Judicature Act 1908 and consolidation of courts legislation

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 Many of the sections in the Act are outdated, and it contains “hidden” commercial law and judicial review provisions.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)

Towards a New Courts Act – A Register of Judges’ Pecuniary Interests? (NZLC IP21)

The Commission's Issues Paper, Towards a New Courts Act – A Register of Judges’ Pecuniary Interests? (IP21) 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.

Review of the Judicature Act 1908 – Towards a Consolidated Courts Act (NZLC IP29)

The Commission's Issues Paper, Review of the Judicature Act 1908 – Towards a Consolidated Courts Act (IP29).

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.

Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126)

The Commission's Report, Review of the Judicature Act 1908: Towards a New Courts Act (R126) recommends the Judicature Act 1908, the Supreme Court Act 2003 and the District Courts Act 1947 be consolidated into a single, modern, clear Courts Act. The Commission’s review was based on the premise that the fundamental policy underpinning these Acts was sound, but it has made a number of recommendations aimed at improving the clarity of the courts legislation and the efficiency, transparency and accountability of the courts.

The recommendations from R126 were implemented in the Judicature Modernisation Bill which was separated into various different pieces of legislation enacted in 2016. These included the Senior Courts Act 2016, the District Court Act 2016 and the Judicial Review Procedure Act 2016.