Last revised 26 March 2021
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.
Below are a number of areas in which the Committee is currently undertaking significant reviews of the rules of practice and procedure. The list is not exhaustive, and does not refer to the numerous smaller matters of a more technical and detailed nature the Committee regularly addresses (such as out-dated cross-references, apparent typographical errors, and changes to lesser used specialised procedures).
The review process is a perpetual one. The Committee welcomes comments and enquiries from the profession and the public about existing projects or other concerns relating to procedural rules which it is thought should be brought to the Committee’s attention.
Current Major Initiatives
Promoting access to civil justice
The Committee has been made aware of concerns regarding the costliness associated with bringing a civil claim in the District Court. These concerns relate to the apparently disproportionate cost of complying with relevant procedural requirements for claims below a given value. The Committee has also become aware of similar concerns regarding the disproportionately burdensome nature of many procedural requirements in place in the High Court.
This work programme reached a significant milestone in late 2020 with the conclusion of the initial consultation process. Details of this initial consultation process are available on the project page. Over 400 pages of submissions were received from several dozen members of the legal profession, academics, representatives of community organisations, and members of the wider community. Copies of most of the submissions received in response to the Committee's initial consultation papers have been published on the project page.
The Committee has arrived at a preliminary view on a number of issues, but has identified that further consultation is required on some matters. A further consultation paper outlining the Committee's preliminary views, and asking for further input on some particularly contentious issues, will be published in the second quarter of 2021.
Costs for lay-litigants
The Supreme Court, in its decision in McGuire v Secretary for Justice  NZSC 116, indicated that it may be appropriate for the Rules Committee to reassess the continuing appropriateness of the rule prohibiting the award of costs to successful lay-litigants, and also the exceptions to that rule allowing costs to lawyers appearing in person and in-house counsel.
The Committee has determined that it is appropriate to review these matters, and to consider what new rules of court will be required if the current rules are changed.
The Committee undertook consultation with the profession and public regarding potential reforms in this area in 2020.
The Committee has arrived at a preliminary view on a number of issues, but has identified that further consultation is required on some matters, given the substantive policy issues involved in reforming the costs regime. A further consultation paper outlining the Committee's preliminary views, and asking for further input on some particularly contentious issues, will be published in the second quarter of 2021.
More information, and the consultation papers so far published, can be found on the project page.
Electronic filing in the High Court
The Committee has identified that it would be desirable to ensure that electronic filing is permitted under the High Court Rules 2016 in as many cases as possible.
The scope of electronic filing permitted in the High Court was radically expanded during the period of emergency assocaited with COVID-19 pursuant to the High Court (COVID-19 Preparedness) Amendment Rules 2020. The electronic filing of documents was further facilitated in late 2020 by the introduction of the File and Pay platform on this website.
The Committee is presently working with the Ministry of Justice to determine the greatest extent to which the extension of electronic filing that took place during the COVID-19 emergency can be maintained following the cessation of the emergency, having regard to available resources and facilities.
At present, due to requirements for the maintenance of court records arising under the Public Records Act 2005, the Committee understands that it will be necessary for the Courts to maintain hard copies of court files as the "offical" record. Furthermore, due to resourcing issues, the High Court at least will likely require certain large documents to be filed in hard copy as well as electronically. However, the Committee is advised it will likely be possible for virtually all documents to continue to be filed electronially.
Further reforms of the High Court Rules 2016 providing the best possible regulatory framework for electronic filing in the High Court are expected in 2021, once a proper picture is obtained of the operational situation. Notice will be given to the profession and other court users of any changes in filing practice that further reforms require.
Electronic filing in the Court of Appeal and Supreme Court
The Committee has identified it will be desirable to maintain the increased availability of electronic filing in the Court of Appeal and Supreme Court seen during period of emergency assocaited with COVID-19 once that period of emergency ends. In essence, this allowed documents initiating appeals to be filed electronic, whereas previously these were required to be filed in hard copy.
Amendments to the rules of court for the Supreme Court and Court of Appeal effecting these reforms have been approved by the Committee. It is expected that these will come into force in May 2021.
Since 2017, the Committee has been working to develop rules to "codify" the procedure for commencing and defending a representative proceeding within the High Court Rules 2016. This will extend the very cursory provision presently made for such proceedings by r 4.24 of those Rules. This is intended to be a temporary reform, pending legislative reform in this area. Accordingly, the Committee's aim in promoting rules reforms in this area is to capture, rather than modify, the common law position.
A draft proposal was published for the purpose of consultation in 2018. A copy of the Committee's consultation paper can be found here . By the end of 2019, the Committee hadconsidered the feedback it received to that proposal, and prepared draft rules for adoption.
Following the Court of Appeal's decision in Ross v Southern Response Ltd  NZCA 431, as substantially approved by the Supreme Court in Southern Response Ltd v Ross  NZSC 126, the common law regarding representative proceedings has substantially changed. Given the Committee's intention to codify, rather than alter, the common law position, these decisions have percipitated the need for further work on the Committee's proposed reforms, and also for further consultation. Obviously, this work was not able to proceed until the Supreme Court finally disposed of the appeal in Ross in late November 2020.
The Committee has considered the appropriateness of continuing to pursue these reforms in light of the Law Commission's work on Class Actions and Litigation Funding. This may result in the introduction of a statutory regime covering the same ground as the Committee's draft rules.
The Committee has determined that it is appropriate to continue working in this area and promote rules reforms in advance of any eventual legislative response to the Commission’s work. This because of the desirability of putiting in place a clearer regulatory scheme than that provided by r 4.24 and the unlikelihood of any legislative reform being achieved before 2024 at the earliest.
The Committee will next consider this issue at its meeting of 28 June 2021. At that meeting the Committee will evlauate what amendments, if any, to promote in the immediate term.
Feedback and Suggestions
The Committee welcomes feedback on any of these or other issues relating to rules relating to the practice and procedure of the Courts. Please direct any comments to the Clerk.