The Judicature Act 1908 is over one hundred years old and has been amended many times. Many of the sections in the Act are outdated, and it contains “hidden” commercial law and judicial review provisions. The focus of the Law Commission’s review was on reorganisation and modernisation. The Report recommends the District Courts Act 1947, the Judicature Act 1908 and the Supreme Court Act 2003 be consolidated into a single, modern, clear Courts Act. It also contains a number of recommendations for the amendment of current legislative provisions, including those relating to the appointment of judges, judicial recusal processes, acting judges, civil jury trials, the establishment of specialist panels of judges in the High Court, the participation of persons who are not parties to proceedings, and vexatious actions.
The 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)