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.