Disclaimer: This article was first published in the Chambers Asia-Pacific Guide 2023.
Improving access to justice has been the common thread running through a number of significant developments in dispute resolution in Aotearoa New Zealand in recent years. Both before and since the impact of the COVID-19 pandemic, there has been an increasing focus on procedural aspects of dispute resolution with the objective of increasing access to justice. Some notable examples of these developments are discussed below.
Over the last decade or so, class action style proceedings have increased in prominence in the legal landscape in Aotearoa New Zealand. In the absence of a statutory regime, the New Zealand courts have developed a set of principles for the management and conduct of this type of proceeding in the recent case law, using the existing procedural rules and the inherent jurisdiction of the court. Those developments have enabled both opt-in and, more recently, opt-out class action proceedings. In decisions in this area, the New Zealand courts have noted that one of the general objectives of this style of proceedings is improving access to justice, with the Supreme Court noting that opt out proceedings have particular advantages in this regard.
Following these developments in the case law, there is also a prospect of legislative reform in this area. Te Aka Matua o te Ture, the New Zealand Law Commission has conducted a first principles review of class actions and litigation funding in Aotearoa New Zealand and has recommended in its final report of June 2022 that a statutory class action regime be created. The Law Commission has recommended the enactment of a new Class Actions Act as the principal source of law in relation to class actions in Aotearoa New Zealand, with improving access to justice recognised as a statutory objective.
Proposed reforms to Court processes
In 2019, the New Zealand Rules Committee embarked on a review of the rules of court with the objective of formulating proposals to improve access to civil justice.
The "Access to Civil Justice Report", released on 23 November 2022, recommends a series of legislative and policy changes to improve access to justice, including that:
The flexible and responsive resolution services provided in the Disputes Tribunal should be made available in respect of disputes of a higher monetary value, up to $70,000. Currently, a broad range of disputes with a monetary value of up to $30,000 can be pursued through the Disputes Tribunal. The Tribunal process excludes legal representation and focuses on achieving quicker, cheaper and less formal resolution for litigants.
The institutional capabilities of the District Court's civil jurisdiction should be improved, and the expertise of the court's civil registry strengthened. The Committee also recommended that the capability and mana (authority and respect) of the civil jurisdiction be advanced by the appointment of specialist deputy judges to deal with civil cases. The District Court currently has jurisdiction to hear disputes with a monetary value of up to $350,000.
There should be significant changes to the High Court rules and procedures to ensure that the requirements are effective and proportionate. These proposals include, for example, replacing briefs of evidence with witnesses statements (intended to be more limited in scope and more akin to "will say" statements, which are used in other fora such as mediations); requiring that witness statements are served much earlier in the proceeding (pre-discovery); expanding parties' initial disclosure requirements at the outset of a case to include a requirement to provide adverse documents; and a move to a presumption that interlocutory hearings will be heard virtually rather than in person.
Submissions on the proposals in the report are due on 24 February 2023, following which the Rules Committee will decide at its next meeting upon the implementation of its recommendations for changes to the rules.
Virtual participation in dispute resolution
Like almost every other country in the world, Aotearoa New Zealand experienced significant societal and legal disruption as a consequence of the COVID-19 pandemic. The "lockdowns" and other health measures imposed by the New Zealand Government resulted in the resolution of a number of commercial disputes being put on hold (not to mention the thousands of criminal jury trials). However, they also created an opportunity for the judiciary and legal profession to rethink our longstanding approaches to dispute resolution in Aotearoa New Zealand and provided impetus for lasting change.
One of the enduring changes brought about (or at least accelerated) by the COVID-19 pandemic was the Court's increased willingness to move to dealing digitally with parties and their counsel. Whereas, prior to the pandemic, New Zealand Courts continued to insist on paper filing for all but the most peripheral of Court documents, 2020 saw the long-awaited implementation of a "file and pay" electronic platform through which Court documents can be filed, and associated fees paid, electronically.
Courts have also (of necessity) become more adept at dealing with hearings over audio-visual link, and Judges have a greater willingness to move to virtual hearings where warranted (this was seen, for example, during the recent cyclones in Auckland where many commercial matters proceeded online rather than in person).
Other dispute resolution forums such as arbitration and mediation have also seen a greater use of virtual technologies to facilitate the resolution of disputes, including those involving offshore parties. The need to continue to progress the resolution of commercial disputes during the pandemic, coupled with the inability for the most part on parties to meet in person – let alone traverse international borders – necessitated that parties experiment with the effectiveness of engagement through virtual platforms. The success of those experiments is likely to mean that virtual participation in dispute resolution is here to stay.
While Aotearoa New Zealand's dispute resolution systems are comparatively mature, our lawmakers, judiciary and legal profession more broadly have a continued focus on innovation and improvements to ensure that justice through the civil courts and other dispute resolution fora are accessible and effective for all New Zealanders.
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