The creation of a dedicated commercial court is among the ideas floated in the Law Commission’s review of the legislation governing the New Zealand court system.
Submissions on the discussion document are due by 27 April.
This Brief Counsel provides an overview to the areas the Commission has identified for potential reform. Chapman Tripp will produce separate Brief Counsels on each of these ‘talking points’.
The Commercial List and specialisation
The Law Commission has floated a number of proposals to speed up the resolution of commercial disputes. These include:
- expanding the Commercial List, and
- creating a specialist commercial court.
The Commission’s provisional view is that “cost implications would immediately seem to rule out a standalone commercial court.” Instead it suggests a more feasible option may be to move to a panel system under which the High Court would be split into divisions with different specialties (such as criminal, commercial, equity or similar).
Specific divisions beyond commercial matters may not be wanted at this stage. The result of such a panel could be the need for specialist Judges.
The District Court
The lower cost District Court option for civil litigants is hamstrung by a jurisdiction fixed at disputes of no more than $200,000, with scope for defendants to transfer any matter over $50,000 to the High Court.
The Law Commission recommends extending the threshold to $300,000, which is in line with inflation.
Vexatious litigants and interveners
The process for dealing with vexatious litigants currently requires action by the Attorney-General or Solicitor-General. Other jurisdictions have a “graduated response” system which is more accessible to the parties involved.
Interveners are non-parties to the litigation that do not have a stake in the direct outcome of the case, but may participate by making submissions to the Court. The Law Commission has considered spelling out rules for interveners, including procedures they must follow and the costs they may be liable for.
The Law Commission asks whether the appointment process to superior courts would be improved by having criteria and requirements for consultation.
Annual reports to Parliament
The Law Commission has been mulling whether the Chief Justice should be required to make an annual report to Parliament or “State of the Union” type address on how the courts are performing.
This would be a way to ensure accountability. But the Commission has concerns that it may be contrary to the need for judicial independence, and may require further resources.
Civil jury trials
Civil jury trials are hardly ever used. The Law Commission has queried whether the option of a civil jury trial is necessary, or, if it is, whether it is only useful for certain cases (such as defamation).
Chapman Tripp litigation comment
We generally support the Law Commission proposals, most of which represent reasonably minor repairs to the status quo. The most nuanced of the issues relates to the structure of the High Court. Restructuring almost 50 judicial officers into panels would need to be a delicate and incremental process.
The Chapman Tripp litigation team will comment on each of the main talking points in more detail in an upcoming series of Brief Counsels.