Part 3 of this Report looks at particular issues raised in Issues Paper 29 in relation to the individual courts under consideration.
The question of what should be done with the Commercial List provisions in the Judicature Act 1908 (sections 24A to 24G) inevitably raises the controversial issue of whether there should be some form of judicial specialisation in the High Court. This is discussed in chapter 10. There are difficulties in formulating policy in this area due to the lack of available data concerning the nature of the High Court’s civil workload.
In Issues Paper 29, the Commission outlined problems with the Commercial List, and proposed the development of specialist panels of judges in the High Court along the lines of those operating in many Australian courts.
The Senior Courts’ judges said they consider that judging in itself is a specialised form of legal practice, and that having specialisation in the High Court would have a negative impact on judicial appointment and cause practical difficulties for the Court. On the other hand, there appears to be significant support for at least the establishment of a specialist commercial panel among practitioners. The New Zealand Bar Association’s survey of its members indicated “overwhelming support” for judicial specialisation in some form.
The Commission considers that a sufficient need has been made out for the establishment of a commercial panel in the High Court. However, we are not presently satisfied, on the information available to us, that other panels are justifiable at this stage. We recommend that new courts legislation should empower the Attorney-General, with the concurrence of the Chief High Court Judge, to establish panels in the High Court by Order in Council. The precise number and placement of the judges on a panel should be a matter for the Chief High Court Judge, although, in our view, no judge should spend more than 50 per cent of his or her time on a panel. A senior High Court Judge should be assigned as the head of any panel.
We consider that the Commercial List should be abolished, and a commercial panel established as a pilot project to ascertain how a panel system would best work in New Zealand.
We do not accept that the establishment of panels of specialist judges in the High Court would in any way diminish the High Court’s jurisdiction. The legislation would state explicitly that the existing jurisdiction of the High Court is “continued”.
Civil jury trials in the High Court are rare these days, but the 1908 Act enables a party to a civil proceeding to have its case heard by a judge and jury where the relief claimed is payment of a debt, pecuniary damages, or recovery of chattels exceeding $3,000 in value. This threshold is clearly out of date. Chapter 11 considers whether civil jury trials in the High Court should be retained, given their rare use and associated costs.
The Commission concludes that the right to a civil jury trial should be retained, but restricted to claims involving damage to a person’s reputation, liberty, or sanctity of the person, where damages are at large. This should include claims for defamation, false imprisonment and malicious prosecution. Members of the public are likely to be best placed to assess damages in these cases.
In Chapter 12, the Commission recommends the current 63 individual District Courts be formally recognised as one Court that sits in multiple localities (like the High Court). This would eliminate any practical issues that arise as a result of the separate status of the courts. It does not mean there would be a reduction in local courthouses.
We also recommend that the upper limit of the civil jurisdiction of the District Court be increased to $500,000 from the current $200,000, if modelling by the Ministry of Justice shows that this would be feasible. Such an increase would enable more litigants to utilise the District Courts’ “settlement first” approach, which would increase access to justice, and would take into account not only inflation since the $200,000 limit was set in 1992, but also future inflation and current land values.
In chapter 13, we make recommendations to refine the provisions dealing with the composition of the Court of Appeal and the matters that may be dealt with by a single judge and a two judge panel. We also recommend that new courts legislation should contain a provision enabling the Court of Appeal to order a retrial in both civil and criminal matters, and conclude that the provision enabling trial at bar should be abolished.
The chapter also provides an update on the Commission’s proposal in Issues Paper 29 to review appellate pathways.