Introduction and summary

Part 1 – The structure of new courts legislation

Part 1 of this Report deals with structural issues associated with consolidating the legislation governing the District Courts, High Court, Court of Appeal and Supreme Court. In this Report we refer to the High Court, Court of Appeal and Supreme Court as the “Senior Courts”.

A consolidated Courts Act

Chapter 1 considers whether a single statute should govern the Senior and District Courts of New Zealand. In Issues Paper 29, the Commission took the preliminary view that the evolution of a unitary Courts Act was both desirable and feasible in legislative drafting terms.5  That approach was met with objection by some submitters, in particular the Senior Courts’ judges, who were concerned that including the District Courts in a statute with the Senior Courts may diminish the constitutional role of the High Court, or at least appear to do so.

The Commission disagrees that a consolidated statute would have this effect. We recommend that the District Courts Act 1947, the Judicature Act 1908 and the Supreme Court Act 2003 should be consolidated into one modern Act, primarily because this would enhance access to justice through accessibility of the courts legislation, and its utility. Alternatively, a less attractive but still feasible option is that the District Courts Act 1947 could remain as a separate Act (with some revisions), and the Judicature Act 1908 and the Supreme Court Act 2003 consolidated into a Senior Courts Act.

We recommend that current references in legislation to “superior” courts or judges should be replaced with the word “senior” in new courts legislation, and that current statutory references to “inferior” courts or judges should instead refer to the District Court and/or other relevant court(s).

Judicature Amendment Act 1972

Whatever approach to consolidation is adopted, downstream questions of legislative structure will necessarily have to be addressed and resolved. Chapter 2 considers the constitutionally important subject of judicial review, which is currently governed (although not exclusively so) by the 1972 Amendment Act. Its legislative placement is parasitic upon the 1908 Act, so if that statute is repealed, the 1972 Amendment Act will have to have a new “home”, either in consolidated courts legislation, or in a standalone statute.

In Issues Paper 29, the Commission took the view that a standalone Act – not altering the current law – would be both desirable and feasible, and a draft Judicial Review (Statutory Powers) Procedure Bill was prepared by Parliamentary Counsel. That draft is attached as Appendix 3. We remain of the view that if there is a consolidated Courts Act, there should be a standalone Judicial Review Act containing the substance of the provisions of the 1972 Amendment Act redrafted in modern language.

If instead there is to be a District Courts Act and a consolidated Senior Courts Act, the modernised provisions of the 1972 Amendment Act should appear in the statute governing the Senior Courts.

Chapter 2 also examines changes to the draft Judicial Review (Statutory Powers) Procedure Bill suggested by submitters.

Rules of court

Each of the four courts considered in this Report has its own rules, dealing primarily with practice and procedure. In chapter 3, we recommend that these rules not be included in primary legislation (as the High Court Rules currently are), as this would make the legislation too unwieldy and inflexible, and would detract from its accessibility. Instead, we recommend that the rules have the status of regulations. This would require greater detail to be included in the legislative provision enabling the making of the High Court rules.

We do not recommend any changes to the current processes for the making of rules.

Relocation of other provisions of the Judicature Act 1908

There are some provisions in the Judicature Act 1908 that would not sit appropriately in new courts legislation. In chapter 4, we recommend that the current Part 1A provisions, which relate to certain trans-Tasman proceedings, be moved to the Trans-Tasman Proceedings Act 2010, which did not exist at the time Part 1A was added to the 1908 Act.

We also recommend that the sections dealing with ad hoc commercial matters (sections 17A to 17E (liquidation of associations); sections 84-86 (sureties); section 88 (lost instruments); section 90 (stipulations in contracts as to time); section 92 (discharge of debt by acceptance of part in satisfaction); and sections 94A and 94B (payments under mistake)) be retained in legislation, but moved to a new miscellaneous commercial matters statute.

Moving the provisions relating to trans-Tasman proceedings and commercial matters into other legislation would improve the accessibility of these provisions and enhance the clarity of the courts legislation.

5We included, at Appendices 2 to 4 of Issues Paper 29, a draft of the sort of provisions which would have to be made for Judges in a consolidated measure, to show what such drafting, in modern style, would look like.