This note is not part of the rules, but is intended to indicate their general effect.
These rules amend the High Court Rules. The rules come into force on 1 February 2003. The principal changes relate to—
•the authority of a solicitor to file documents (new rule 41):
•disbursements (new rule 48H):
•representation of minors and mentally disordered persons (new rules 82 to 94B):
•a single procedure for discontinuance that replaces the existing rules for discontinuance and nonsuit (new rules 474 to 476E).
The rules also amend Part 14 of the High Court Rules relating to proceedings in Admiralty. Similar amendments are made to the District Courts Rules 1992 by the District Courts Amendment Rules (No 4) 2002.
Rule 3 changes the office hours of the High Court from 8.30 am to 5 pm to 9 am to 5 pm.
Rule 4 substitutes a new rule 41 in the High Court Rules, which relates to authority to file documents. Under existing rule 41, a solicitor may not file a document unless the solicitor is in practice on his or her own account or a principal in a firm of solicitors. The rule also authorises certain solicitors employed by the Crown Law Office, Public Trust, government departments, and corporations to file documents. The new rule will authorise any solicitor who holds a practising certificate as a solicitor or as a barrister and solicitor to file documents.
Rule 5 inserts a new rule 48H into the High Court Rules, which relates to disbursements. The Third Schedule of the High Court Rules currently lists certain specific disbursements that may be recovered as part of an award of costs. New rule 48H expressly allows disbursements as a recoverable cost. The rule defines disbursements as expenses paid or incurred for the purposes of a proceeding that would ordinarily be charged for separately from professional services in a solicitor's bill of costs. It specifically includes court fees, fees for service of documents, photocopying, and telephone and video link conference expenses. Counsel's fees are expressly excluded. Disbursements may be recovered if they either are of a class approved by the Court or come within 1 of the specific categories. They must also be specific to the proceeding, necessary to the conduct of the proceeding, and reasonable in amount. A Registrar may, if directed, exercise the powers of a Judge or Master under the rule.
Rule 6 substitutes a new rule 55 in the High Court Rules, which relates to the taxation of disbursements, as a consequence of the new rule 48H.
Rule 7 is a transitional rule relating to disbursements. It provides that any question whether disbursements paid or invoiced before the commencement of the rules are to be included in an award of costs is to be decided in accordance with the High Court Rules as in force before the commencement of the rules. However, if the Court considers that a determination on that basis would lead to an unjust result, the question may be decided under new rule 48H.
Rule 8 replaces rules 82 to 94 of the High Court Rules, which relate to representation in proceedings of minors and persons who are mentally disordered, with new rules 82 to 94B. The new rules apply to an incapacitated person, that is,—
The key features of the new rules are as follows:
•an incapacitated person is required to have a litigation guardian as his or her representative in a proceeding in the High Court unless the incapacitated person is authorised to conduct the proceeding in his or her own name (new rules 83 and 84):
•a litigation guardian may be either a person authorised under the Protection of Personal and Property Rights Act 1988 to conduct a proceeding or a person appointed by the Court (new rules 82 and 85):
•a litigation guardian may do anything in relation to a proceeding that could be done by an incapacitated person if he or she were not incapacitated (new rule 87):
•special provisions apply to the service of documents in proceedings in which an incapacitated person is a party (new rule 89):
•the fact that an incapacitated person is represented by a litigation guardian must be disregarded in any award of costs (new rule 90):
•an award of costs may be enforced against an incapacitated person or a litigation guardian or, in certain circumstances, against a former litigation guardian (new rules 91 and 92):
•a litigation guardian is entitled to be reimbursed out of the property of an incapacitated person for any costs paid or incurred by the litigation guardian in conducting the proceeding (new rule 93):
•a litigation guardian may not cease to be a litigation guardian without the leave of the Court and, if a litigation guardian retires, is removed, or dies, no further step may be taken in the proceeding unless a replacement is appointed (new rule 94):
•if a person ceases to be an incapacitated person, subsequent steps in the proceeding must be carried on by that person and he or she becomes liable for all the costs of the proceeding (new rule 94A).
Rules 9, 10, and 11 make consequential amendments to other rules.
Rule 12 is a transitional provision relating to litigation guardians. The new rules relating to litigation guardians apply to an existing proceeding only if the proceeding has not been set down for hearing when the new rules come into force. If the proceeding has been set down for hearing, the new rules will not apply. Instead, the High Court Rules as in force before the commencement of the new rules will continue to apply.
Rules 13 and 14 replace rules 474 to 476 (relating to discontinuance) and rules 489 to 491 (relating to nonsuit) of the High Court Rules with a single procedure for discontinuance. The key features of the new discontinuance procedure are as follows:
•a plaintiff may discontinue a proceeding at any time before judgment or a verdict by filing a notice of discontinuance or by orally advising the Court at the hearing (new rule 475):
•in certain circumstances leave of the Court or the consent of the other parties is required (new rule 476):
•discontinuance brings the proceeding to an end (new rule 476A):
•the Court may set a discontinuance aside if satisfied the discontinuance was an abuse of the process of the Court (new rule 476B):
•a plaintiff who discontinues a proceeding is liable for the defendant's costs (new rule 476C):
•a plaintiff who discontinues a proceeding may not commence another proceeding on the same or substantially the same facts unless the plaintiff pays any costs ordered to be paid to the defendant (new rule 476D).
Rules 15 to 21 amend a number of the High Court Rules relating to proceedings in Admiralty.
Rule 15 removes references to the term
“freight” in rule 772(1)(a), (b), and (e). In the admiralty context, the term
“freight” means monetary consideration. In paragraphs (a), (b), and (e), the term is used as the equivalent of cargo and is inappropriate.
Rule 16 amends rule 776(4)(a) to make it clear that an affidavit in support of an application for a warrant of arrest must, in addition to the information specified in that paragraph, contain other information known to the applicant at the time of the application.
Rule 17 inserts a new rule 776A into the High Court Rules. The new rule restates rule 779(5) of the High Court Rules as a separate rule. The new rule is relocated after rule 776, to which it more directly relates, in line with the observations in McGechan on Procedure (HR779.07). New rule 776A allows the Registrar and parties to an action in rem to apply to the Court for directions relating to property under arrest.
Rule 18 amends rule 779 in 2 respects. Firstly, a request to prevent the release of property under arrest or the payment out of Court of the proceeds of sale of property under arrest, or both, must now be filed in the Central Registry, that is, the Wellington Registry of the Court. Second, a caveator will now be required to serve on the other parties to the action a copy of the caveat entered by the Registrar in the Register of Admiralty Proceedings.
Rule 19 is a consequential amendment as a result of the new rule 776A.
Rule 20 amends rule 783 of the High Court Rules. Rule 783 currently requires an intervener to obtain leave of the Court to intervene where property in an action in rem is under arrest or the proceeds of sale of the property are in Court. The requirement to obtain leave is removed.
Rule 21 amends rule 785 of the High Court Rules by omitting reference to the defence of compulsory pilotage.
Rule 22 inserts a new form 34E (Notice of discontinuance) into the First Schedule of the High Court Rules.
Rule 23 revokes item 12 in the Third Schedule of the High Court Rules. Item 12 relates to disbursements. Disbursements may now be included in an award of costs under new rule 48H.
Rule 24 consequentially amends a number of forms as a result of the change to the office hours of the High Court.