Contents

Chapter 15
Other participants

Interveners

Introduction

15.38The role of an intervener is closely related to that of an amicus curiae. Interveners are also not parties to the case,236  but they can be permitted to participate in the proceedings if it is in the public interest or, less commonly, for their own private interest.
15.39In Issues Paper 29, the Commission noted that intervention “can provide the court with an enhanced perspective on the questions at issue in the proceedings, promote better and more informed decision-making and increase public acceptance of court decisions.”237  However, it can also raise issues of potential prejudice and unfairness to the parties to the proceeding, and cause inconvenience, delay and expense.238
15.40The Commission commented that while it has traditionally been difficult to convince the courts that intervention is justified, this is perhaps no longer the case, with intervention becoming increasingly common.239  However, it remains largely unregulated – there is no legislative foundation for intervention and, like the appointment of an amicus curiae, it is dealt with somewhat obliquely in court rules, and/or relies on the inherent jurisdiction of the High Court. There is certainly no detail in the rules as to when intervention will be permitted and, if so, what the intervener will be allowed to do.
15.41In Issues Paper 29 the Commission noted that in the United Kingdom and Canada, there has been a trend towards dealing with intervention explicitly in rules of court, although Australia still largely relies on the common law. The Commission asked whether legislation and/or rules are required to provide for interveners, and, if so, what rights interveners should have.240

Formal provision for interveners?

15.42There was general support in submissions for intervention to be explicitly provided for, although submitters differed as to whether this should be done in legislation or rules.

15.43Duncan Cotterill suggested that legislation should provide for the possibility of intervention, while rules should set out matters such as the process of making an application for the appointment of an intervener, the rights and obligations of an intervener, and any costs issues.

15.44On the other hand, the Crown Law Office said it would not support legislation, given the wide range of circumstances relating to which intervention may be contemplated or permitted, and the lack of documented problems in this area. It submitted any codification should be done in rules. Similarly, the Senior Courts’ judges also did not see any need for legislative provisions relating to interveners. They stated if any prescription is required, the rules of the relevant court would appear to be the appropriate vehicle.

15.45The Law Society considered a formal framework for intervention, including the appropriate role of interveners and the correct process for appointment, could be done through rules of court, albeit at a fairly “high level” so that judges retain a high degree of discretion in any particular case. The New Zealand Bar Association was happy with either legislation or rules.

15.46The rights that interveners should have also attracted differing views. Duncan Cotterill, for instance, considered interveners should have the right to make submissions as if they were a party to the proceedings, and to present evidence with leave of the court. The Law Society, however, was of the view that, as a matter of general principle, the role of an intervener should normally be significantly less than that of parties to the case, reflecting current practice. It submitted that the precise scope of an intervener’s role in any particular case should be left to the presiding judge.

15.47In light of the similarities (and arguably cross-over in some circumstances) between an amicus curiae and an intervener, the Commission sees merit in these both being treated in the same way – namely, by having a legislative provision providing for the ability to intervene/appoint an amicus, and the making of associated rules.

R80 There should be a provision in new courts legislation enabling the participation of an intervener in a proceeding, and the making of rules relating to interveners.

236The Beneficial Owners of Whangaruru Whakaturia No 4 v Warin, above n 228, at [27], citing Fairfax v C [2008] NZCA 39 at 29.
237Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 220, at [15.45].
238At [15.46].
239At [15.49]-[15.50].
240At [15.62]-[15.63].