Contents

Chapter 15
Other participants

Amicus curiae

Introduction

15.27An amicus curiae, or “friend of the court” as it is now called in the United Kingdom,227  is not a party to an action, but a person appointed by the Court.228  The role of an amicus is either “to help the court by expounding law impartially, or if one of the parties were unrepresented, by advancing legal arguments on his behalf.”229
15.28As will be immediately apparent, these two roles are quite different. As the Court stated in The Beneficial Owners of Whangaruru Whakaturia No 4 v Warin:230

…There is a substantial difference between expounding law impartially and advancing legal arguments on a party’s behalf. The latter involves partisan advocacy, while the former does not; the latter involves engaged confrontation with opposing counsel, but the former involves giving assistance to the court in a neutral and comprehensive way, particularly to ensure that all aspects of a dispute are teased out and addressed.

15.29In Issues Paper 29, the Commission identified some of the different situations that amici curiae have been appointed in,231  while noting that the core remains constant: an amicus curiae does not act on instructions from a party to the proceedings, rather, the “amicus selects independently arguments which he/she thinks are appropriate to put before the Court, or…discharges requests from the Court for analysis of one matter or another.”232
15.30The Commission then pointed out there are no sections in the existing courts legislation expressly allowing for the appointment of an amicus curiae. Rather, there is a mix of provisions and court rules, some relating to the appointment of counsel generally and others to incidental directions and orders the courts can make in relation to proceedings.233
15.31We discussed when an amicus should and should not be appointed,234  and asked whether the power to appoint an amicus curiae should be codified in legislation, and, if so, what the nature of that power should be.

Formal provision for an amicus curiae?

15.32Only two submitters thought a legislative provision relating to amici curiae was necessary. One of these, the Department of Labour, drew parallels with section 269 of the Immigration Act 2009, which enables the appointment of counsel assisting the court in Immigration and Protection Tribunal and court proceedings involving classified information.

15.33Other submitters, including the Law Society, the Crown Law Office, the Bar Association and the Senior Courts’ judges, did not consider such a provision to be necessary at this point in time.

15.34The Bar Association did, though, state that the grounds on which amici curiae can be appointed should be elaborated in rules or elsewhere, noting that at times they are appointed in circumstances where they then move into partisan advocacy, the difficulties this can lead to when the matter gets appealed, and that it could become a form of de facto legal aid.

15.35On the other hand, the Law Society considered that it would be potentially dangerous to attempt to be overly prescriptive in identifying the specific situations in which it is appropriate to appoint an amicus, and that a review of the case law does not suggest that the power is being over-used, but should be left to judges in individual cases.

15.36The Commission agrees with submitters that, given the range of situations and roles that amici curiae are required for, a detailed legislative provision enabling their appointment would not appropriate. An amicus curiae can be contrasted with, for example, a McKenzie friend, the latter being a right of the self-represented litigant, while the former is at all times there to assist the court. As such, the need for a legislative provision is not the same and, indeed, it would be quite wrong for self-represented litigants to see the appointment of an amicus as some form of de facto legal aid.

15.37However, the Commission considers that some elaboration in court rules would be useful. At a minimum, the ability of the court to appoint an amicus curiae should be spelt out. It is awkward, to say the least, that the courts are at present required to appoint amici under general rules relating to incidental orders and directions.235

R79 There should be a provision in new courts legislation stating that the court may appoint an amicus curiae, and enabling the making of rules regarding the circumstances in which an amicus may be appointed.

227Lord Goldsmith QC, Attorney-General to the United Kingdom “Advocate to the Court” Law Society Gazette (United Kingdom, 1 February 2002) <www.lawgazette.co.uk>.
228The Beneficial Owners of Whangaruru Whakaturia No 4 v Warin [2009] NZCA 60, [2009] NZAR 523 at [19].
229Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 266 per Salmon LJ.
230The Beneficial Owners of Whangaruru Whakaturia No 4 v Warin, above n 228, at [20].
231Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 220, at [15.20].
232Solicitor-General v Moodie HC Wellington CIV-2005-485-1026, 25 July 2006 at [19].
233Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 220, at [15.22]-[15.25].
234At [15.26]-[15.35].
235For example, Court of Appeal Civil Rules, rr 5 and 7.