We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
07 June 2011
The District Court Rules 2009 introduced a new regime for claims in the New Zealand district courts, which radically departed from traditional civil procedure (for further details please see "New district court claims procedure: just, timely and inexpensive"). Almost 18 months after their commencement, it is becoming increasingly clear how dramatically these rules have affected civil litigation.
The District Court is a court of first instance with civil jurisdiction for claims up to NZ$200,000. The objectives of the new rules are to:
Cases are to be dealt with in a way that is proportionate to their importance, the complexity of the issues, the amount of money involved and each party's financial position. The rules introduced a number of significant changes to achieve these objectives. Key changes included:
The approach now taken to pre-trial procedure provides a useful example of how the scheme of the new rules diverges from the traditional approach. Interlocutory applications are governed by Rule 2.49. The only application that may be made before the start of proceedings is for pre-trial discovery. Once proceedings start, further specified applications may be made at any time, such as strike-out applications, directions as to service and applications for injunctions. Other specified applications may be made at or after a judicial directions conference, including applications for discovery and inspection of property.
The recent case of Mikitasov v Lindsay(1) illustrates how the district court has applied Rule 2.49 and exemplifies the change in approach.
Mikitasov concerned interlocutory applications for particular discovery and inspection of property. No judicial directions conference had yet been held and the question arose whether Rule 2.49 imposed a jurisdictional bar on the court considering the applications.
The applicant argued that Rule 2.49 was permissive and that it could apply to the orders sought at any time. Furthermore, the applicant contended that the court had discretion to abridge the time for making applications, and that this discretion should be exercised so that the applicant would be fully informed and able to take part in a judicial settlement conference properly.
In declining the applications, the court agreed with the respondent's submission that the rules have brought about a sea change in civil procedure for district court claims. The sort of interlocutory warfare that used to be fought at different stages of proceedings is now strictly governed by the new rules.
Traditional judicial settlement conferences, that were held shortly before an impending trial and after interlocutory matters have been canvassed at length, were described by the court as not being the type of settlement conference provided for under the rules. The court disagreed with the applicant's submission that parties must be able to go into a judicial settlement conference in a district court proceeding fully armed with the same amount of information that they would have had under the old rules. The intention of the new rules was described as trying to settle matters at an early stage without the expenditure of much money and high costs on discovery, interlocutory matters and avoiding the consequent delays involved. The court considered that both parties were much more likely to have their proceeding dealt with justly, speedily and without great expense if the staggered scheme of interlocutory applications, as set out in Rule 2.49, were followed in all such cases.
Without having to decide the point, the court doubted that there was any residual discretion to override Rule 2.49. The judge commented that the rules are meant to be a complete account and must be interpreted and applied consistently with their spirit. Any departure from the general scheme of the new rules was said to require a striking exception to justify not bringing the parties to a very early settlement conference presided over by a judicial officer and without interlocutory applications, except those expressly stated as being available before the directions conference. Having limited information was not a sufficient reason for departure.
The approach taken by the court in Mikitasov demonstrates one aspect of the new district court procedure in New Zealand. The interlocutory warfare that had become common in traditional civil procedure has made way for a process that is strongly focused on settlement at the earliest possible stage. While this new procedure is attractive in many respects, it restricts a party's ability to determine the manner in which the case proceeds to trial. This restriction must be carefully considered when deciding whether to initiate or defend proceedings in the district court or to litigate in the high court, which still follows the more traditional procedural approach.
The author gratefully acknowledges the assistance of his co-author, Shaun Maloney, in preparing this update.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.