Introduction

On 1 February 2009, a new set of procedural rules of the High Court of New Zealand came into effect.  While there are relatively few changes in substance from the previous rules, there are several amendments which are significant.  Of particular significance for the international legal community are the changes to the rules as to service of persons outside of New Zealand and the increased powers of the Court to grant interim measures in support of overseas judgments.

top

The High Court Rules

The High Court of New Zealand is established under the Judicature Act 1908, which preserved for the Court all the legal, equitable and probate jurisdiction held by the superior English Courts as at 1860. This jurisdiction was originally vested in New Zealand Courts by the Supreme Court Act 1860.  The High Court has both civil and criminal jurisdiction.  The civil procedures of the High Court are governed by schedule 2 of the Judicature Act 1908, known as the High Court Rules.

The rules have been through several major revisions over time, the most recent coming into force on 1 February 2009.  The principal aim of this reworking the rules was not to make major substantive changes to procedure, but rather to re-organise them more logically in order to make them more accessible and easier to understand.  The rules are now presented in 33 parts, and, for ease of reference, are numbered by reference to both part and rule number.  The rules have been expressed in plain English and Latin phrases such as ex parte and have been discarded in favour of their English equivalent.  The references to legal principles by founding case such as Browne v Dunn and Anton Piller have also been removed.

The new rules now apply to both new and ongoing proceedings.  Some of the most important changes affected by the rules are:

• There is a new obligation to file a reply to an affirmative defence (rule 5.62).  If a plaintiff fails to file a reply, it is held to have accepted the defence. 
• Where a party pleads a particular interpretation of a contract, the other party cannot now merely deny the interpretation, but must assert its own interpretation (rule 5.19).
• Provision has been made for the filing and service of certain documents by email.
• The rules as to service outside of New Zealand have been reworked.  A person may be served outside of New Zealand without the leave of the court in the circumstances set out in Rule 6.27.  The grounds are largely the same as they were previously, but some have been clarified or expanded.  The joining of a “necessary or proper party” under 6.27(h) now requires that there is a real issue between the plaintiff and the defendant to be served.  Rule 6.27(j) allows service outside of New Zealand when a claim arises under a statute and either: any act or omission occurred in New Zealand; any loss or damage was sustained in New Zealand; or the enactment expressly or by implication applies to the act or omission outside New Zealand or confers jurisdiction.  This greatly increases the circumstances in which a foreign national may be served overseas on a claim arising under an enactment, particularly in light of the approach taken in the past by the New Zealand courts as to what constitutes “conduct in New Zealand”.
• When a defendant protests the jurisdiction of the Court under rule 6.29, the Court must dismiss the proceeding unless the party effecting service without leave can show that the claim falls within one of the grounds in rule 6.27 and that New Zealand is forum conveniens.  If service outside New Zealand were made with the leave of the Court under rule 6.28, then, to avoid the proceeding being dismissed upon a protest to jurisdiction, the serving party must show that leave was properly granted as New Zealand is forum conveniens.
• A new addition to the rules appears in Part 7, which allows the Court to grant certain forms of interim relief in support of overseas judicial and arbitral proceedings, (rule 7.81).  In order to make such an order, the Court must be satisfied that there is a real connecting link between the subject matter of the relief and the territorial jurisdiction of the Court.
• The new rules also make minor changes to the summary judgment procedure (judgment can no longer be obtained for just part of a claim but the ability to get summary judgment on liability only is retained), and to judicial review (such proceedings may be brought as an ordinary proceeding or a claim in equity under part 18, which allows evidence to be given by agreed statement of facts or by affidavit). 
• More detailed rules have been introduced in parts 32 and 33 relating to freezing and search orders (previously Mareva injunctions and Anton Piller orders).
• The forms specified by the rules have also been updated.

top

Future Amendments

The main guiding principle of the changes to the rules appears to be improving access to justice.  This is evidenced by the logical re-organisation for clarity, the use of plain English and the plan to improve case management in the future.  The new rules are the first stage in a process of the comprehensive review of the procedures of the High Court.  It is anticipated that more substantive changes are to be introduced in the near future, relating to case management, evidence and judicial review. 

top

NEXT »