Contents

Chapter 14
Other provisions in the Judicature Act 1908

Miscellaneous sections of the Judicature Act 1908

14.9The miscellaneous provisions in the Judicature Act 1908 discussed in chapter 13 of Issues Paper 29 can largely be divided into two categories – those that do not need to be carried over to new courts legislation, and those that we suspected would need to be retained, but which are potentially problematic in the way that they are drafted at present. Then there is one remaining matter – section 26P (decisions of associate judges amenable to review of appeal) – that arguably falls into a category of its own. We discuss each in turn.

Provisions that do not need to be carried over

14.10The Commission noted the following provisions of the Judicature Act 1908 as likely not being required in future courts legislation:
(a)Section 18 (Crimes before 1840);
(b)Section 23 (Special sittings of the High Court);
(c)Section 26IB(Video link); and
(d)Section 54B (Discharge of juror or jury).

14.11No submitters took any issue with these provisions not being included in a new Courts Act, and we recommend accordingly.

R70 The following provisions of the Judicature Act 1908 should not be carried over into new courts legislation:
(a)Section 18 (Crimes before 1840);
(b)Section 23 (Special sittings of the High Court);
(c)Section 26IB (Video link); and
(d)Section 54B (Discharge of juror or jury).

Provisions to be retained

14.12The following provisions of the Judicature Act 1908 fall into the category of needing to be retained in new courts legislation, but potentially requiring amendment or clarification:
(a)Section 55 (Absconding debtors);
(b)Section 56A (Failure to respond to a witness summons);
(c)Section 94 (Effect of joint judgments); and
(c)Section 98A (Proceedings in lieu of writs).

14.13We deal with each in turn.

Section 55: Absconding debtors

14.14Pursuant to section 55 of the Judicature Act 1908, a Judge can order the arrest and imprisonment of an absconding debtor if the debtor does not give security guaranteeing that he or she will not leave New Zealand without leave of the High Court. A similar provision exists in the District Courts, albeit worded in a somewhat more modern form.211  Given the development of freezing orders, and that arresting defendants in civil proceedings is a somewhat extreme measure, in Issues Paper 29 we asked whether such a provision should be carried over into new courts legislation.

14.15All submitters who answered this question favoured an absconding debtors provision being included in new courts legislation. The New Zealand Law Society considered that freezing orders are not a replacement for the remedy that such a provision provides. The Senior Courts’ judges agreed, and did not see any compelling case for omission of such a power.

14.16Duncan Cotterill and the Law Society both tended to agree that the new provision should be drafted in terms of that in the District Courts Act 1947, although the latter noted that the maximum security of $2,000 in section 109 would be too low for the higher value claims that are typically heard in the High Court.

14.17In light of the support for the retention of an absconding debtors provision, we are content for an absconding debtors provision to form part of a new Courts Act. We agree that the provision should be drafted in terms of the District Courts Act 1947 section, and that a security of $2,000 is too low. The Judicature Act 1908 formulation in this respect – that the amount of security should be fixed by the Judge and must not exceed the amount claimed in the proceedings – is to be preferred.

R71 An absconding debtors provision should be carried over into new courts legislation, drafted in similar terms to section 109 of the District Courts Act 1947, but with the maximum amount of security increased to an amount not exceeding the amount claimed in the proceeding.

Section 56A: Failure to respond to a witness summons

14.18The maximum fine for a failure to respond to a witness summons in the High Court is $500.212  In the District Courts it is $300.213  In Issues Paper 29, we suggested that these might be too low, particularly given the maximum fine in the Criminal Procedure Act 2011 for this is $1,000,214  and the penalty for failing to attend for jury service is a fine not exceeding $1,000.215

14.19All submitters who responded to this issue agreed that the maximum fines should be consistent at $1,000, and we recommend accordingly.

R72 The maximum fine in new courts legislation for failing to respond to a witness summons should be increased to $1,000.

Section 94: Effect of joint judgments

14.20Section 94 of the Judicature Act 1908 modified the common law so that, where parties are jointly liable, a judgment against one or more of those parties does not operate as a bar or a defence to a proceeding against the other jointly liable party or parties, except to the extent that the judgment has been satisfied. In Issues Paper 29, the Law Commission noted that the provision’s scope had been narrowed by section 17(5) of the Law Reform Act 1936, but that this was not clear on the face of section 94. We proposed to retain the provision, but to clarify it by either cross-referencing section 17(5) of the Law Reform Act 1936 or making this apparent in the wording of the new section.

14.21All submitters who addressed this issue supported the retention of section 94 in new courts legislation. The New Zealand Law Society also approved of the proposal to cross-reference it with section 17(5) of the Law Reform Act 1936, but the Senior Courts’ judges suggested that while clarification “may well be desirable”, it may be better to wait until the Commission has reported on its reference to review the joint and several liability rule.

14.22Given the support for our preliminary view that section 94 of the Judicature Act 1908 should be retained, that is what we are recommending. In terms of clarification, while ideally a recommendation on this would await the outcome of the Commission’s review of joint and several liability, the Report on that project is unlikely to be completed until the 2013/14 work year.216  Accordingly, we consider that, in the meantime, the provision in new courts legislation should be cross-referenced with section 17(5) of the Law Reform Act 1936.

R73 Section 94 of the Judicature Act 1908 (Effect of joint judgments) should be retained in new courts legislation and clarified by cross-referencing it with section 17(5) of the Law Reform Act 1936.

Section 98A: Proceedings in lieu of writs

14.23Section 98A was inserted into the Judicature Act 1908 in 1985 to reflect the changing focus from the need to have the correct writ to advance a claim to a more unified procedure for all civil actions. It was worded in very broad terms, seemingly to maintain the courts’ powers as they were at the time of the commencement of the provision, and to avoid reinstituting any powers under writs that had been previously abolished. In Issues Paper 29, we expressed concern that the section was unsatisfactory in terms of being clear law, and our provisional view was that it should be retained, but phrased more clearly in new courts legislation.

14.24While submitters generally agreed with the retention of section 98A, they urged us to be cautious in recommending any change to it. The Law Society advised that, to its knowledge, there had been no problems with the provision and would not support clarification in the absence of clear evidence that it was necessary. In its view, redrafting risks unintentionally excluding or limiting important, although little used, powers. Similarly, the Senior Courts’ judges would not like to see amendments to the provision if the result is doubt as to whether amendment or retention of the status quo was intended.

14.25Given the general agreement that the provision should be retained, we do recommend this. However, the question of whether to clarify the provision is problematic. We agree that unintended consequences must be avoided, but also do not like the idea of a modern courts statute, which will be a fundamental resource for litigants in person, carrying forward such uncertain provisions. In our view, every effort should be made by the drafters of new Courts legislation to capture the meaning and effect of section 98A in accessible and clear language.

R74 Section 98A of the Judicature Act 1908 (Proceedings in lieu of writs) should be retained in new courts legislation but redrafted in accessible and clear language.

Decisions of Associate Judges

14.26The final matter in this chapter is the difficult issue of the review of, or appeals against, decisions of Associate Judges, which is presently found in section 26P of the Judicature Act 1908. In Issues Paper 29, we noted that we had been advised that the Rules Committee was considering the issue, and therefore we did not intend to propose any amendments while its work was still continuing.

14.27We note the following passage from the Rules Committee’s minutes of meeting held on 3 October 2011:217

3. Review/Appeal from Associate Judge Decisions and Interlocutory Appeals to the Court of Appeal

The Chair re-activated this Agenda item, which comprises two distinct issues. First, the review of an Associate Judge’s decision by a High Court Judge. The Chair commented that in light of the recent reforms on case management and discovery, it would be desirable if Associate Judges’ decisions could be reviewed more quickly in the High Court by the same registry than if they were removed to the Court of Appeal. Second, whether appeals against non-dispositive interlocutory decisions should only be by way of leave. The Chair sought comment from the Committee on these issues.

Some Associate Judges’ decisions fall to be reviewed in the High Court while others are appealed to the Court of Appeal. Justice Winkelmann expressed concern at the inconsistency that summary judgments by Associate Judges go to appeal whereas strike-out applications go to review. The Chief Justice pointed out that there are substantively different outcomes between summary judgment and strike-out, justifying two different procedures.

Presently, after an Associate Judge’s decision has been reviewed, there is still a further right of appeal to the Court of Appeal. Justice Asher suggested that to remove the right of review of Associate Judge’s decisions by High Court Judges also removes the hierarchical distinction between the judges and would be a significant policy-level change which must be addressed. Mr Beck opined that the distinction between Associate Judges and Judges was unacceptable as chance often dictates which judge hears a case. The Chief Justice was reluctant to remove a right of appeal simply to remove hierarchy, and expressed the view that there was a place for hierarchy. The Chief Justice favoured retaining the current position on reviews. The Committee moved to discuss the second issue of appeals against non-dispositive interlocutory decisions.

14.28We take from this that the Rules Committee has resolved not to progress its review of the matter any further, and it does not seem to have been considered again at any subsequent meetings. However, as recently as August 2012 there have been calls for the “divergent paths created in s 26P of the Judicature Act” to be “comprehensively reviewed in order to remove the difficulties that have now plagued this aspect of the law for some 25 years.”218
14.29As noted in Issues Paper 29, we consider that dealing with specific appeal sections in isolation creates its own problems.219  Accordingly, we recommend that section 26P be carried over into new courts legislation as it is, until such time as appellate pathways are reviewed generally.

R75 Section 26P of the Judicature Act 1908 1908 (Review of, or appeals against, decisions of Associate Judges) should be re-enacted, unchanged, in new courts legislation, pending a review of appellate pathways generally.

211District Courts Act 1947, s 109.
212Judicature Act 1908, s 56A.
213District Courts Act 1947, s 54.
214Section 159 (not in force).
215Juries Act 1981, s 32.
216Law Commission 2012-2015 Statement of Intent (NZLC, 2012) at 23.
217Rules Committee Minutes of meeting held on 3 October 2011 <www.courtsofnz.govt.nz/about/system/rules_committee> (6 October 2011) at 4-5. 
218Andrew Beck Litigation” [2012] NZLJ 235 at 238.
219Review of the Judicature Act 1908: Towards a new Courts Act, above n 206, at [11.1].