Current Projects
The Rules Committee continuously reviews the rules in light of national and overseas developments.
It monitors Australian and United Kingdom reports and reforms to identify areas where New Zealand could adopt or adapt ideas.
The review process is a perpetual one. The following information is intended to provide an update of the current projects occupying the Rules Committee, although the list is not exhaustive. The Committee welcomes comments from the profession and the public, either about existing projects, or in relation to areas which it is thought should be brought to the Committee’s attention. Scroll down or click on a link below to find out more about the Committee’s progress in a particular area.
Freezing (Mareva) Orders and Search (Anton Piller) Orders
Review of Daily Recovery Rates
District Courts Rules - Small Claims, Costs, Caseflow Management, and Discovery
Contempt and Enforcement of Judgments
Freezing (Mareva) Orders and Search (Anton Piller) Orders
There have been a number of ‘harmonisation of court rules’ projects which have been undertaken by committees appointed by the Council of Chief Justices of Australia and New Zealand. The first project was the harmonisation of Rules of Court relating to Corporations proceedings. The second was the harmonisation of Rules of Court relating to Subpoenas.
The third project, is the harmonisation of court rules relating to Freezing (Mareva) Orders and Search (Anton Piller) Orders.
This third project began late October 2004 and has just now been completed. The result has been a form of harmonised rules of court and associated practice notes (which incorporate example forms of order). They are as follows:
Freezing Orders
Search Orders
Copies of the Rules of Court, Practice Notes and the example forms are available by clicking on the links above.
Although the documents bear references to the Federal Court of Australia, it is hoped that all of the State Supreme Courts in Australia will adopt them in accordance with their own procedures. It is, of course, ultimately a matter for each Court. If as is hoped the New Zealand rules are in like terms the result will be a harmonised régime operating in all or most jurisdictions.
The New Zealand Rules Committee is currently reforming the High Court Rules and expects to incorporate the drafts in the new Rules. We do not currently use Practice Notes; the editors of McGechan and Sim will be invited to align their comments with the proposed new rules and the draft Practice Note.
There are two important features to the rules and practice notes. First, there is the adaptable example form of freezing order, which is part of the Freezing Orders Practice Note, and the example form of search order, which is part of the Search Orders Practice Note. Secondly, in the case of the Search Orders Practice Note, a greater role than previously is given to the independent solicitor who supervises the execution of the order. In particular, it is the independent solicitor who takes possession of the things seized and must have them ready to produce upon the return date.
The independent solicitor is an important safeguard against abuse of the Search Order. For the effective operation of the Search Order, the participation of the Law Society in maintaining a list of solicitors for the purpose of supervising the execution of search orders is vital. The Search Order Practice Note makes clear that it would be open to any solicitor, whether on the list or not to perform this function. In view of the increased role which the independent solicitor will have under the new regime, and the urgency that usually attends applications for search orders, it is desirable that a list of available solicitors be kept. The New Zealand Law Society will be invited to consider setting up and maintaining a list of solicitors for the purpose of supervising the execution of search orders.
As in the case of previous harmonisation projects, the Council of Chief Justices will appoint a committee to monitor the operation of the new rules and practice notes. We expect that the first meeting of the monitoring committee might take place, six to nine months hence, after the rules and practice notes have been operating for a little while.
We would be gratefull to receive any suggestions for improvement. Comments can be made by email: rulescommittee@justice.govt.nz.
The Committee which produced the rules and practice notes is set out below. In addition Justice JC Campbell of the Supreme Court of New South Wales and Justice PM Biscoe of the Land and Environment of New South Wales participated in the work of the Committee.
Federal (Convenor), Lindgren J; Victoria, Harper J; New South Wales, Hamilton J; Queensland, Wilson J (Muir J, acting); Western Australia, Owen JA; South Australia, Besanko J (now Anderson J); Tasmania, Evans J; Australian Capital Territory, Connolly J; Northern Territory, Coulehan M; New Zealand, Baragwanath J.
Appeals to the High Court, Interlocutory Orders, Caseflow Management, and Exchange of Witness Statements and Common Bundles of Documents
The High Court Amendment Rules 2003 came into force of 24 November 2003. The amendments concern appeals to the High Court, interlocutory orders, caseflow management, and the exchange of witnesses' statements and common bundles of documents. Click here for a summary of the amendments introduced by the High Court Amendment Rules 2003.
Review of Daily Recovery Rates
The High Court Amendment Rules (No. 2) 2003 came into force on 1 January 2004. They increase the daily recovery rates contained in the Second Schedule to the High Court Rules. Click here for a more detailed explanation of the amendments to the daily recovery rates.
Discovery
Earlier this year the Committee released a consultation paper concerning proposed amendments to the Court of Appeal (Civil) Rules 1997, High Court Rules, and District Court Rules 1992. The amendments concern various subjects including discovery, payment into court, swearing of affidavits, judgment delivery, and defamation. The Committee is currently considering the submissions it received on the proposed amendments.
District Courts Rules - Small Claims, Costs, Caseflow Management, and Discovery
The Committee has commissioned Judges Doherty and Joyce to prepare a consultation paper suggesting a 'roadmap' for small claims procedure in the District Courts. The project will involve consideration of the recent work of the Law Commission on this topic. The consultation paper will also consider the applicability to the District Courts of some of the recent and proposed reforms to the High Court Rules.
Contempt and Enforcement of Judgments
The Committee is in the preliminary stages of reviewing Part IV of the High Court Rules. The Committee considers there is considerable scope for updating and simplifying those rules.
Practice Notes
In consultation with the Chief Justice, the committee is working through High Court practice notes issued over many years. Some will be incorporated into rules. The committee is soon to embark on a similar exercise for the district courts in consultation with the Chief District Court Judge. This project gives effect to the committee’s stated policy of having permanent procedural instructions in rules unless there is a good reason for having them in a practice note.
