing access to civil justice in smaller straightforward matters through to matters that are of considerable monetary or other significance to the parties involved,” the committee says.
Support was widespread among submitters for raising the tribunal’s jurisdiction cap to $70,000 as of right, an “incremental increase, particularly in light of the eroding value of money”, the committee notes. There’s little risk the increase will crowd out smaller-value claims. And higher-value disputes have already arisen, except the current cap excludes that part of parties’ claims.
The increase to $100,000 by consent is conditional on creating a general appeal right. While the committee recognises that the current procedural unfairness appeal right is still proportionate to lower-value claims, the stakes are higher with disputes exceeding $30,000 and parties might well decline to make use of the increased cap if they don’t have a substantive right of appeal. “There is confidence that an increase of the jurisdiction to $70,000 as of right and $100,000 by consent is a manageable and sought-after progression,” the committee says.
The Rules Committee embarked on its review in 2019, proposing four reforms: introducing short trials in the District and High Courts, an inquisitorial process for certain claims, a requirement that civil claims start off as applications for summary judgment and streamlining current trial processes to reduce their complexity and length.
Across three consultation papers, stakeholders submitted on the proposals and commented on more general issues about access to civil justice. Many agreed the issue was significant, the final report said, with the New Zealand Law Society referring to the “justice gap” that has been “slow-burning for at least a generation”. And any response had to address the broader culture of how civil litigation is practised. By the committee’s third consultation paper in 2021, proposed reforms had widened beyond the initial four proposals, leading to the Attorney-General and Minister of Justice to agree to the broader scope.
While the Disputes Tribunal and District Court recommendations were relatively unchanged, the committee’s proposed reforms to the rules of court had “materially changed”. The committee hasn’t recommended introducing more inquisitorial processes in the District Court as the current rules provide enough flexibility to use them where required. The committee is seeking further consultation on those proposals, and will take submissions into account when deciding upon implementation at its first meeting in 2023.
Stakeholders have until Friday 24 February 2023 to submit. ■