Introduction and summary

Part 4 – Remaining matters

Miscellaneous provisions of the Judicature Act 1908

There are various other miscellaneous provisions of the 1908 Act that came to our attention during preliminary scoping of the project. These are discussed in chapter 14, where we confirm our provisional view, expressed in Issues Paper 29, that sections 18 (Crimes before 1840), 23 (Special sittings of the High Court), 26IB (Video link) and 54B (Discharge of juror or jury) are no longer required, and should not be carried over into new courts legislation.

We also conclude that section 55 of the 1908 Act (Absconding debtors) should be retained, but drafted in terms of the current District Courts Act 1947 equivalent provision, and that the maximum penalty in section 56A (Failure to respond to a witness summons) should be increased to $1,000. Sections 94 (Effect of joint judgments) and 98A (Proceedings in lieu of writs) should also be retained in new courts legislation and clarified.

Finally, we recommend section 99 (Conflicts between equity and the common law) be re-enacted unchanged in new courts legislation.

Other participants in civil cases

There are a number of situations in which participants other than the parties to a case may take part in civil proceedings. In chapter 15 we discuss four of these “other participants”: McKenzie friends (support persons for unrepresented litigants); amici curiae (“friends of the court”); interveners; and technical advisors. The focus is on the appropriate level of formal prescription required for each in new courts legislation.

We conclude in respect of each of these four participants that:

We also recommend that section 99A, which provides for the payment of costs for interveners or counsel assisting the Court, be re-enacted, but amended to make it clear that it only applies to these persons.

Vexatious litigants

Where someone persistently and without any reasonable ground institutes vexatious legal proceedings, the High Court may, pursuant to section 88B of the 1908 Act, restrain that person from bringing or continuing civil proceedings. In Issues Paper 29, we noted that there are a number of problems with this means of dealing with “vexatious litigants” (as they are often called). We asked submitters whether New Zealand should move to a graduated civil restraint order regime like they have in the United Kingdom, or whether we should instead “fix” section 88B.

Given the unanimous support we received in submissions for a civil restraint order regime, we recommend in chapter 16 that section 88B of the 1908 Act be replaced with a provision enabling the making of three tiers of civil restraint orders:

A full list of recommendations is attached as Appendix 5.