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The Judicature Act 1908 is 102 years old and has been amended many times. It requires some reorganisation and modernisation. The Law Commission envisages that the final report in on this project will contain a draft Bill or Bills to consolidate the existing legislation dealing with the structure and management of the High Court, District Court, Court of Appeal and Supreme Court, and to separate out other provisions in the Judicature Act. It is not intended that the review will revisit major matters of policy underlying the present legislation.
References to the review in the media
Dom Post via Stuff 'Editorial: Selection of judges a muddled affair' 19 March 2012
NZ Law Society 'Law Commission proposes catch-all Courts Bill' 27 February 2012
TV3 'Proposed changes to how judges are appointed' 24 February 2012
Radio New Zealand 'Law Commission seeks public feedback over changes' 23 February 2012
Radio NZ 'Public to be asked how judges should be appointed' 3 January 2012
Review of the Judicature Act 1908 Terms of Reference
Published 6 Dec 2010The Commission will review the Judicature Act 1908, and other legislation governing the operation of the New Zealand courts of general jurisdiction with a view to creating a consolidated Courts Act and a new Civil Procedure Act and updating and reorganising other provisions of the Judicature Act 1908.
The focus of the review is on reorganisation and modernisation: the Commission does not intend to revisit major matters of policy underlying the present legislation.
The issues to be considered by the Commission will include:(a) the creation of a Courts Act consolidating the legislation governing the District Courts, High Court, Court of Appeal and Supreme Court (for example, consolidating provisions for appointment, including part time appointment);
(b) the creation of a new Civil Procedure Act (incorporating the Rules Committee and judicial review);
(c) the amendment, modernisation or repeal of other provisions of the Judicature Act 1908 including:
• ss 17A-17E (dealing with liquidation of associations)
• ss24A-24G (Commercial List)
• s51B(1)(h) (membership of the Rules Committee)
• ss 83-86 (sureties)
• s 88 (lost instruments)
• s 88B (restriction on institution of vexatious actions)
• s 90 (stipulations not of the essence of contracts)
• s 92 (discharge of debt by acceptance of part in satisfaction)
• s 94 (judgment against one of several persons jointly liable not a bar to action against others)
• ss 94A-94B (payments made under mistake of law)
• s 99 (in cases of conflict rules of equity to prevail)
• s 18 (no jurisdiction in cases of felonies or misdemeanours committed prior to 14 January 1840)
• s 19A (certain civil proceedings may be tried by jury)
• s 23 (Governor-General may appoint special sittings)
• s 55 (absconding debtors)
• s 69 (trial at bar)
NZLC IP29 Review of the Judicature Act 1908: Towards a Consolidated Courts Act
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Available online only.Published 23 Feb 2012
The Law Commission has released a second Issues Paper in its review of the Judicature Act 1908, 'Review of the Judicature Act 1908 – towards a Consolidated Courts Act' (NZLC IP29, 2012). It is seeking submissions and comment on the matters raised in the paper by Friday 27 April 2012. The paper is available for download below as a full document (7MB) or in parts. You can also view the online version.
The aim of the Commission’s review is to consolidate the legislation relating to the New Zealand trial and appellate courts into one clear, modern and coherent statute, by creating a new Courts Bill.
Part 1 of the Issues Paper discusses the current structure of the courts and reviews the present legislative landscape, and how it might change. In addition to a new Courts Bill, the Issues Paper proposes that there should be a standalone Judicial Review (Statutory Powers) Procedure Bill, which updates the language, but does not alter the substance of, the provisions in the Judicature Amendment Act 1972.
Part 2 of the Issues Paper considers matters relating to judges in the trial and appellate courts. While the present process for appointment of judges has delivered good outcomes in terms of the high calibre of appointees, the Issues Paper suggests changes to improve the transparency of the process, and proposes new generic statutory requirements regarding consultation and criteria for judicial appointments.
Part 2 also considers whether there should be a generic provision dealing with contempt in the face of the court, and whether the proposed new Courts Bill should include a provision for ordering costs against a party’s lawyer.
Part 3 of the Issues Paper considers matters relating to the trial and appellate courts, including:
- Should there be one unified District Court in New Zealand, instead of the 63 separately constituted District Courts that exist under the current system?
- Should the right to a civil jury trial in the High Court should be abolished or limited, for example by confining it to matters such as defamation?
- Should the Commercial List be abolished, extended or replaced by a panel system, whereby High Court judges could opt into or be allocated to one of several panels, one of which would be a commercial panel?
Part 4 considers the range of commercial and miscellaneous provisions that currently appear in the Judicature Act 1908.
Part 5 raises issues relating to representation, and considers whether there should there be a new, graduated system for dealing with vexatious litigants.
Submissions for this project closed 27 April 2012.
NZLC IP21 Towards a New Courts Act – A Register of Judges’ Pecuniary Interests?
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Available online only.Published 8 Mar 2011
The Issues Paper sets out the present law in New Zealand, and describes the evolution of schemes of this kind in other jurisdictions. It asks whether the existing common law as to the recusal of judges for pecuniary interests is satisfactory, or whether legislative amendment is required.It seeks views on whether a register of judges’ pecuniary interests is necessary or appropriate in New Zealand, and discusses the issues raised.
The Law Commission is reviewing the Judicature Act 1908, with a view to consolidating the New Zealand legislation relating to the District Court, High Court, Court of Appeal, and Supreme Court, and the judges of those courts, into one new Courts Act. The aim is to make the law more accessible to citizens, more user-friendly, and efficient.
Submissions on this paper closed 1 June 2011.
Press Releases
Release of Law Commission Issues Paper relating to the Review of the Judicature Act 1908
Published 23 Feb 2012The Law Commission is calling for submissions in response to an Issues Paper published today, 'Review of the Judicature Act 1908 – towards a consolidated Courts Act.'
The aim of the Commission’s review is to consolidate the legislation relating to the New Zealand trial and appellate courts into one clear, modern and coherent statute, by creating a new Courts Bill.
The Commission will be consulting with the profession, the judiciary and the public and welcomes any comments or submissions on the Issues Paper. The closing date for submissions is Friday 27 April 2012.