This note is not part of the rules, but is intended to indicate their general effect.
These rules, which come into force on 1 November 2004, amend the High Court Rules. The principal changes to the High Court Rules are—
•new rules relating to discovery (rules 3, 12 to 14, and the new form 26):
•revocation of the rules relating to payment into court combined with new rules 48G and 48GA relating to Calderbank letters (rules 7, 8, 15, 16, and 29):
•new rules relating to the swearing of affidavits and to the giving of evidence outside New Zealand by means of an authenticated deposition (rules 19, 20, and 21).
The other rules make a number of miscellaneous and unrelated changes to the High Court Rules.
Rule 3 inserts a definition of control as the term is used in the new discovery rules.
Rule 4 replaces rule 33 of the High Court Rules with a new rule relating to the format of the first page of originating documents. In future, the first page of every originating document and notice of interlocutory application will be required to state the
“next event date”, that is, the date and nature of a hearing or conference to be held next after filing the document. The first page of the document will also be required to state the name of the Judge or Associate Judge to whom the proceeding has been assigned.
Rules 5 and 6 respectively amend rule 48C and rule 48D of the High Court Rules as a consequence of the new discovery rules and the revocation of the rules relating to payment into Court.
Rule 7 revokes rule 48G of the High Court Rules and replaces it with new rules 48G and 48GA. Rule 48G provides for Calderbank letters, that is, offers to settle made by a party to a proceeding on a without prejudice basis except as to costs. Such an offer may be brought to the attention of the Court and taken into account in determining costs in the proceeding, but for no other purpose. The new rules relating to Calderbank letters should be read in conjunction with the revocation by rule 15 of the rules relating to payment into Court (rules 347 to 368).
The issues relating to revoking the payment into Court rules and expanding the Calderbank procedure are discussed in a consultation paper prepared by the Rules Committee and available on the Rules Committee website http://www.justice.govt.nz/rulescommittee/discussionpapers.htm.
New rule 48G restates the current rule except for subclause (3).
New rule 48GA sets out the effect of Calderbank letters on costs and incorporates subclause (3) of current rule 48G. The principles applicable under new rule 48GA are that—
•the effect on costs of a Calderbank offer is always a matter for the Court's discretion:
•if a party (party A) makes an offer to settle that is better than the judgment obtained by the other party (party B), party A is entitled to costs on steps taken in the proceeding after the offer was made:
•if party A's offer to settle is not better than the judgment obtained by party B, but is close to the value or benefit of that judgment, the offer may be taken into account.
The rule is based on the presumption in favour of awarding costs to a party whose offer to settle was not bettered in the final judgment.
Rule 8 is a transitional rule and provides that the former rule 48G continues to apply to offers made under that rule before the commencement of the new rules.
Rule 9 amends rule 66(5) of the High Court Rules, which restricts access to Court records that relate to certain classes of proceedings. The amendment adds proceedings under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to those classes of proceedings.
Rule 10 amends rule 271 of the High Court Rules as a consequence of the new discovery rules.
Rule 11 replaces rule 285 of the High Court Rules with a new rule. An earlier proposal to revoke rule 285 altogether and allow the common law rules to apply was not proceeded with. There are 2 changes to the former rule. The first, which addresses comments made by the Court of Appeal in Lange v Atkinson  3 NZLR 385 at 404 to 405 (paragraphs  to ) about the absolute nature of the current rule, will allow interrogatories if necessary in the interests of justice. The second is to replace the reference in the current rule to the defence of fair comment with a reference to the defence of honest opinion to bring the rule into line with section 9 of the Defamation Act 1992.
Rule 12 replaces the rules relating to discovery and inspection of documents. The replacement includes the following changes:
•the discovery process is always initiated by an order of the Court made at a case management conference:
•new rule 295 sets out the default terms of discovery orders. One of the default terms continues the existing requirement that parties must discover all documents that relate to a matter in question in the proceeding. The default terms may be modified by the Court:
•new rule 296 requires the solicitors of parties who are to give discovery to ensure the parties understand and fulfil their obligations:
•confidentiality may be claimed for discovered documents and the party may propose that inspection be subject to restrictions. Claims for confidentiality, like claims for privilege, are subject to the determination of the Court:
•costs may be awarded against a party who impedes the discovery and inspection process by discovering irrelevant documents.
Rule 13 revokes form 25 (Notice for Discovery) and substitutes a new form 26 (Affidavit of Documents) for the existing List of Documents as a consequence of the new discovery rules.
Rule 14 is a transitional rule relating to the new discovery rules. The High Court Rules in force before the commencement of the new rules will continue to apply to proceedings in which, before the commencement of the new rules,—
•a party has filed and served a notice for discovery; or
•the Court has made, or a party has applied for, an order for discovery under rule 297.
Rule 15 revokes the payment into Court rules (rules 347 to 368).
Rule 16 is a transitional rule relating to the revocation of the payment into Court rules. Rules 347 to 368 continue to apply to money paid into Court and to admissions of relief made under those rules.
Rule 17 adds a number of proceedings to the list of proceedings in rule 458D of the High Court Rules that may be commenced by originating application under Part 4A. The new proceedings are—
•applications under section 166E of the Customs and Excise Act 1996. Section 166E allows the Court to extend the period during which goods suspected to be tainted property that have been seized under section 166A may be detained:
•applications under section 145A of the Land Transfer Act 1952. Section 145A enables a caveator to apply to the Court, following application to the Registrar-General by a registered proprietor for the lapse of a caveat, for an order preventing the lapse of the caveat:
•applications under sections 128, 131, 167, 168, 179, 181, 182, and 186 of the Personal Property Securities Act 1999. Sections 128 and 131 relate to removal of accessions. Sections 167 and 168 relate to amendment or discharge of the registration of financing statements. Sections 179, 181, and 182 relate to information that a secured party may be required to provide relating to a security interest. Section 186 relates to the service of notices and documents:
•applications under section 47E of the Suppression of Terrorism Act 2002. Section 47E allows the Court to extend the period during which goods suspected to be terrorist property that have been seized under section 47A may be detained.
Rule 18 amends rule 460 of the High Court Rules. Currently, rule 460 entitles a plaintiff, if the defendant does not file a statement of defence, to seal judgment for a liquidated amount plus interest and costs to which the plaintiff is entitled up to the date of sealing. The rule change will require the plaintiff to file a memorandum setting out the amount claimed for costs and disbursements, how the amount has been calculated, and any submissions in support. The amount of costs and disbursements will then be determined by the Registrar.
Rules 19, 20, and 21 relate to the taking of affidavits and to giving evidence outside New Zealand by means of an authenticated deposition. The principal changes are—
•inconsistencies between the Oaths and Declarations Act 1957 and the High Court Rules are removed. Currently, section 10 of the Act authorises a Commonwealth representative to take an affidavit in a foreign country while rule 524 requires that he or she must be authorised under the law of that foreign country to administer an oath. In addition, section 12 of the Act authorises members of the armed forces to take affidavits while the rules make no provision for this to occur:
•affidavits may be taken in New Zealand by a person enrolled as a barrister and solicitor of the High Court whether of not the person holds a practising certificate. They may also be taken by Registrars and Deputy Registrars of District Courts:
•the distinction between persons authorised to take affidavits in Commonwealth countries and foreign countries is removed. An affidavit may be taken in countries outside New Zealand by a Commissioner of the High Court, a person with authority to administer oaths under the local law, or a person authorised by a Judge:
•new rules provide for the evidence of a witness overseas to be in the form of an authenticated deposition.
Rule 22 amends rule 540 of the High Court Rules relating to the giving of written judgments. Written judgments must be endorsed by the Registrar with a date and time directed by the Judge or, in the absence of a direction, with a date and time nominated by the Registrar (delivery time). A written judgment is given at the delivery time so endorsed. After a judgment is endorsed, the Registrar must endeavour to notify the parties of the delivery time. Parties may request the Registrar to fax or email the judgment or make a copy available for collection. However, if a party who has given an address for service does not make a request, the Registrar must send a copy of the judgment by post to that party.
Rule 23 amends rule 541 of the High Court Rules in 2 respects. First, except with the leave of the Court, a judgment may not be sealed until any application for recall under rule 542 of the High Court Rules has been determined. Second, the requirement in the current rule 542 (which relates to when a judgment takes effect) to serve a sealed copy of a judgment is brought into rule 541. A sealed copy of the judgment must be served on every party who has given an address for service and on any other person who, although not a party, is affected by the judgment. The heading to the rule is also changed to reflect the requirement for service.
Rule 24 replaces rule 542 of the High Court Rules with a new rule. The effect of the new rule is to make 2 exceptions to the principle that no step may be taken on a judgment until it has been sealed. The first is that the Court may direct that a step may be taken before sealing. The second is that a party may commence an appeal under the Court of Appeal (Civil) Rules 1997 before sealing as long as the party takes steps to have the judgment sealed promptly after the appeal is brought. The power to recall a judgment before sealing, formerly in rule 540(6), is brought into the new rule.
Rule 25 adds a new subclause (2) to rule 827 of the High Court Rules. The amendment will require a creditor who claims costs on the issue of a bankruptcy notice to state in the notice the amount of costs claimed. This will overcome the practical problem that the creditor may be unable to obtain payment of the costs of preparation, issue, and service of the notice if the amount of the judgment debt is paid before a hearing.
Rule 26 adds a new subclause (3) to rule 831 of the High Court Rules. The amendment is similar to the amendment to rule 827 and will require a petitioning creditor to include in the summons to debtor the amount claimed for costs.
Rule 27 substitutes a new form of bankruptcy notice (form 90) and a new form of summons to debtor (form 94) in line with the changes to rules 827 and 831 of the High Court Rules.
Rule 28 amends forms 6, 13, 64C, 64O, 64P, 64Q, and 64R in the Schedule 1 Rules. These forms contain advice to defendants who may be either individuals or companies (forms 6, 13, 64O, 64P, 64Q, and 64R) or only companies (form 64C). A company cannot commence or carry on a proceeding except by a solicitor and cannot, except in exceptional circumstances, appear at a hearing except by counsel (see Re G J Mannix  1 NZLR 309; Radford v Freeway Classics Ltd  BCLC 445; and Time Ticket International Ltd v Broughton  2 NZLR 176. The changes to the forms make this clear.
Rule 29 revokes a number of forms as a result of the revocation of the payment into Court rules (see rule 15).
Rule 30 replaces, in line with changes made by the Judicature Amendment Act 2004, references in the High Court Rules to the judicial office of Master with references to Associate Judge.