Supplementary Order Paper No 197

No 197

House of Representatives

Supplementary Order Paper

Tuesday, 23 August 2016

Judicature Modernisation Bill

Proposed amendments for the consideration of the Committee of the whole House

Key to symbols used

text inserted

text deleted

Hover your cursor over an amendment for information about that amendment. Download the PDF version to see this information in a form that can be printed out.

Explanatory note

This Supplementary Order Paper makes various changes to the Judicature Modernisation Bill. These include minor or technical changes, consequential and consistency changes, updates to consequential amendments, and other changes to improve drafting. The more significant changes are explained below.

Clause 2 currently provides for the provisions of the Bill to come into force by Order in Council (and different commencement dates may be appointed for different provisions). The Supplementary Order Paper amends clause 2

  • to bring into force, on the day after the Royal assent,—

    • clause 4 (in so far as it relates to the High Court Rules), new clause 144A, and clauses 145 to 152. :

      • New clauses 144A and 151 provide for the High Court Rules, as in force at the date of the Royal assent, to continue in force as part of Part 1 of the Bill but be published under the Legislation Act 2012, as the High Court Rules 2016, as if they were a statutory instrument. These changes have no substantive effect but have the practical effect of making the rules more accessible for users. Schedule 1, which currently sets out the High Court Rules as in force when the Bill was introduced, is therefore proposed to be deleted (see the provision and note inserted at Schedule 1).

      • Clauses 145 to 150 are powers for making rules of practice and procedure for the High Court, Court of Appeal, and Supreme Court and clause 152 continues the Rules Committee for the purposes of the Senior Courts, District Court, and the Criminal Procedure Act 2011. These provisions enable the High Court Rules 2016 to be amended under clause 145 and the equivalent provisions of the Judicature Act 1908 (section 51A to 51F) are therefore repealed (new clause 199AA).

    • clauses 171 and 419, which provide for the extent to which a person may have access to the court information of a senior court and the court information of the District Court, judicial information, and Ministry of Justice information as described in Schedules 2 and 5:

    • clauses 171A and 419A, which provide for the Ministry of Justice to share permitted information (listed in Part B of Schedule 2 and Part B of Schedule 5) with other agencies under approved information sharing agreements under the Privacy Act 1993:

    • Schedule 2, which specifies categories of information for the purposes of clauses 171 and 171A:

    • Schedule 5, which specifies categories of information for the purposes of clauses 419 and 419A:

    • Schedule 3A, which amends other enactments consequential on new clause 151 and the publication of the High Court Rules as the High Court Rules 2016:

  • to bring into force, on 1 March 2017, all remaining provisions of the Bill except those concerning Part 4:

  • to bring into force, on 1 January 2018,—

    • Part 4, which provides for the interest that is to be awarded for delay in the payment of money claims in civil proceedings and standard provisions for calculating interest payable on amounts of money under other enactments:

    • subpart 7 of Part 6, which provides for the Copyright Tribunal’s powers to award interest on amounts of money, including how interest must be calculated:

    • new Schedule 9AAA, which contains transitional provisions relating to interest on money claims for proceedings already commenced and transitional provisions relating to amendments to other enactments:

    • new Schedule 9AA, which provides standard provisions for calculating interest to apply for the purposes of other enactments:

    • new Schedule 9, which consequentially amends enactments that currently provide for interest calculated by reference to section 87 of the Judicature Act 1908.

In Parts 1 to 6, including the remaining schedules of the Bill,—

  • new clause 26A is inserted to carry over section 26Q of the Judicature Act 1908 and expressly provide that an Associate Judge has the same immunities as a Judge of the High Court:

  • clause 38(9), which provides for compensation to be awarded to a defendant who is arrested as an absconding debtor but subsequently has judgment awarded in his or her favour in the proceeding relating to the debt, is amended to increase from $2,000 to $10,000 the maximum amount of compensation that a Judge may award the defendant so that this is consistent with the equivalent provision applying in the District Court (clause 392(9)):

  • clause 48, which provides for the assignment of Judges to a division of the Court of Appeal, is deleted as it is redundant now that there are no longer distinct criminal and civil divisions of that court:

  • clause 49 is amended to carry over the existing provision enabling a single Judge of the Court of Appeal to review a decision of the Registrar made within the civil jurisdiction of the court under a power conferred on him or her by a court rule. However, to reflect the additional statutory powers conferred on Registrars by clause 64(1)(b), the amendment enables a single Judge to review a Registrar’s decision made in the exercise of those powers also:

  • clause 66 is amended to retain express reference to the Supreme Court hearing appeals on important legal matters, including matters relating to the Treaty of Waitangi:

  • clauses 110, 111, and 112 are amended to ensure that an acting Judge of the Supreme Court, Court of Appeal, or High Court may be appointed by the Governor-General in anticipation of a vacancy or need:

  • new clauses 136A, 218A, 569A, and 569B are inserted, and clause 543 is amended, to provide that an acting Judge is not entitled to a government-funded subsidy on his or her contribution to a superannuation fund unless when appointed an acting Judge he or she is a permanent Judge of a court (in which case the entitlement is to a government subsidy on the contribution to the Judge’s superannuation that relates to the permanent office that the Judge continues to hold):

  • clauses 167 and 401, new section 222B in clause 544, new section 288B in clause 565, and new section 98B in clause 571 are deleted to remove the requirement that final written judgments of a court must be published on the Internet, leaving the publication of judgments a matter for the judiciary to determine as currently:

  • clauses 171B and 419B, which provide that a requirement to notify a registration authority of certain information is not affected by any suppression order imposed by the court, are amended to clarify that a requirement of this kind is also not affected by suppression orders imposed by the operation of law (for example, under section 201 of the Criminal Procedure Act 2011):

  • clause 421 is replaced by new clauses 421 to 421T, which set out in more detail how references to District Courts, Family Courts, Youth Courts, and Disputes Tribunals are to be read on the commencement of Part 2 of the Bill when there will be only 1 District Court with divisions known as the Family Court, Youth Court, and Disputes Tribunal. Consequential amendments to the District Courts Rules 2014, Family Courts Act 1980, Family Courts Rules 2002, and Disputes Tribunal Act 1988 are also made:

  • clause 445 is amended, and new clause 445A is inserted, to include an additional purpose of Part 5, which is to provide standard provisions for calculating sums of interest on amounts under other enactments using the Internet site calculator. Under new clause 470AA and new Schedule 9AA, the standard clauses set out in new Schedule 9AA apply where an enactment provides for interest to be calculated in accordance with that schedule:

  • clause 467 is amended to provide for regulations to be made prescribing when a judgment debt or an instalment of payment of a judgment debt is paid or deemed to be paid for the purpose of calculating interest under Part 4:

  • clause 475 is amended to include the ability to limit, by Order in Council, the application of Part 5 (which enables the use of electronic technology in court and tribunal proceedings) to a court or tribunal located in a particular place, or to a particular jurisdiction of a court or tribunal located in a particular place, or to any specified class of persons:

  • clause 527 (which replaces section 8 of the Courts (Remote Participation) Act 2010), which currently requires the use of audiovisual links (AVL) for sentencing hearings, is amended to provide that the use of AVL in such hearings is at the discretion of the Judge if certain criteria are met:

  • clause 579 is deleted as the Judicature Act 1908 (except section 87) is repealed by clause 179. Section 87 is repealed by clause 470 on 1 January 2018:

  • clause 580 and Schedule 11 are deleted as relevant consequential amendments are now incorporated in Part 6:

  • new Schedule 1A is inserted as a consequence of the High Court Rules being continued after the Royal assent and the rest of the Bill (other than the provisions relating to interest on money claims) coming into force on 1 March 2017. New Schedule 1A consequentially amends the High Court Rules 2016 on 1 March 2017 to replace references to legislation repealed on that date and take account of substantive changes concerning the senior courts and the District Court that also come into force on that date:

  • Schedules 2 and 5, which describe for the purposes of Part 1 (clauses 171 and 171A) and Part 2 (clauses 419 and 419A) respectively, court information, Ministry of Justice information, and judicial information that may be accessed or shared, are amended to—

    • include as further items of permitted information that may be shared between agencies protection orders made under the Sentencing Act 2002, non-contact orders made under the Victims’ Orders Against Violent Offenders Act 2014, and public protection orders made under the Public Safety (Public Protection Orders) Act 2014:

    • clarify that case-level information must exclude any personal identification details so that it is not possible to work out the identity of any person from the published information or data:

  • Schedule 3, which sets out consequential amendments relating to Part 1 of the Bill, is updated:

  • Schedule 6, which sets out consequential amendments relating to Part 2 of the Bill, is updated:

  • Schedule 8, which sets out consequential amendments relating to Part 3 of the Bill, is updated:

  • Schedule 9, which sets out consequential amendments relating to Part 4 of the Bill is updated.

Departmental disclosure statement

The Ministry of Justice considers that a departmental disclosure statement is not required to be prepared for this Supplementary Order Paper.

The Honourable Minister, in Committee, to propose the amendments shown in the following document.

Hon Amy Adams

Judicature Modernisation Bill

Government Bill

178—2

Contents

1Title
2Commencement
3Purposes
4Interpretation
5This Part binds the Crown
6High Court continued
6ANumber of High Court Judges
7Seal
8Powers of High Court to be exercised by High Court Judges
9Sessions of High Court and adjournments
10Court offices
11Jurisdiction of High Court
12Power to award damages as well as, or in substitution for, injunction or specific performance
13Jurisdiction in relation to persons who lack competence to manage their affairs
14When civil proceeding to be tried before Judge alone
15Certain civil proceedings may be tried by High Court Judge with jury
16Question of foreign law must be decided by High Court Judge
17Proceedings in place of writs
18Panels
19Associate Judge may exercise certain powers of High Court
20Ancillary powers of Associate Judge
21Rules conferring on Associate Judges specified jurisdiction and powers of High Court Judge in chambers
22Application of provisions relating to witnesses and contempt
23No power to order committal, attachment, or arrest
24Power to act as referee
25Transfer of proceeding to High Court Judge
26Appeals against decisions of Associate Judges
26AImmunity of Associate Judges
27Jurisdiction of High Court Judges not affected
28Power to appoint Commissioners
29Effect of oath, affidavit, or affirmation
30Revocation of commission
31Appointment of Registrars, Deputy Registrars, and other officers of High Court
32Powers of Registrars
33Sheriffs
34Powers of Sheriffs
35Sheriff not to act as lawyer or agent
36Service of process when Sheriff disqualified
37Persons arrested by Sheriffs may be committed to prison at once
38Arrest of defendant about to leave New Zealand
39Witness not required to attend hearing of civil proceeding unless allowances and expenses paid
40Failure of witness to attend
41Refusal to give evidence
42High Court may require person to undergo medical examination
43Court of Appeal continued
44Seal
45Court of Appeal to sit in divisions
46Composition of divisions
48Assignment of Judges to divisions
49Powers exercisable by Judges
51Court of Appeal to sit as full court in certain cases
52Cases of sufficient significance for full court
53Authority of High Court Judges to act as Judges of Court of Appeal
54Judgment of Court of Appeal
55Sessions of Court of Appeal
56Adjournments
57Jurisdiction
58Court of Appeal may remit proceeding to High Court
59Judgment of Court of Appeal may be enforced by High Court
60Transfer of civil proceeding from High Court to Court of Appeal
61Appeals against decisions of High Court on appeal from District Court, Family Court, or Youth Court
62Reasons for granting or refusing leave to appeal
62AProcedure if Judges absent
63Appointment of Registrar, Deputy Registrar, and other officers of Court of Appeal
64Powers of Registrar and Deputy Registrar
65Interpretation
66Supreme Court continued
67Seal
68Appeals against decisions of Court of Appeal in civil cases proceedings
69Appeals against decisions of High Court in civil proceedings
70Appeals against decisions of other courts in civil proceedings
71Appeals against decisions in criminal proceedings
72Procedural requirements
73Appeals to be by leave
74Criteria for leave to appeal
75No direct appeal from court other than Court of Appeal unless exceptional circumstances established
76Applications for leave
77Court to state reasons for refusal to give leave
78Appeals to proceed by way of rehearing
79General powers
80Power to remit proceeding
81Exercise of powers of court
82Orders and directions on interlocutory applications may be made or given by 1 Judge
83Presiding Judge
84Procedure if Judges absent
85Judgment of Supreme Court
86Decisions of Supreme Court may be enforced by High Court
87Appointment of Registrar, Deputy Registrar, and other officers of Supreme Court
88Powers of Registrar
89Head of New Zealand judiciary
90Head of Supreme Court
91Head of Court of Appeal
92Head of High Court
93Attorney-General to publish information concerning judicial appointment process
94Eligibility for appointment as Judge or Associate Judge
95Eligibility for appointment as Court of Appeal Judge
96Eligibility for appointment as Supreme Court Judge
97Eligibility for appointment as Chief High Court Judge
98Eligibility for appointment as President of Court of Appeal
99Eligibility for appointment as Chief Justice
100Judges appointed by Governor-General
101Appointment as permanent Judge
101AHigh Court Judge or Associate Judge may not hold lower judicial office
101BCourt of Appeal Judge continues as Judge of High Court
102Supreme Court Judge continues as Judge of High Court but no other court
104Terms and conditions of appointment not to be changed without consent
105Attorney-General may authorise Judges to sit part-time
106Acting Chief Justice
107Acting President of Court of Appeal
108Acting Chief High Court Judge
109Appointment of acting Judges of Supreme Court by Chief Justice
110Appointment of acting Judges of Supreme Court by Governor-General
111Appointment of acting Judges of Court of Appeal
112Appointment of acting Judges of High Court
113Appointment of acting Associate Judges
114Requirements before Attorney-General gives advice on appointment of acting Judge
115Term of appointment of acting Judges appointed by Governor-General
116Term of appointment of acting Associate Judges
117Jurisdiction, powers, protections, etc, of acting Judges
118Conclusive proof of authority to act
119Chief Justice most senior Judge
120Seniority of Supreme Court Judges
121Seniority of Court of Appeal Judges
122Seniority of High Court Judges
123Permanent Judges senior to acting Judges
124Seniority of acting Judges
125Seniority of Associate Judges
126Tenure of Chief Justice
127Tenure of President of Court of Appeal
128Tenure of Chief High Court Judge
129Tenure of Supreme Court Judges, Court of Appeal Judges, High Court Judges, and Associate Judges
130Resignation
131Governor-General must approve certain resignations
132Judges to retire at 70 years
133Removal from office
134Salaries and allowances of permanent Judges and Associate Judges
135Salaries and allowances of part-time Judges
136Salaries and allowances of acting Judges
136ASuperannuation of acting Judges
137Superannuation or retiring allowances of Associate Judges
138Higher duties allowance
139Salary of Judge not to be reduced
140Judge not to undertake other employment or hold other office
141Protocol relating to activities of Judges
142Judge not to practise as lawyer
143Purpose of rules of practice and procedure
144High Court Rules
144AHigh Court Rules part of Act
145Rules of practice and procedure generally
146Rules of practice and procedure of High Court
147Rules of practice and procedure of Court of Appeal and Supreme Court
148Rules conferring specified jurisdiction and powers of High Court Judge on Registrars and Deputy Registrars
149Rules of practice and procedure under other Acts
150Power to prescribe procedure on applications to High Court, Court of Appeal, or Supreme Court
151Publication of High Court Rules under Legislation Act 2012
151Publication of High Court Rules under Legislation Act 2012
152Rules Committee
153Regulations
154Regulations providing for waiver, etc, of fees
155Postponement of fees
156Manner in which section 154 or 155 applications to be made
157Review of Registrar’s decision concerning fees
157AJudge or Registrar may waive certain fees
158Jurisdiction of court to award costs in all cases
159Court of Appeal and Supreme Court may appoint technical advisers
160Appointment and other matters
161Contempt of court
162Judge may make order restricting commencement or continuation of proceeding
163Grounds for making section 162 order
164Terms of section 162 order
165Procedure and appeals relating to section 162 orders
166Reserved judgments
167Final written judgments to be published on Internet
168Recusal guidelines
170Memorials of judgments obtained out of New Zealand may be registered
171Access to court records information, judicial information, or ministry Ministry of Justice information
171ASharing of permitted information with other departments
171BRequirements that Registrars disclose information
172Fees to be paid into Crown Bank Account
173Judicial officers to continue in office to complete proceedings
174Costs where intervener or counsel assisting court appears
175Judgment against one of several persons jointly liable not a bar to action against others
176Rules of equity prevail over rules of common law
178Discharge of juror or jury
179Repeals
180Consequential amendments
181Regulations continued
182Rules continued
183Transitional provisions
184Purposes
185Interpretation
186Part binds the Crown
187Application of this Part
188District Court
189Seal
190Divisions of court
191Court offices
192Appointment of Judge
193Maximum number of Judges
194Appointment of Judge to sit in other jurisdiction or division of court
195Appointment of jury trial Judges
197Who is eligible for appointment as Judge
198Tenure of Judges
200Restrictions on Judges
201Protocol relating to activities of Judges
202Powers of Judges
203Exercise of jurisdiction
204Additional powers of Judges
205Other functions of Judges
206Immunity of Judges
207Chief District Court Judge
208Tenure of Chief District Court Judge
209Acting Chief District Court Judge
210Resignation
211Retirement
212Removal
213Attorney-General may authorise permanent Judge to sit part-time
214Appointment of acting Judges
215Term of appointment of acting Judge
216Acting Judge must be authorised to act
217Remuneration of Chief District Court Judge, principal Judges, and permanent Judges
218Remuneration of part-time or acting Judge
218ASuperannuation of acting Judges
219Reduction in remuneration of Chief District Court Judge or principal Judge
220Judge’s remuneration must not be reduced
221Appointment of Community Magistrate
222Who is eligible for appointment as Community Magistrate
223Functions and powers of Community Magistrate
224Tenure of Community Magistrate
225Retirement, resignation, and removal
226Remuneration of Community Magistrate must not be reduced
227Restrictions on Community Magistrates
228No proceeding against Community Magistrate unless he or she acted without jurisdiction
229No proceeding against Community Magistrate to be commenced in District Court
230Onus of proof
231Plaintiff may be ordered to give security for costs
232Indemnity to Community Magistrate
233Chief Community Magistrate
234Appointment of Chief Community Magistrate
235Who is eligible for appointment as Chief Community Magistrate
236Tenure of Chief Community Magistrate
237Functions of Chief Community Magistrate
238Acting Chief Community Magistrate
239Appointment of acting Community Magistrates
240Term of appointment of acting Community Magistrate
241Acting Community Magistrate must be authorised to act
242Remuneration of Chief Community Magistrate and Community Magistrates
243Remuneration of acting Community Magistrate
244Appointment of Registrars, Deputy Registrars, and other officers of court
245Powers of Registrars and Deputy Registrars
246Registrar must hold record of proceedings
247Admissibility of document required to be held by Registrar
248Appointment of bailiffs
249Appointment of deputy bailiffs
250Powers and duties of bailiffs
251Powers, etc, of deputy bailiffs
252Misconduct of officers
253Officer of court must not act as lawyer in court proceedings
254Sessions of court and adjournments
255Criminal jurisdiction of court
256General civil jurisdiction
257Money recoverable by statute
258Jurisdiction in equity
259Jurisdiction in relation to partnerships
260Exceptions
261Jurisdiction to recover land in certain cases
262Abandonment of part of claim to give court jurisdiction
263Extension of jurisdiction by consent
264Jurisdiction exclusive of interest
265Causes of action not to be divided
266Remedies
267Proceedings against absent defendant
268Transfer of proceeding in which amount or value of claim exceeds $90,000
269Transfer of proceeding in which amount or value of claim does not exceed $90,000
270Procedure for transfer of proceeding
271High Court Judge may order removal of proceeding into High Court
272Transfer of proceeding if no jurisdiction
273Transfer of proceeding to High Court if counterclaim exceeds jurisdiction
274Transfer of summary judgment applications to High Court
275Determination of question of law by High Court
276Transfer of proceeding from High Court to District Court
277Procedure on transfer of proceeding to District Court
278Costs in cases transferred
279Trustees, executors, and administrators
280Minors
281Persons jointly liable
282Bankruptcy of plaintiff
283Witness expenses
284Offence to disobey witness summons
285Examination of witnesses and service of process overseas
286Who may take affidavit
287Pre- discovery
288Discovery against non-party after proceeding commenced
289Right to appear
290Trial by Judge
291Equity and good conscience
292Judge must record various matters
293Reference to arbitration
294Application to set arbitral award aside
295Judge may refer matter to Registrar or referee
296Judge may refer matter of account to Registrar, etc
297Reference by consent
298Finality of judgments and orders
299Technical defects do not invalidate judgment, order, or proceeding
300Payment of judgments or orders
301Stay if party unable to pay judgment amount
302Removal of judgment of District Court into High Court
303Proceeding in High Court on judgment or order of District Court
304Removal of judgment or order of High Court into District Court
305Interpretation
306General right of appeal
307No appeal if agreement that decision would be binding
308Security for appeal
309Appeals to be by way of rehearing
310Powers of High Court on appeal
311Repayment of judgment amount and interest
312Enforcement proceedings
313Types of enforcement proceeding
314Judgment may be enforced in any office of District Court
315Judgment or order for payment of money
316Judgment or order in nature of injunction, etc
317Discovery order
318Judgment or order for recovery of land
319Judgment or order for delivery of specific chattels
320Time when enforcement proceedings may commence: general rule
321Exception to general rule: attachment orders
322Restriction on enforcement of judgment that is more than 6 years old
323No enforcement of order for payment by instalments without default
324Proceeding on cross-judgment
325Stay of enforcement proceeding for inability to pay
326Stay of proceeding on appeal
327Filing of financial statement
328Notice to complete financial statement
329Court to request information about judgment debtor’s means
330Court may order hearing if information about judgment debtor’s means not provided, etc
331Application for financial assessment hearing
332Power to arrest judgment debtor or officer
333Financial assessment hearing
334Registrar may exercise jurisdiction of court under sections 329, 330, 331, 333, 335, 337, and 343
335Orders by court following filing of financial statement, etc
336Interpretation
337Attachment orders
338Content of attachment orders
339Effect of attachment orders
340Liability of employer
341Wrongful treatment of employee
342Extent to which attachment orders bind the Crown
343Variation, suspension, and discharge of attachment orders
344Review of Registrar’s decision
345Contempt of enforcement proceedings
346Process for dealing with application for contempt of enforcement proceedings
347Warrant to arrest may be issued if judgment debtor cannot be served or fails to appear at hearing
348Judgment debtor doing community work is discharged on payment
349Warrant to seize property
350Immobilisation of motor vehicles
351Disposal of securities seized
352Offence of rescuing goods seized
353Period to elapse before sale
354Goods must be sold by public auction unless court orders otherwise
355Purchaser from bailiff acquires goods free of all ownership and other proprietary interests
356Immunity of bailiff who sells without notice of claim to goods
357Goods seized under warrant to seize property that are subject to security interest
358Personal property securities register to be checked
359Priority of High Court and District Court executions
360Sale of goods subject to third party claim
361Third party claim process
362Garnishee proceedings
363Money held on deposit or in account
364Application of section 363
365Liability to deliver or disclose deposit book, deposit receipt, etc
366Charging orders
367Variation or discharge of charging order
368Effect of charging order
369Charging order in respect of land expires after 2 years
370Registration of charging order over land or mining privilege
371Removal of charging order into High Court
372Issue and execution of order or warrant to detain in prison
373Form of warrant to detain
374Person to be detained in prison
375Power of Judge to order discharge
376Warrant for recovery of land
377Time for executing warrant of for recovery of land
378Effect of possession given under warrant for recovery of land
379Irregularity or informality in execution of warrant
380Person illegally obtaining warrant liable for trespass
381Immunity of Judge, etc, when warrant illegally obtained
382Execution of warrant may be stayed on giving bond
383Effect of judgment for tenant or occupier in proceeding for trespass
384Warrant for recovery of chattels
385Further proceedings if chattels not recovered
386Neglect by bailiffs
387Liability of court officer for irregularity or informality in execution of warrant
388Liability of bailiff acting under warrant
389Warrant is proof of court’s authority
390Service of documents under this Part
391Service provisions modified in special cases
392Arrest of debtor about to leave New Zealand
393Interpleader
394Contempt of court
395Judge may make order restricting commencement or continuation of civil proceedings
396Grounds for making section 395 order
397Terms of section 395 order
398Procedure and appeals relating to section 395 orders
399Recusal guidelines
400Information regarding reserved judgments
401Final written judgments to be published on Internet
402Payment and recovery of fees
403Enforcement of fines
404Fines and fees must be paid to Crown Bank Account
405Prescribed documents to be sealed
406Proof of service of documents
407Subtenant to give notice of proceeding to subtenant’s immediate landlord
408No privilege for lawyers
409Constable must assist court or Judge
410Keeper of prison must detain prisoner on request of bailiff or constable
411Rules of practice and procedure
412Application of rules
413Regulations
414Regulations providing for waiver, etc, of fees
415Regulations providing for postponement of fees
416Chief executive may approve forms
417Reviews of decisions of Registrars concerning fees
418Application of Part
419Access to court records information, judicial information, or ministry Ministry of Justice information
419ASharing of permitted information with other departments
419BRequirements that Registrars disclose information
419CJudge or Registrar may waive certain fees
420District Courts Act 1947 repealed
421Consequential amendments
421References to District Courts
421AReferences to Family Courts
421BReferences to Youth Courts
421CReferences to Disputes Tribunals
421DAmendments to District Courts Rules 2014
421EName of principal rules changed
421FRule 1.1 amended (Title)
421GAmendments to Family Courts Act 1980
421HName of principal Act changed
421ILong Title repealed
421JSection 1 amended (Short Title and commencement)
421KNew section 1A inserted (Purpose)
1APurpose
421LAmendments to Family Courts Rules 2002
421MName of principal rules changed
421NRule 1 amended (Title)
421OAmendments to Disputes Tribunals Act 1988
421PName of principal Act changed
421QLong Title repealed
421RSection 1 amended (Short Title and commencement)
421SNew section 1A inserted (Purpose)
1APurpose
421TOther consequential amendments
422Transitional, savings, and related provisions
423Purpose of this Part
424Interpretation
425Meaning of statutory power
426Part binds the Crown
427This Part subject to certain provisions of Employment Relations Act 2000
428Application for judicial review
429Respondents
430Respondent to file statement of defence
431Proceedings for mandamus, prohibition, or certiorari must be treated as application for review
432Proceedings for declaration or injunction may be treated as application for review
433Case management conference
434Orders and directions
435Interim orders
436Relief that court may grant
437Court may direct reconsideration of matter to which statutory power of decision relates
438Discretion of court to refuse to grant relief
439Discretion of court to refuse to grant relief for defect in form or technical irregularity
440Appeals
441References in enactments
442Repeal
443Transitional provision
444Consequential amendments
445Primary purposePurpose
445AAdditional purpose
446Application
447Interpretation
447ATransitional, savings, and related provisions
448Part binds the Crown
449Period for mandatory award of interest
450Mandatory award of interest
451Initial amount
452Calculation of interest awarded under section 450
453Internet site calculator
454Calculation if judgment debt paid in full in 1 payment
455Calculation if judgment debt paid in instalments
456References to paying debt in full or paying instalments
457Discretion if money judgment expressed in foreign currency
458Discretion in special circumstances
459No interest to be awarded on penalty
460Restrictions on award of interest for certain specified periods
461No interest to be awarded for period contrary to provisions of another Act
462Award of interest if contract makes relevant provision
463Rules of interpretation for contractual provisions
464Special provision for interest or lump sum relating to contracts entered into before commencement
465Court may not award interest unless procedural requirements complied with
466Preservation of common law and equitable rights
467Regulations
468Transitional provisions for civil proceedings already commenced in senior court
469Transitional provision for civil proceedings already commenced in District Court
470AACalculation of interest for amounts under other enactments
470Amendments to other enactments
471Purpose
473Interpretation
474Part binds the Crown
475Part applies to certain courts and tribunalsApplication
476Permitted documents may be used
477Consent may be inferred from person’s conduct
478Presumption of validity
479Certain documents to be treated as permitted documents
480Requirement for information to be in writing
481Requirement for information to be recorded in writing
482Requirement for information to be given in writing
483Requirement to provide multiple copies of information
484Requirement to provide information in certain form
485Requirement for signatures
486Requirement for signatures of witnesses
487Requirement for seals
488Presumption about reliability of electronic signatures
489Requirement to retain document or information that is in paper-based form
490Requirement to retain information that is in electronic form
491Extra conditions for electronic communications
492Requirement to provide or produce information that is in paper-based form
493Requirement to provide or produce information that is in electronic form
494Requirement to provide access to information that is in paper-based form
495Requirement to provide access to information that is in electronic form
496Requirement relating to content of information
497Copyright in works in permitted documents
498Time of dispatch of permitted documents
499Time of receipt of permitted documents
500Place of filing
501Filing fees payable for permitted documents
502Regulations
503Amendment to Electronic Identity Verification Act 2012
504Amendment to Electronic Transactions Act 2002
504AAmendment to Resource Management Act 1991
505Transitional provisions
506Principal Act
507Section 2 amended (Interpretation)
508New section 6A inserted (Minister of Justice to appoint body to resolve certain matters)
6AMinister of Justice to appoint body to resolve certain matters
509Schedule 1 amended
510Principal Act
511New section 96A inserted (Actions on other lost instruments)
96AActions on other lost negotiable instruments
512Principal Act amended
513New section 136A inserted (Jurisdiction of District Court)
136AJurisdiction of District Court
514Principal Act
515Section 434 amended (Principal Youth Court Judge)
516Principal Act
517Section 2 amended (Interpretation)
518Section 235 amended (Interpretation)
519Section 240 amended (Interpretation)
520New section 240B inserted (Liquidation of associations)
240BLiquidation of associations
521New Schedule 10 11 inserted
521AAmendments to Crown Entities Act 2004
521BAmendments to Customs and Excise Act 1996
522Principal Act
523New section 4A inserted (Stipulations not essence of contracts)
4AStipulations not essence of contracts
524Principal Act
525New section 222A inserted (Power to award interest)
222APower to award interest
526Principal Act
527Section 8 replaced (Use of audio-visual links in criminal procedural matters)
8Use of audio-visual links in criminal procedural matters
528Section 13 replaced (Determining place of hearing)
13Determining place of hearing
529Principal Act
530Section 74 amended (Category 4 offences)
531Section 133 amended (Amendment of charge)
532Section 146 amended (Withdrawal of charge)
533New section 362A inserted (Jurisdiction of Justices and Community Magistrates relating to amendment or withdrawal of charges)
362AJurisdiction of Justices and Community Magistrates relating to amendment or withdrawal of charges
534Section 365 repealed (Contempt of court)
535Principal Act
536Section 5 amended (Interpretation)
537Section 187 amended (Jurisdiction of court)
538Section 196 replaced (Contempt of court or Authority)
196Contempt of court or Authority
539New section 198A inserted (Registrar may take affidavit)
198ARegistrar may take affidavit
540Section 200 amended (Appointment of Judges)
541New sections 200AA and 200AB inserted
200AAJudge not to undertake other employment or hold other office
200ABProtocol relating to activities of Judges
542Section 201 amended (Seniority)
543Section 207 amended (Appointment of temporary Judges)
544New sections 222A to 222G inserted
222AInformation regarding reserved judgments
222BFinal written judgments to be published on Internet
222CRecusal guidelines
222DJudge may make order restricting commencement or continuation of proceeding
222EGrounds for making section 222D order
222FTerms of section 222D order
222GProcedure and appeals relating to section 222D orders
546Section 237 amended (Regulations)
547New sections 237B to 237D inserted
237BRegulations providing for waiver, etc, of fees
237CPostponement of fees
237DReviews of decisions of Registrars concerning fees
547ASection 253 amended (Existing appointments)
547BSchedule 1AA amended
1Interpretation
4Application, savings, and transitional provision arising from 2016 (No 2) Act
548Principal Act
549Section 7 amended (Acting Family Court Judges)
550Principal Act
551Section 6 amended (Corporations and other entities not subject to Act)
552Principal Act
553Section 70 amended (Rating unit may be sold or leased)
554Section 75 amended (Application of proceeds of rating sale or lease)
555Principal Act
556New section 27A inserted (Writing required for discharge of debt by acceptance of part in satisfaction)
27AWriting required for discharge of debt by acceptance of part in satisfaction
557New subpart 5A of Part 2 inserted
53AInterpretation
53BSurety who pays debt entitled to assignment of all securities held by creditor
53CRights of surety
53DRights of co-sureties, etc, as between themselves
558New sections 74A and 74B inserted
74ARecovery of payments made under mistake of law
74BPayments made under mistake of law or fact not always recoverable
558AAmendment to Contractual Mistakes Act 1977
558BAmendment to Energy Resources Levy Act 1976
588CAmendment to Social Security Act 1964
559AAPrincipal Act
559ABSection 2 amended (Interpretation)
559Principal Act
560Section 2 amended (Interpretation)
561Section 250 amended (Appointment of Environment Judges and alternate Environment Judges)
562New sections 250A and 250B inserted
250AJudge not to undertake other employment or hold other office
250BProtocol relating to activities of Judges
564Section 282 replaced (Power to commit for contempt)
282Contempt of court
565New sections 288A to 288G inserted
288AInformation regarding reserved judgments
288BFinal written judgments to be published on Internet
288CRecusal guidelines
288DJudge may make order restricting commencement or continuation of proceeding
288EGrounds for making section 288D order
288FTerms of section 288D order
288GProcedure and appeals relating to section 288D orders
566Principal Act
567Section 4 amended (Interpretation)
568Section 7 amended (Appointment of Judges)
569New sections 7AA and 7AB inserted
7AAJudge not to undertake other employment or hold other office
7ABProtocol relating to activities of Judges
569ASection 9 amended (Appointment of temporary Judges)
569BSection 10 amended (Former Judges)
570Section 90 replaced (Power to remove for contempt)
90Contempt of court
571New sections 98A to 98H inserted
98AInformation regarding reserved judgments
98BFinal written judgments to be published on Internet
98CRecusal guidelines
98DJudge may make order restricting commencement or continuation of proceeding
98EGrounds for making section 98D order
98FTerms of section 98D order
98GProcedure and appeals relating to section 98D orders
98HReferences to Judge in sections 98D to 98G
572Principal Act
573Section 3 amended (Purpose of, and guides to, this Act)
574Section 4 amended (Interpretation)
575Section 6 repealed (Trans-Tasman market proceedings provisions not affected)
576Section 53 amended (When registrable Australian judgments are enforceable in New Zealand)
577New Part 3 inserted
79Part not limited by Part 1 or 2
80Courts (Remote Participation) Act 2010 does not apply to remote appearances under this Part
81Interpretation
82High Court may order New Zealand proceedings to be heard in Australia
83Australian counsel entitled to practise in High Court
84High Court may set aside subpoena issued in New Zealand proceeding
85Injunctions and orders in New Zealand proceedings
86Issue of subpoenas in New Zealand proceedings
87Powers of Federal Court of Australia
88Issue of subpoenas in Australian proceedings
89Failure of witness to comply with subpoena issued in Australian proceeding
90Federal Court of Australia may administer oaths in New Zealand
91Orders made by Federal Court of Australia not subject to review
92Contempt of Federal Court of Australia
93Arrangements to facilitate sittings
94Privileges and immunities of Judges, counsel, and witnesses in Australian proceedings
95High Court may take evidence at request of Federal Court
96Power to make rules for purposes of this Part
97Transitional provision for certain proceedings commenced before commencement of this Part
578Consequential amendment to Evidence Act 2006
579Consequential amendment to Judicature Act 1908
580Consequential amendments for Part 6

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Judicature Modernisation Act 2013.

2 Commencement

(1)

This Act comes into force on a date appointed by the Governor-General by Order in Council; and 1 or more orders may be made bringing different provisions into force on different dates.

(2)

The power conferred by subsection (1) includes (without limitation) the power to bring different provisions of the High Court Rules set out in Schedule 1 into force on different dates.

(1)

This Act comes into force on 1 March 2017.

(2)

Subsection (1) applies with the following exceptions:

(a)

the following provisions come into force on the day after the date of Royal assent:

(i)

section 4, in relation to the definition of High Court Rules:

(ii)

sections 144A to 152:

(iii)

sections 171 and 171A:

(iv)

sections 179(1AA), 180(c), and 182:

(v)

sections 419 and 419A:

(vi)

Schedule 2:

(vii)

Schedule 3A:

(viii)

Schedule 5:

(b)

the following provisions come into force on 1 January 2018:

(i)

section 179(3):

(ii)

section 420(2):

(iii)

Part 4:

(iv)

subpart 7 of Part 6:

(v)

Schedule 9AAA:

(vi)

Schedule 9AA:

(vii)

Schedule 9.

Part 1 Senior courts

Subpart 1—Preliminary provisions

3 Purposes

The purposes of this Part are to—

(a)

consolidate in a single statute the provisions of the Judicature Act 1908 and the Supreme Court Act 2003; and

(b)

continue the High Court, the Court of Appeal, and the Supreme Court, and provide for their—

(i)

constitution and jurisdiction; and

(ii)

practice and procedure; and

(iii)

judicial and other officers, including their—

(A)

selection; and

(B)

appointment and conditions; and

(c)

make provision for any other related matters; and

(d)

improve the transparency of court arrangements in a manner consistent with judicial independence.

4 Interpretation

(1)

In this Part, unless the context otherwise requires,—

Associate Judge means an Associate Judge of the High Court

Chief High Court Judge

(a)

means the person holding that office under section 100; and

(b)

includes a Judge of the High Court acting in place of the Chief High Court Judge under section 108

Chief Justice means the Chief Justice of New Zealand holding office under section 100

Court of Appeal means the Court of Appeal of New Zealand continued under section 43

defendant means a person served or intended to be served with any application to the High Court for the exercise of its civil or criminal jurisdiction

Gazette means the New Zealand Gazette

High Court means the High Court of New Zealand continued under section 6

High Court Rules means the rules set out in Schedule 1, as amended from time to time High Court Rules 2016 that are part of this Act under section 144A

interlocutory application

(a)

means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—

(i)

an order or a direction relating to a matter of procedure; or

(ii)

in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and

(c)

includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies

Judge means a Judge of the High Court

judgment includes decree

lawyer has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006

medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine

Minister means the Minister or Ministers of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is or are for the time being responsible for the administration of this Part

plaintiff means a person who makes an application (other than an interlocutory application) to the High Court for the exercise of its civil or criminal jurisdiction

President of the Court of Appeal means the Court of Appeal Judge holding office under section 100

Supreme Court means the Supreme Court of New Zealand continued under section 66

working day, in relation to the High Court and the Court of Appeal, means a day that is not—

(a)

a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, or Waitangi Labour Day; or

(b)

the day observed as the anniversary day of the province in which the court is located; or

(c)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; or

(cd)

a day in the period commencing on 25 December in one year and ending with 15 January in the next year.

working day, in relation to the Supreme Court, has the meaning given in section 65.

(2)

A reference in any enactment to a senior court in New Zealand must, unless the context otherwise requires, be read as a reference to the High Court, the Court of Appeal, or the Supreme Court.

(3)

A reference in any enactment to a senior court of a country other than New Zealand must, unless the context otherwise requires, be read as a reference to a court that has jurisdiction comparable to the jurisdiction of a senior court in New Zealand.

5 This Part binds the Crown

This Part binds the Crown.

Subpart 2—High Court

Constitution of High Court

6 High Court continued

(1)

There continues to be a High Court of New Zealand.

(2)

The High Court consists of—

(a)

the Chief Justice of New Zealand; and

(b)

the other High Court Judges who are from time to time appointed.

(7)

The High Court is a court of record.

(8)

The High Court is the same court as the High Court continued by section 3(1) of the Judicature Act 1908.

Compare: 1908 No 89 s 4(1)

6A Number of High Court Judges

(1)

The number of High Court Judges appointed from time to time referred to in section 6(2)(b) may not exceed 55.

(2)

For the purposes of subsection (1),

(a)

a permanent Judge who is sitting on a full-time basis counts as 1:

(b)

a permanent Judge who is sitting on a part-time basis counts as an appropriate fraction of 1:

(c)

the aggregate number (for example 54.5) must not exceed 55.

(3)

Despite subsection (1), the Governor-General may appoint more than 55 High Court Judges (additional Judges) if the Governor-General thinks that 1 or more additional Judges are required because of—

(a)

the absence of any Judge on leave preliminary to retirement; or

(b)

the anticipated absence of any Judge on leave preliminary to retirement.

(4)

The appointment of an additional Judge under subsection (3) must fill the vacancy next occurring in the office of Judge, not being a vacancy filled by an earlier appointment under subsection (3).

7 Seal

(1)

The High Court must have a seal, and the Registrar of the court is responsible for the seal.

(2)

The seal must be used for sealing judgments, orders, certificates, and any other document issued by the court that must be sealed.

Compare: 1908 No 89 s 50

8 Powers of High Court to be exercised by High Court Judges

(1)

The powers of the High Court may be exercised in any part of New Zealand by a High Court Judge or 2 or more High Court Judges.

(2)

Subsection (1) is subject to any enactment that—

(a)

requires the powers of the High Court to be exercised by the full court or by a specified number of High Court Judges; or

(b)

provides for the appointment of persons other than High Court Judges to sit with the High Court or as members of the court in any specified proceeding or class of proceeding.

Compare: 1908 No 89 s 19

9 Sessions of High Court and adjournments

(1)

A High Court Judge may hold a session of the High Court at any time and place the Judge thinks fit.

(2)

A High Court Judge may adjourn a session of the High Court to a time and place the Judge thinks fit.

(3)

If a High Court Judge is not present at the time appointed for a session of the court, a Registrar must adjourn the session and may determine the time and place of the next session.

Compare: 1908 No 89 s 52

10 Court offices

(1)

The Governor-General may, by notice in the Gazette, declare that an office of the High Court is established at a place and on and after a date stated in the notice.

(2)

The Governor-General may, by notice in the Gazette, abolish an office of the High Court.

(3)

The following provisions apply on the abolition of an office of the High Court (the abolished office):

(a)

the Minister may direct that the documents and records in the abolished office must be transferred to another office of the court (the substituted office):

(b)

when delivered to the Registrar of the substituted office, the documents and records become subject to the custody of that Registrar:

(c)

the Registrar of the substituted office may do anything that could under an enactment or a rule have been done by the Registrar of the abolished office:

(d)

a step in a proceeding that could under an enactment or a rule have been taken in the abolished office may be taken in the substituted office:

(e)

an act or a thing required or authorised by an enactment or a rule to be done by a person at the abolished office in relation to a proceeding or transaction or document may be done by a person at the substituted office:

(f)

an address for service given by a party in relation to a proceeding in the abolished office continues to be the address for service of the party, but if the address does not comply with any enactment or rule the party must give a new address for service on first filing a document in the proceeding in the substituted office:

(g)

a High Court Judge may—

(i)

decide a question as to the application of this section or the procedure to be followed; and

(ii)

make any order the Judge thinks fit.

Compare: 1908 No 89 s 23A

Jurisdiction of High Court

11 Jurisdiction of High Court

The High Court has—

(a)

the jurisdiction that it had on the commencement of this Part; and

(b)

the judicial jurisdiction that may be necessary to administer the laws of New Zealand; and

(c)

the jurisdiction conferred on it by any other Act.

Compare: 1908 No 89 s 16

12 Power to award damages as well as, or in substitution for, injunction or specific performance

The High Court may award damages in addition to or in substitution for an injunction or specific performance.

Compare: 1908 No 89 s 16A

13 Jurisdiction in relation to persons who lack competence to manage their affairs

(1)

The High Court has jurisdiction and control in relation to—

(a)

mentally impaired persons who, in the opinion of the court, lack wholly or partly the competence to manage their own affairs; and

(b)

the property and managers of those persons.

(2)

Subsection (1) is subject to other enactments making provision in relation to those persons or their property or managers.

Compare: 1908 No 89 s 17

14 When civil proceeding to be tried before Judge alone

(1)

A civil proceeding must be tried before a High Court Judge sitting alone.

(2)

This section is subject to section 15.

Compare: 1908 No 89 s 19B

15 Certain civil proceedings may be tried by High Court Judge with jury

(1)

Any party to a proceeding for defamation, false imprisonment, or malicious prosecution may, on giving notice in accordance with the High Court Rules, require the proceeding to be tried by a High Court Judge with a jury.

(2)

Any party to a counterclaim in a proceeding for defamation, false imprisonment, or malicious prosecution may, on giving notice in accordance with the High Court Rules, require the counterclaim to be tried by a High Court Judge with a jury.

(3)

If a notice is given under subsection (1) or (2), the proceeding or counterclaim must be tried in accordance with the subsection that applies.

(3A)

A High Court Judge may, on the application of either party, order that a proceeding for defamation, false imprisonment, or malicious prosecution or any issue in the proceeding be tried before a Judge without a jury if it appears to the Judge before the trial that the trial of the proceeding or the issue will—

(a)

involve mainly the consideration of difficult questions of law; or

(b)

require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation which that cannot conveniently be made with a jury.

(3B)

A proceeding for defamation, false imprisonment, or malicious prosecution that also contains other causes of action may be tried only before a High Court Judge without a jury.

(4)

No civil proceeding other than for defamation, false imprisonment, or malicious prosecution may be tried by a High Court Judge with a jury.

Compare: 1908 No 89 s 19A(1)–(5)

16 Question of foreign law must be decided by High Court Judge

(1)

A question about the effect of evidence of a foreign law that arises in a civil or criminal proceeding that is tried by a High Court Judge with a jury must be decided by the Judge alone.

(2)

This section overrides section 15.

Compare: 1908 No 89 s 19C

17 Proceedings in place of writs

(1)

This section applies in any case where, before the commencement of the Judicature Amendment Act (No 2) 1985,—

(a)

the High Court had jurisdiction to grant relief or a remedy or do any other thing by way of a writ; or

(b)

the High Court could issue a writ for the commencement or conduct of a proceeding or in relation to a proceeding.

(2)

If this section applies,—

(a)

the court continues to have jurisdiction to grant the relief or remedy or to do the thing; but

(b)

the court may not issue the writ; and

(c)

the court may grant the remedy or relief or do the thing by way of a judgment or an order in accordance with this Part and the High Court Rules; and

(d)

a proceeding for the remedy or relief or for the court to do the thing must be commenced and conducted in accordance with this Part and the High Court Rules.

(3)

This section does not apply to—

(a)

a writ of habeas corpus under the Habeas Corpus Act 2001; or

(b)

any writ of execution for the enforcement of a judgment or an order of the court; or

(c)

any writ in aid of any writ of execution.

(4)

Subsection (3) is subject to the High Court Rules.

Compare: 1908 No 89 s 98A

Panels of Judges

18 Panels

(1)

The commercial panel of the High Court from which Judges may be selected to hear and determine commercial proceedings is established and may operate subject to this section.

(2)

The Governor-General may, by Order in Council made on the recommendation of the Attorney-General after consultation with the Chief Justice and the Chief High Court Judge,—

(a)

specify a commencement date for the operation of the commercial panel:

(b)

specify the types of proceedings that may be assigned to the commercial panel:

(c)

if the Governor-General considers it necessary, provide for the commercial panel to cease its operations on or from a specified date.

(3)

The Chief High Court Judge, in consultation with the Attorney-General and the Chief Justice, may establish other panels of High Court Judges for the purposes of dealing with proceedings other than commercial proceedings.

(4)

The Chief High Court Judge may determine how many High Court Judges are to be on the commercial panel or any other panel and assign Judges to the panels.

(5)

The Chief High Court Judge may decide the basis on which cases are to be distributed as between Judges on the commercial panel or another panel and Judges who are not on any panel.

(6)

A party may nominate that the party’s case be dealt with by a Judge on a panel and the Chief High Court Judge may assign to the case a Judge or Judges from a panel.

Jurisdiction of Associate Judges

19 Associate Judge may exercise certain powers of High Court

(1)

An Associate Judge has the jurisdiction and powers of the High Court in relation to the following matters:

(a)

an application for summary judgment:

(b)

an application to stay or dismiss an application for the appointment of a liquidator under the Companies Act 1993:

(ba)

reinstating a company to the Register of Companies:

(bb)

any matter arising under the Insolvency Act 1967:

(bc)

case management of proceedings under the Admiralty Act 1973:

(c)

a proceeding in which relief is claimed solely under any of sections 140, 143, 144, 145, 145A, and 148 of the Land Transfer Act 1952 (which relate to caveats):

(d)

an assessment of damages where liability has been determined or the trial of a proceeding in which only the amount of a debt or damages is in dispute:

(e)

the entry of a judgment by consent or the making of an order by consent:

(f)

the making of an order (other than an arrest order or an order relating to an arrest order) that may be made under the High Court Rules against a judgment debtor who has been ordered to attend the court for an examination:

(g)

the making, variation, suspension, or discharge of an attachment order under the High Court Rules:

(h)

any other matter that an Associate Judge has jurisdiction to deal with under an enactment.

(2)

An Associate Judge has the jurisdiction and powers of the court or a High Court Judge under the following enactments:

(a)

article 11 of Schedule 1 of the Arbitration Act 1996:

(b)

sections 123, 154, 165 to 168, 173, 179, 232 to 234, 236 to 238, Part 15A, and Part 16, and section 329 of the Companies Act 1993:

(c)

section 42(2) of the Corporations (Investigations and Management) Act 1989:

(d)

the Insolvency Act 2006 (except sections 150, 166(3), 180, and 236(2)):

(e)

regulations or rules made under the Insolvency Act 2006:

(f)

regulations relating to liquidations made under the Companies Act 1993:

(g)

sections 118, 128, 131, 167, 168, 170, 179, 181, 182, and 186 of the Personal Property Securities Act 1999:

(h)

the Model Law on Cross-Border Insolvency as set out in Schedule 1 of the Insolvency (Cross-border) Act 2006.

(3)

An Associate Judge may adjourn a proceeding even though the Associate Judge does not have jurisdiction in relation to the proceeding.

(4)

An Associate Judge has the jurisdiction and powers of the court to deal with costs and other matters incidental to the matters over which the Associate Judge has jurisdiction under this section.

(5)

Rules made under section 145 or under any other Act in the same manner as rules under that section may contain any provisions that may be necessary to enable the proper exercise by Associate Judges of the jurisdiction and powers conferred by this section.

Compare: 1908 No 89 ss 26I(1)–(3), (4)(a), 26O

20 Ancillary powers of Associate Judge

(1)

An Associate Judge has, in relation to a proceeding (including a proceeding on an interlocutory application) that is properly before the Associate Judge, the same jurisdiction and power to make an order or exercise an authority as a Judge of the High Court.

(2)

Despite subsection (1), an Associate Judge does not have the jurisdiction or powers referred to in section 21(4).

Compare: 1908 No 89 s 26IA

21 Rules conferring on Associate Judges specified jurisdiction and powers of High Court Judge in chambers

(1)

Rules made under section 145 and rules made under any other Act in the manner provided in that section may confer on an Associate Judge the jurisdiction and powers of a High Court Judge in chambers specified in the rules.

(2)

The rules may specify limitations and restrictions on the jurisdiction and powers.

(3)

The rules may contain any provisions that may be necessary to enable the proper exercise by Associate Judges of the jurisdiction and powers so conferred.

(4)

Despite subsection (1), no rules may be made that confer on Associate Judges jurisdiction and power in relation to any of the following:

(a)

a criminal proceeding other than an uncontested application for bail or an application to set aside a witness summons:

(b)

an application for a writ of habeas corpus:

(c)

a proceeding for the issue or renewal of a writ of sequestration:

(d)

a proceeding under the Care of Children Act 2004:

(e)

an action in rem under the Admiralty Act 1973:

(f)

an application to review, or appeal against, the exercise, or the refusal to exercise, by a Registrar or a Deputy Registrar of any jurisdiction or power conferred on a Registrar or Deputy Registrar by this Part or any other enactment:

(g)

an application for a search order or an interlocutory or a permanent injunction:

(h)

an application for review or other relief under Part 3 of the Judicature Modernisation Act 2013:

(i)

a proceeding for a writ or an order in the nature of mandamus, prohibition, or certiorari, or for a declaration or an injunction:

(j)

a proceeding to remove a person from public office:

(k)

a proceeding to try the right of a person to hold public office.

Compare: 1908 No 89 s 26J

22 Application of provisions relating to witnesses and contempt

Sections 40, 41, and 161 (which relate to the power to deal with witnesses and contempt) apply to a proceeding before an Associate Judge in the same way as they apply to a proceeding before a High Court Judge.

Compare: 1908 No 89 s 26K

23 No power to order committal, attachment, or arrest

(1)

An Associate Judge does not have power to make an order for the committal, attachment, or arrest of a person.

(2)

This section is subject to section 22.

Compare: 1908 No 89 s 26L

24 Power to act as referee

An Associate Judge may act as a referee under the High Court Rules in a proceeding or on a question that arises in a proceeding.

Compare: 1908 No 89 s 26M

25 Transfer of proceeding to High Court Judge

(1)

An Associate Judge may, on the application of a party to a proceeding before the Associate Judge or on the Associate Judge’s own initiative, refer the proceeding or a matter in the proceeding to a High Court Judge if the Associate Judge is satisfied that because of the complexity of the proceeding or matter it is desirable to do so.

(2)

A High Court Judge may, on the application of a party to a proceeding that is being or is to be dealt with by an Associate Judge, order that the proceeding or any part of it be transferred to and dealt with by a High Court Judge if the Judge making the order is satisfied that it is desirable to do so.

(3)

A High Court Judge may—

(a)

dispose of the proceeding; or

(b)

refer the proceeding or matter back to the Associate Judge with any directions the High Court Judge thinks fit.

Compare: 1908 No 89 s 26N

26 Appeals against decisions of Associate Judges

(1)

A party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings.

(2)

Section 57 applies to an appeal under subsection (1).

Compare: 1908 No 89 s 26P(1), (1A), (3)

26A Immunity of Associate Judges

Every Associate Judge has the same immunities as a Judge of the High Court.

Compare: 1908 No 89 s 26Q

27 Jurisdiction of High Court Judges not affected

Nothing in this Part or the High Court Rules prevents the exercise by a High Court Judge of the jurisdiction and powers conferred on an Associate Judge by this Part or those rules.

Compare: 1908 No 89 s 26R

Commissioners for oaths, affidavits, and affirmations

28 Power to appoint Commissioners

(1)

A High Court Judge may appoint a person to be a Commissioner of the High Court to administer and take an oath, affidavit, or affirmation outside New Zealand in connection with a proceeding or matter before a court in New Zealand.

(2)

Notification of the appointment must be published in the Gazette.

Compare: 1908 No 89 s 47

29 Effect of oath, affidavit, or affirmation

An oath, affidavit, or affirmation administered or taken by a Commissioner has the same effect as if it had been administered or taken by a person authorised to administer or take the oath, affidavit, or affirmation in New Zealand.

Compare: 1908 No 89 s 48

30 Revocation of commission

(1)

A High Court Judge may revoke a commission for any reason the Judge considers sufficient.

(2)

Revocation of a commission does not affect the validity of anything done by the Commissioner before notice of the revocation was given or sent to the Commissioner.

(3)

Notice of the revocation and of the date on which it was given or sent to the Commissioner must be published in the Gazette.

Compare: 1908 No 89 s 49

Registrars, Sheriffs, and officers of High Court

31 Appointment of Registrars, Deputy Registrars, and other officers of High Court

Registrars, Deputy Registrars, and other officers may be appointed under the State Sector Act 1988 for the conduct of the business of the High Court.

Compare: 1908 No 89 s 27

32 Powers of Registrars

(1)

A Registrar has the duties and powers—

(a)

conferred by this Part, any other enactment, or the High Court Rules:

(b)

necessary or desirable to ensure the efficient and effective administration of the business of the High Court.

(2)

A Deputy Registrar has the same duties and powers as a Registrar.

(3)

Subsection (2) is subject to a provision to the contrary in any other enactment or the High Court Rules.

Compare: 1908 No 89 s 28

33 Sheriffs

(1)

A Registrar is also a Sheriff for New Zealand.

(2)

Deputy Sheriffs may be appointed under the State Sector Act 1988 for offices of the High Court.

(3)

In the absence of the Sheriff or when acting for the Sheriff, a Deputy Sheriff has the same duties and powers as a Sheriff.

Compare: 1908 No 89 s 29

34 Powers of Sheriffs

A Sheriff has—

(a)

the power to enforce an order of the High Court:

(b)

the power to serve a process of the High Court:

(c)

the power to arrest a person in accordance with an order of the High Court:

(d)

any other powers conferred by this Part, any other enactment, or the High Court Rules.

Compare: 1908 No 89 s 32

35 Sheriff not to act as lawyer or agent

No Sheriff may be in any way concerned in any action in any court in New Zealand either as a lawyer or as an agent.

Compare: 1908 No 89 s 34

36 Service of process when Sheriff disqualified

(1)

If the Sheriff is disqualified by law from executing any process that has been issued, the court must authorise a fit person to execute the process.

(2)

The cause of the process must be entered in the records of the court.

Compare: 1908 No 89 s 35

37 Persons arrested by Sheriffs may be committed to prison at once

A Sheriff, Sheriff’s officer, bailiff, or any other person employed to assist the Sheriff who arrests any person under or by virtue of any writ or process that authorises the committal of the arrested person may, without delay, take steps to have the arrested person taken to a prison and committed there.

Compare: 1908 No 89 s 36

Miscellaneous matters

38 Arrest of defendant about to leave New Zealand

(1)

A Judge may, on the application of a plaintiff in a proceeding to recover an amount of money, issue a warrant to arrest a defendant in the proceeding and bring the defendant before the court.

(2)

A Judge must not issue a warrant unless the Judge is satisfied that—

(a)

the plaintiff has a good cause of action against the defendant; and

(b)

there are reasonable grounds to suspect that the defendant is about to leave New Zealand with the intention of evading payment of the amount claimed.

(3)

The Judge may require the applicant for the warrant to deposit in the court an amount not exceeding the amount claimed in the proceeding or give a surety for that amount for the purposes of payment of any compensation that may be ordered to be paid to the defendant under subsection (9).

(4)

The defendant must be brought before the court unless the amount claimed in the proceeding is paid to the plaintiff before the warrant is executed.

(5)

The Judge may—

(a)

release the defendant; or

(b)

release the defendant on bail on any terms and conditions the Judge thinks fit and with a surety of an amount the Judge thinks fit (but not exceeding the amount claimed in the proceeding and costs) or without a surety; or

(c)

remand the defendant in custody.

(6)

A defendant who is remanded in custody must be brought before the court within 4 days after the date of the order.

(7)

A defendant arrested under the warrant may either give to the enforcing officer or deposit in the court the amount shown on the warrant as the amount of the claim plus costs. If the defendant does so, he or she must be released and the amount must be retained and,—

(a)

if judgment in the proceeding is given in favour of the plaintiff, paid or applied in accordance with the judgment; or

(b)

if judgment in the proceeding is given in favour of the defendant, paid to the defendant.

(8)

The Judge may,—

(a)

if the defendant consents, hear and determine the proceeding at the time the defendant is brought before the court; or

(b)

fix a date and time for the hearing of the proceeding.

(9)

If judgment is given for the defendant, the Judge may order that the defendant be paid compensation for his or her arrest or arrest and detention of an amount not exceeding $2,000 $10,000.

(10)

Where a Judge is not available though absence, illness, or any other cause, a Registrar may exercise any of the powers conferred on a Judge by subsections (1) to (3) and (5)(a) and (b).

Compare: 1908 No 89 s 55; 1947 No 16 ss 109, 110

39 Witness not required to attend hearing of civil proceeding unless allowances and expenses paid

A witness is not required to attend the hearing of a civil proceeding in the High Court unless allowances and travelling expenses in accordance with regulations made under the Criminal Procedure Act 2011 have been paid or tendered to the witness—

(a)

at the time of service on the witness of the subpoena; or

(b)

a reasonable time before the hearing.

Compare: 1908 No 89 s 56A(3)

40 Failure of witness to attend

(1)

The High Court may, in civil proceedings, issue a warrant to arrest and bring before the court a witness who—

(a)

is compellable to attend the court to give evidence; and

(b)

has been summoned to attend the court to give evidence; and

(c)

fails to attend the court.

(2)

The High Court may impose a fine not exceeding $1,000 on a witness brought before the court under subsection (1) who did does not have a reasonable excuse for failing to attend the court.

(3)

The onus of proving a reasonable excuse is on the witness.

Compare: 1908 No 89 s 56A(1), (2)

41 Refusal to give evidence

(1)

This section applies to a witness in a civil proceeding who, without reasonable excuse,—

(a)

refuses to give evidence when required; or

(b)

refuses to produce a document the witness has been required to produce; or

(c)

refuses to be sworn; or

(d)

having been sworn, refuses to answer a question.

(2)

The High Court may order that, unless the witness complies with subsection (1), the witness is to be detained in custody for a period not exceeding 7 days and may issue a warrant to arrest and detain the witness.

(3)

The High Court may exercise the powers in subsection (2) if the witness is again brought before the court, whether on 1 or more occasions, and still fails to comply with subsection (1).

(4)

This section does not limit the power of the High Court to punish the witness for contempt.

Compare: 1908 No 89 s 56B

42 High Court may require person to undergo medical examination

(1)

The High Court may order a party to a civil proceeding to undergo a medical examination by a registered medical practitioner at a time and place specified in the order if the court is satisfied, in the interests of justice, that the physical or mental condition of the person is relevant to a matter in the proceeding.

(2)

The person to be examined may have a registered medical practitioner of the person’s own choice present at the examination.

(3)

The court may order a party seeking the order to pay to the person to be examined a reasonable sum to meet—

(a)

the person’s travelling and other expenses in connection with the examination; and

(b)

the expenses of having a registered medical practitioner chosen by the person attend the examination.

(4)

The person to be examined must do the things reasonably requested and answer the reasonable questions asked by the medical practitioner who conducts the examination.

(5)

If the person to be examined fails, without reasonable excuse, to comply with the order or wilfully obstructs the medical examination, the High Court may—

(a)

stay the proceeding; or

(b)

strike out a notice, statement, or other document filed, or a step taken, in the proceeding by the person to be examined.

Compare: 1908 No 89 s 100

Subpart 3—Court of Appeal

Constitution

43 Court of Appeal continued

(1)

There continues to be a Court of Appeal of New Zealand.

(2)

The Court of Appeal consists of—

(a)

a Judge of the High Court appointed by the Governor-General as a Judge of the Court of Appeal and as President of that court; and

(b)

no fewer than 5 nor more than 9 other Judges of the High Court appointed by the Governor-General as Judges of the Court of Appeal.

(3)

The Court of Appeal is a court of record.

(4)

The Court of Appeal is the same court as the Court of Appeal continued by section 57 of the Judicature Act 1908.

Compare: 1908 No 89 s 57(1), (2)

44 Seal

(1)

The Court of Appeal must have a seal, and the Registrar of the court is responsible for the seal.

(2)

The seal must be used for sealing judgments, orders, certificates, and any other document issued by the court that must be sealed.

Compare: 1908 No 89 s 74

45 Court of Appeal to sit in divisions

(1)

For the purposes of proceedings in the Court of Appeal, the Court of Appeal sits in divisions comprising 3 Judges.

(3)

Each division may exercise all the powers of the Court of Appeal.

(4)

A division may exercise the powers of the Court of Appeal even though 1 or more divisions of the court or a full court exercises those powers at the same time.

(5)

A majority of the members of a division may, if they consider it desirable, refer a proceeding, or state a case, or reserve a question for consideration by a full court of the Court of Appeal. A full court has power to hear and determine the proceeding, case, or question.

Compare: 1908 No 89 s 58

46 Composition of divisions

(1)

For the purposes of a proceeding that is heard by a division, the Court of Appeal comprises—

(a)

3 Judges of the Court of Appeal holding office under section 43(2) or 111; or

(b)

2 Judges of the Court of Appeal holding office under section 43(2) or 111 and 1 Judge of the High Court appointed under subsection (2); or

(c)

1 Judge of the Court of Appeal holding office under section 43(2) or 111 and 2 Judges of the High Court appointed under subsection (2).

(2)

The President of the Court of Appeal and the Chief High Court Judge may jointly appoint Judges of the High Court to be members of the Court of Appeal for the purposes of any proceedings.

(3)

Judges may be appointed under subsection (2) either—

(a)

in respect of a specified case or specified cases; or

(b)

in respect of every case to be heard by the Court of Appeal during a specified period not exceeding 3 months.

(4)

An appointment under subsection (2) may be made for 1 or more 3-month periods, but no Judge may be a member of the Court of Appeal under that subsection for more than 4 months in any calendar year.

(5)

Section 173 applies to an appointment under subsection (2) despite anything in subsection (3) or (4).

(6)

Each division may exercise all the powers of the Court of Appeal.

(7)

A division may exercise the powers of the Court of Appeal even though 1 or more divisions of the court or a full court exercises those powers at the same time.

(8)

A majority of the members of a division may, if they consider it desirable, refer a proceeding, or state a case, or reserve a question for consideration by a full court of the Court of Appeal. A full court has power to hear and determine the proceeding, case, or question.

Compare: 1908 No 89 ss 58A, 58B

48 Assignment of Judges to divisions

(1)

Judges are assigned to act as members of a criminal or civil division of the Court of Appeal in accordance with a procedure adopted from time to time by the Judges of the Court of Appeal holding office under section 43(2).

(2)

The President of the Court of Appeal must publish the procedure on an Internet site maintained by or on behalf of the court.

Compare: 1908 No 89 s 58C

49 Powers exercisable by Judges

(1)

This section applies to all proceedings before the Court of Appeal other than proceedings under the Criminal Procedure Act 2011.

(2)

Any 2 or more Judges of the Court of Appeal may act as the court to determine—

(a)

any contested application for leave to appeal:

(b)

any contested application for an extension of time to appeal:

(c)

any other contested application or matter (other than an appeal) that effectively determines or disposes of the substantive proceeding.

(3)

A single Judge of the Court of Appeal may act as the court to determine any uncontested application of the kind referred to in subsection (2) or other uncontested matter in the court (other than an appeal).

(4)

If a single Judge acting under subsection (2) (3) determines not to grant an application or not to resolve a matter in favour of a party, the party may apply to have the Judge’s determination confirmed reviewed by 2 or more Judges of the Court of Appeal.

(5)

The Judges who determine an application under subsection (4) may confirm, modify, or reverse the single Judge’s determination.

(6)

Every application or matter dealt with under this section must be determined on the papers, unless the Judge or Judges order that it be determined at an oral hearing or in any other manner considered just by the Judge or Judges.

(6)

A single Judge of the Court of Appeal may

(a)

review a decision of the Registrar made within the civil jurisdiction of the court under

(i)

a power conferred on the Registrar by a rule made under section 145; or

(ii)

in the exercise of the powers under section 64(1)(b); and

(b)

confirm, modify, or revoke that decision as the Judge thinks fit.

(7)

Unless otherwise directed by the court

(a)

every application and matter dealt with under this section must be determined on the papers; and

(b)

every review under this section must be conducted on the papers.

Compare: 1908 No 89 s 61A(1), (2)

51 Court of Appeal to sit as full court in certain cases

(1)

The Court of Appeal must sit as a full court to hear and determine—

(a)

cases that are considered, in accordance with the procedure adopted under section 52, to be of sufficient significance to warrant the consideration of a full court:

(b)

a proceeding, case, or question referred under section 45(5) for hearing and determination by a full court:

(c)

an appeal from a decision of the Court Martial Appeal Court under section 10 of the Court Martial Appeals Act 1953.

(2)

A full court of the Court of Appeal consists of 5 Judges.

(3)

A full court is constituted only by Judges of the Court of Appeal holding office under section 43(2).

(4)

Despite subsection (2), it is not necessary for a proceeding to be reheard if, before the determination of the proceeding, 1 or more members of the full court before whom the proceeding is being or was heard

(a)

dies; or

(b)

becomes seriously ill; or

(c)

is unavailable for any other reason.

(5)

The remaining members of the full court may continue to act as a full court for the purposes of this section and have power to determine the proceeding or any incidental matter, including the question of costs, that may arise in the proceeding.

Compare: 1908 No 89 s 58D

52 Cases of sufficient significance for full court

(1)

The question whether a case is of sufficient significance to warrant the consideration of a full court must be determined in accordance with the procedure adopted by the Judges of the Court of Appeal holding office under section 43(2).

(2)

The President of the Court of Appeal must publish the procedure on an Internet site maintained by or on behalf of the court.

Compare: 1908 No 89 s 58E

53 Authority of High Court Judges to act as Judges of Court of Appeal

(1)

The fact that a High Court Judge acts as a Judge of the Court of Appeal is conclusive evidence of the Judge’s authority to do so. No judgment or determination given or made by the Court of Appeal while the Judge so acts may be questioned on the ground that the occasion for the Judge acting had not arisen or had ceased to exist.

(2)

A Judge of the High Court who has acted as a Judge of the Court of Appeal may attend sessions of the Court of Appeal for the purpose of giving a judgment or imposing a sentence or completing a proceeding heard by the Court of Appeal while the Judge acted as a Judge of the court.

Compare: 1908 No 89 s 58G

54 Judgment of Court of Appeal

(1)

The judgment of the Court of Appeal must be in accordance with the opinion of a majority of the Judges hearing the proceeding.

(2)

If the Judges are equally divided, the judgment or order appealed from or under review is taken as affirmed.

(3)

A judgment of the Court of Appeal may be given in the manner prescribed by rules made under section 145.

Compare: 1908 No 89 s 59

55 Sessions of Court of Appeal

(1)

The President of the Court of Appeal presides at a session of the court at which he or she is present.

(2)

If the President is not present, the senior Judge of the Court of Appeal who is present presides.

Compare: 1908 No 89 s 60(2), (3)

56 Adjournments

(1)

The Court of Appeal may adjourn a session of the court to a time and place appointed by the court.

(2)

One of more Judges of the Court of Appeal may adjourn a session of the Court of Appeal to a time and place appointed by the Judge or Judges if it is necessary to do so because 1 or more Judges of the Court of Appeal are not present at the session.

(3)

If none of the Judges is present at the time appointed for a session of the court, the Registrar of the Court of Appeal must adjourn the session and may determine the time and place of the next session.

Compare: 1908 No 89 ss 60(4), 61

Jurisdiction

57 Jurisdiction

(1)

The Court of Appeal may hear and determine appeals—

(a)

from a judgment, decree, or order of the High Court:

(b)

under the Criminal Procedure Act 2011:

(c)

from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.

(2)

Subsection (1) is subject to subsections (2A) and (4) and to rules made under section 145.

(2A)

No appeal, except an appeal under subsection (3), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

(3)

Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—

(a)

striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b)

granting summary judgment.

(4)

If the High Court refuses leave to appeal under subsection (2A), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.

(5)

If leave to appeal under subsection (2A) or (4) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.

Compare: 1908 No 89 s 66

58 Court of Appeal may remit proceeding to High Court

The Court of Appeal may—

(a)

remit a proceeding to the High Court; or

(b)

order a new trial in the High Court of a civil or criminal proceeding that is the subject of an appeal to the Court of Appeal.

Compare: 1908 No 89 s 62

59 Judgment of Court of Appeal may be enforced by High Court

A judgment, an order, or a decree of the Court of Appeal may be enforced by the High Court as if it had been given or made by the High Court.

Compare: 1908 No 89 s 63

60 Transfer of civil proceeding from High Court to Court of Appeal

(1)

A party to a civil proceeding in the High Court may apply for an order transferring the proceeding to the Court of Appeal.

(2)

In determining whether to make an order transferring the proceeding, the Court of Appeal must be satisfied that the circumstances of the proceeding are exceptional.

(3)

Without limiting subsection (2), the circumstances may be exceptional if—

(a)

the party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled:

(b)

the proceeding raises an issue of considerable public importance that—

(i)

needs to be determined urgently; and

(ii)

is unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal:

(c)

the proceeding does not raise a question of fact or a significant question of fact, but raises a question of law that is the subject of conflicting decisions of the Court of Appeal.

(4)

In deciding whether to make an order transferring the proceeding, the Court of Appeal must have regard to the following matters:

(a)

the primary purpose of the Court of Appeal as an appellate court:

(b)

the desirability of obtaining a determination of the proceeding in the High Court and a review of that determination on appeal:

(c)

whether a full court of the High Court could effectively determine the question in issue:

(d)

whether the proceeding raises a question of fact or a significant question of fact:

(e)

whether the parties have agreed to the transfer of the proceeding:

(f)

any other matter to which regard should be had in the public interest.

(5)

It is not a sufficient ground that the parties agree to the transfer.

(6)

The Court of Appeal has the jurisdiction of the High Court to hear and determine a proceeding transferred under this section.

(7)

The Court of Appeal may transfer back to the High Court a proceeding that has been transferred to the Court of Appeal.

Compare: 1908 No 89 s 64

61 Appeals against decisions of High Court on appeal from District Court, Family Court, or Youth Court

(1)

The decision of the High Court on appeal from the District Court, the Family Court, or the Youth Court is final unless a party, on application, obtains leave to appeal against the decision to the Court of Appeal.

(2)

An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.

(3)

If leave to appeal is obtained under subsection (1), the decision of the Court of Appeal is final unless a party obtains leave to appeal against that decision to the Supreme Court.

(3A)

If there is non-compliance with any procedural rules in relation to an application or appeal under this section before the Court of Appeal, the court may dismiss the application or appeal or deal with it in any other manner and on any terms that the court decides.

(4)

Subsections (1) to (3A) are subject to subpart 4.

Compare: 1908 No 89 s 67

62 Reasons for granting or refusing leave to appeal

(1)

The Court of Appeal may, but does not have to, give reasons for granting leave to appeal to the Court of Appeal.

(1A)

The Court of Appeal must give reasons for refusing leave to appeal to the Court of Appeal.

(2)

Reasons given by the Court of Appeal may be stated—

(a)

briefly; and

(b)

in general terms only.

Compare: 2003 No 53 s 16

62A Procedure if Judges absent

(1)

This section applies if, because of the death or unavailability of 1 or 2 of the Judges of the Court of Appeal who are about to begin or have begun hearing a proceeding, only 2 of those Judges (in the case of a division of the court) or 3 or 4 of those judges (in the case of a full court) remain available to hear and determine the proceeding.

(2)

The remaining Judges must decide whether the proceeding must be adjourned or reheard, or may continue.

(3)

If the remaining Judges decide that the proceeding may continue,—

(a)

they may—

(i)

act as the Court of Appeal in relation to the proceeding and hear and determine the proceeding; and

(ii)

make any order or decision on any interlocutory application; and

(iii)

make any order or decision as to costs; and

(b)

a reference in section 54(1) to a majority of the Judges hearing the proceeding must be read as a reference to the 2 remaining Judges (in the case of a division) or to a majority of those remaining Judges (in the case of a full court).

(4)

If the death or unavailability occurs while judgment is reserved in the proceeding, the remaining Judges must decide—

(a)

whether the judgment should be produced or completed, and (if so) who should produce or complete the judgment; or

(b)

whether the proceeding should be reheard.

(5)

If, at the time appointed for a session of the Court of Appeal, 1 or more Judges are absent, the Judge or Judges present may adjourn or further adjourn the session to some other time.

(6)

If none of the Judges of the Court of Appeal is present at the time appointed for a session of the court, the Registrar of the Court of Appeal must adjourn the session and may determine the time and place of the next session.

Compare: 2003 No 53 s 30

Registrar and other officers of Court of Appeal

63 Appointment of Registrar, Deputy Registrar, and other officers of Court of Appeal

A Registrar, a Deputy Registrar, and other officers may be appointed under the State Sector Act 1988 for the conduct of the business of the Court of Appeal.

Compare: 1908 No 89 s 72

64 Powers of Registrar and Deputy Registrar

(1)

The Registrar has the powers and duties—

(a)

conferred by this Part, any other enactment, or rules made under section 145:

(b)

necessary or desirable to ensure the efficient and effective administration of the business of the Court of Appeal.

(2)

The Deputy Registrar has the same duties and powers as the Registrar.

(3)

Subsection (2) is subject to a provision to the contrary in any rules made under section 145 or any other enactment.

Compare: 1908 No 89 s 73

Subpart 4—Supreme Court

Preliminary matters

65 Interpretation

In this subpart, unless the context otherwise requires,—

civil proceeding

(a)

means a proceeding that is not a criminal proceeding; and

(b)

includes a proceeding under the Bail Act 2000

decision includes a judgment, decree, order, direction, or determination

District Court includes—

(a)

the Family Court and the Youth Court; and

(b)

the District Court sitting in its admiralty jurisdiction

High Court includes the High Court sitting—

(a)

in its admiralty jurisdiction; or

(b)

as a permanent Prize Court under the jurisdiction conferred by section 8 of the Admiralty Act 1973

interlocutory application

(a)

means an application in a proceeding or an intended proceeding for—

(i)

an order or a direction relating to a matter of procedure; or

(ii)

in the case of a civil proceeding, for relief ancillary to the relief claimed in the proceeding; and

(b)

includes an application for a new trial; and

(c)

includes an application to review a decision made on an interlocutory application

New Zealand court means—

(a)

the Supreme Court, the Court of Appeal, the High Court, or the District Court; or

(b)

any of the following specialist courts: the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, the Court Martial Appeal Court constituted by the Court Martial Appeals Act 1953, the Employment Court, the Environment Court, the Māori Appellate Court, and the Māori Land Court

Registrar means the Registrar of the Supreme Court appointed under section 87

Supreme Court means the Supreme Court continued by section 66.

working day means a day of the week other than

(a)

a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, and Labour Day; and

(b)

the day observed as anniversary day in Wellington; and

(c)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and

(d)

a day in the period commencing on 25 December in any year and ending with 15 January in the following year.

Compare: 2003 No 53 s 4

Constitution of Supreme Court

66 Supreme Court continued

(1)

There continues to be a Supreme Court of New Zealand for the hearing of appeals in New Zealand on important legal matters, including matters relating to the Treaty of Waitangi, which would formerly have been determined by the Judicial Committee of the Privy Council.

(2)

The Supreme Court consists of—

(a)

the Chief Justice; and

(b)

no fewer than 4 nor more than 5 other Judges appointed by the Governor-General as Judges of the Supreme Court.

(3)

The Supreme Court is a court of record.

(4)

The jurisdiction of the Supreme Court is not affected by a vacancy in its membership.

Compare: 2003 No 53 ss 3(1), 6, 17

67 Seal

(1)

The Supreme Court must have a seal, and the Registrar of the Supreme Court is responsible for the seal.

(2)

The seal must be used for sealing judgments, orders, certificates, and any other document issued by the Supreme Court that must be sealed.

Compare: 2003 No 53 s 38

Jurisdiction of Supreme Court

68 Appeals against decisions of Court of Appeal in civil cases proceedings

The Supreme Court may hear and determine an appeal by a party to a civil proceeding in the Court of Appeal against a decision made in the proceeding, unless—

(a)

an enactment other than this Part makes provision to the effect that there is no right of appeal against the decision; or

(b)

the decision is a refusal to give leave or special leave to appeal to the Court of Appeal.

Compare: 2003 No 53 s 7

69 Appeals against decisions of High Court in civil proceedings

The Supreme Court may hear and determine an appeal by a party to a civil proceeding in the High Court against a decision made in the proceeding, unless—

(a)

an enactment other than this Part makes provision to the effect that there is no right of appeal against the decision; or

(b)

the decision is a refusal to give leave or special leave to appeal to the High Court or the Court of Appeal; or

(c)

the decision was is made on an interlocutory application.

Compare: 2003 No 53 s 8

70 Appeals against decisions of other courts in civil proceedings

The Supreme Court may hear and determine an appeal against a decision made in a civil proceeding in a New Zealand court other than the Court of Appeal or the High Court to the extent only that an enactment other than this Part provides for the bringing of an appeal against the decision to the Supreme Court.

Compare: 2003 No 53 s 9

71 Appeals against decisions in criminal proceedings

The Supreme Court may hear and determine appeals authorised by—

(a)

Part 6 of the Criminal Procedure Act 2011; or

(b)

section 10 or 10A of the Court Martial Appeals Act 1953.

Compare: 2003 No 53 s 10

72 Procedural requirements

Sections 68 to 71 are subject to—

(a)

this Part; and

(b)

all applicable rules, orders, and directions for regulating the terms and conditions on which appeals may be allowed, made, or given under this Part.

Compare: 2003 No 53 s 11

Leave to appeal

73 Appeals to be by leave

(1)

Appeals to the Supreme Court may be heard only with the court’s leave.

(2)

A reference in an enactment other than this Part to the leave of the Supreme Court must be read subject to sections 74 and 75.

Compare: 2003 No 53 s 12

74 Criteria for leave to appeal

(1)

The Supreme Court must not give leave to appeal to it unless it is satisfied that it is necessary in the interests of justice for the court to hear and determine the appeal.

(2)

It is necessary in the interests of justice for the Supreme Court to hear and determine a proposed appeal if—

(a)

the appeal involves a matter of general or public importance; or

(b)

a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; or

(c)

the appeal involves a matter of general commercial significance.

(3)

For the purposes of subsection (2)(a), a significant issue relating to the Treaty of Waitangi is a matter of general or public importance.

(4)

The Supreme Court must not give leave to appeal to it against an order made by the Court of Appeal on an interlocutory application unless satisfied that it is necessary in the interests of justice for the Supreme Court to hear and determine the proposed appeal before the proceeding concerned is concluded.

(5)

Subsection (2) does not limit the generality of subsection (1) and subsection (3) does not limit the generality of subsection (2)(a).

Compare: 2003 No 53 s 13

75 No direct appeal from court other than Court of Appeal unless exceptional circumstances established

The Supreme Court must not give leave to appeal directly to it against a decision made, a conviction entered, or a sentence imposed in a proceeding in a New Zealand court other than the Court of Appeal unless the court is satisfied,—

(a)

in accordance with section 74, that it is necessary in the interests of justice for the court to hear and determine the appeal; and

(b)

that there are exceptional circumstances that justify taking the proposed appeal directly to the court.

Compare: 2003 No 53 s 14

76 Applications for leave

(1)

The parties to an application for leave to appeal to the Supreme Court may make written submissions to the court, and may include in the submissions—

(a)

additional relevant written material; and

(b)

responses to submissions made by another party.

(2)

Neither the parties nor their representatives have a right to appear before the court on the application; but the court may, if it thinks fit,—

(a)

authorise the parties, their representatives, or both to appear:

(b)

exclude from any authority to appear a party who is an appellant in custody.

(3)

In determining the application, the court must consider—

(a)

the written submissions before it; and

(b)

if an oral hearing was held, the matters raised at the hearing.

(4)

The court may consider the written submissions in any manner it thinks fit.

Compare: 2003 No 53 s 15

77 Court to state reasons for refusal to give leave

(1)

The Supreme Court must state its reasons for refusing to give leave to appeal to it.

(2)

The reasons may be stated—

(a)

briefly; and

(b)

in general terms only.

Compare: 2003 No 53 s 16

Powers and judgments of Supreme Court

78 Appeals to proceed by way of rehearing

Appeals to the Supreme Court proceed by way of rehearing.

Compare: 2003 No 53 s 24

79 General powers

(1)

On an appeal in a proceeding that has been heard in a New Zealand court, the Supreme Court—

(a)

may make any order or grant any relief that could have been made or granted by that court; and

(b)

even if the proceeding has not been heard in the Court of Appeal, has the powers the Court of Appeal would have if hearing the appeal.

(2)

In a proceeding, the Supreme Court may, as it thinks fit, make—

(a)

any ancillary order; and

(b)

any order or decision on an interlocutory application; and

(c)

any order as to costs.

Compare: 2003 No 53 s 25

80 Power to remit proceeding

The Supreme Court may remit a proceeding that began in any New Zealand court to a New Zealand court that has jurisdiction to deal with it.

Compare: 2003 No 53 s 26

81 Exercise of powers of court

(1)

For the purposes of the hearing and determination of a proceeding, the Supreme Court comprises 5 Judges of the court.

(2)

Two or more permanent Judges of the Supreme Court may act as the court—

(a)

to decide whether an oral hearing of an application for leave to appeal to the court should be held, or the application should be determined just on the basis of written submissions:

(b)

to determine an application for leave to appeal to the court.

(3)

A judgment of the Supreme Court may be delivered in the manner and by the number of Judges provided by rules made under section 145.

(4)

This section is subject to sections 82(1) and 84(1).

Compare: 2003 No 53 s 27

82 Orders and directions on interlocutory applications may be made or given by 1 Judge

(1)

In a proceeding before the Supreme Court, a permanent Judge of the court may, on an interlocutory application, make any order and give any direction that the Judge thinks fit (other than an order or a direction excluded by subsection (2)).

(2)

Subsection (1) does not apply to an order or a direction that determines the proceeding or disposes of a question or an issue that is before the court in the proceeding.

(3)

A permanent Judge of the Supreme Court may—

(a)

review a decision of the Registrar made within the civil jurisdiction of the court under a power conferred on the Registrar by a rule made under section 145; and

(b)

confirm, modify, or revoke that decision as the Judge thinks fit.

(4)

The Judges of the Supreme Court who together have jurisdiction to hear and determine a proceeding may—

(a)

discharge or vary an order or a direction made or given under subsection (1); or

(b)

confirm, modify, or revoke a decision confirmed or modified under subsection (3).

Compare: 2003 No 53 s 28

83 Presiding Judge

(1)

The Chief Justice presides over the Supreme Court.

(2)

If the Chief Justice is absent, or the office of Chief Justice is vacant, the most senior available Judge of the Supreme Court presides over the court.

(3)

The fact that a Judge of the Supreme Court other than the Chief Justice presides over the court is conclusive proof of the Judge’s authority to do so. No action of the Judge, and no judgment or decision of the court, may be questioned on the ground that the occasion for the Judge to preside over the court had not arisen or had ceased.

Compare: 2003 No 53 s 29

84 Procedure if Judges absent

(1)

This section applies if, because of the death or unavailability of 1 or 2 of the Judges of the Supreme Court who are about to begin or have begun hearing a proceeding, only 3 or 4 of those Judges remain available to hear and determine the proceeding.

(2)

The remaining Judges must decide whether the proceeding must be adjourned or reheard, or may continue.

(3)

If the remaining Judges decide that the proceeding may continue,—

(a)

they may—

(i)

act as the Supreme Court in relation to the proceeding and hear and determine the proceeding; and

(ii)

make any order or decision on any interlocutory application; and

(iii)

make any order or decision as to costs; and

(b)

a reference in section 85(1) to a majority of the Judges hearing the proceeding must be read as a reference to a majority of those remaining Judges.

(3A)

If the death or unavailability occurs while judgment is reserved in the proceeding, the remaining Judges must decide—

(a)

whether the judgment should be produced or completed, and (if so) who should produce or complete the judgment; or

(b)

whether the proceeding should be reheard.

(4)

If, at the time appointed for a session of the Supreme Court, 1 or more Judges are absent, the Judge or Judges present may adjourn or further adjourn the session to some other time.

(5)

If none of the Judges of the Supreme Court is present at the time appointed for a session of the court, the Registrar of the Supreme Court must adjourn the session and may determine the time and place of the next session.

Compare: 2003 No 53 s 30

85 Judgment of Supreme Court

(1)

The judgment of the Supreme Court must be in accordance with the opinion of a majority of the Judges hearing the proceeding concerned.

(2)

If the Judges are equally divided in opinion, the decision appealed from or under review is taken to be affirmed.

Compare: 2003 No 53 s 31

86 Decisions of Supreme Court may be enforced by High Court

A judgment, decree, or order of the Supreme Court may be enforced by the High Court as if it had been given or made by the High Court.

Compare: 2003 No 53 s 32

Registrar and other officers of Supreme Court

87 Appointment of Registrar, Deputy Registrar, and other officers of Supreme Court

(1)

A Registrar of the Supreme Court must be appointed under the State Sector Act 1988.

(2)

There may also be appointed under that Act Deputy Registrars of the Supreme Court, and any other officers required for the conduct of the court’s business.

Compare: 2003 No 53 s 36

88 Powers of Registrar

The Registrar, Deputy Registrars, and other officers of the Supreme Court have the powers and duties conferred or imposed by this Part, rules made under section 145, or any other enactment.

Compare: 2003 No 53 s 37

Subpart 5—Senior court Judges

Head Judges

89 Head of New Zealand judiciary

The Chief Justice is the head of the New Zealand judiciary.

Compare: 2003 No 53 s 18(1)

90 Head of Supreme Court

(1)

The Chief Justice is the head of the Supreme Court and is responsible for ensuring the orderly and efficient conduct of the Supreme Court’s business.

(2)

The Chief Justice may make all necessary arrangements for—

(a)

the sessions of the Supreme Court; and

(b)

the conduct of the Supreme Court’s business.

91 Head of Court of Appeal

(1)

The President of the Court of Appeal is the head of the Court of Appeal and is responsible to the Chief Justice for ensuring the orderly and efficient conduct of the Court of Appeal’s business.

(2)

The President of the Court of Appeal may make all necessary arrangements for—

(a)

the sessions of the Court of Appeal; and

(b)

the conduct of the Court of Appeal’s business.

92 Head of High Court

(1)

The Chief High Court Judge is the head of the High Court and is responsible to the Chief Justice for ensuring the orderly and efficient conduct of the High Court’s business.

(2)

The Chief High Court Judge may make all necessary arrangements for—

(a)

the sessions of the High Court; and

(b)

the conduct of the High Court’s business.

Compare: 1908 No 89 s 4B

Judicial appointment process

93 Attorney-General to publish information concerning judicial appointment process

The Attorney-General must publish information explaining his or her process for—

(a)

seeking expressions of interest for the appointment of Judges and Associate Judges; and

(b)

recommending persons for appointment as a Judge or an Associate Judge.

Eligibility for appointment

94 Eligibility for appointment as Judge or Associate Judge

A person may only be appointed a Judge or an Associate Judge if—

(a)

that person has, for at least 7 years, held a New Zealand practising certificate as a barrister or as a barrister and solicitor; or

(b)

that person—

(i)

holds a degree in law granted or issued by any university within New Zealand; and

(ii)

has been admitted as a barrister and solicitor of the High Court; and

(iii)

has held a practising certificate in a jurisdiction specified by Order in Council—

(A)

for at least 7 years; or

(B)

for a lesser number of years, but, when that number of years is added to the number of years that the person has held a New Zealand practising certificate, the total number of years is at least 7 years.

Compare: 1908 No 89 ss 6, 26C(4)

95 Eligibility for appointment as Court of Appeal Judge

A person may only be appointed a Court of Appeal Judge if that person is—

(a)

a High Court Judge; or

(b)

appointed a High Court Judge at the same time as being appointed a Court of Appeal Judge.

Compare: 1908 No 89 s 57(3)

96 Eligibility for appointment as Supreme Court Judge

A person may only be appointed a Supreme Court Judge if that person is—

(a)

a Court of Appeal Judge; or

(b)

a High Court Judge; or

(c)

appointed a High Court Judge at the same time as being appointed a Supreme Court Judge.

Compare: 2003 No 53 s 20(1)

97 Eligibility for appointment as Chief High Court Judge

A person may only be appointed the Chief High Court Judge if that person—

(a)

is—

(i)

a High Court Judge; or

(ii)

appointed a High Court Judge at the same time as being appointed the Chief High Court Judge; but

(b)

is not—

(i)

a Supreme Court Judge; or

(ii)

a Court of Appeal Judge.

Compare: 1908 No 89 s 4A(1)

98 Eligibility for appointment as President of Court of Appeal

(1)

A person may only be appointed the President of the Court of Appeal if that person is—

(a)

a High Court Judge; or

(b)

appointed a High Court Judge at the same time as being appointed the President of the Court of Appeal.

(2)

If a person who is a Supreme Court Judge is appointed the President of the Court of Appeal, the person immediately ceases to hold office as a Supreme Court Judge.

(3)

A person who ceases to hold office as a Supreme Court Judge under subsection (2) may nevertheless continue in that office to determine, give judgment in, or otherwise complete a proceeding heard by that person (either alone or with others) when he or she sat in the Supreme Court.

99 Eligibility for appointment as Chief Justice

(1)

A person may only be appointed the Chief Justice if that person is—

(a)

a High Court Judge; or

(b)

appointed a High Court Judge at the same time as being appointed the Chief Justice.

(2)

If a person who is a Court of Appeal Judge is appointed the Chief Justice, the person immediately ceases to hold office as a Court of Appeal Judge.

(3)

A person who ceases to hold office as a Court of Appeal Judge under subsection (2) may nevertheless continue in that office to determine, give judgment in, or otherwise complete a proceeding heard by that person (either alone or with others) when he or she sat in the Court of Appeal.

Appointments

100 Judges appointed by Governor-General

(1)

A Judge is appointed by the Governor-General in the name and on behalf of Her Majesty.

(1)

The Chief Justice is appointed by the Governor-General on the recommendation of the Prime Minister.

(2)

Every other Judge, and every Associate Judge, is appointed by the Governor-General on the recommendation of the Attorney-General.

Compare: 1908 No 89 s 4(2); 2003 No 53 s 17(1)(b)

101 Appointment as permanent Judge

(1)

A Judge is appointed as a permanent Judge of a court unless the Judge is appointed as an acting Judge.

(2)

An Associate Judge is appointed as a permanent Associate Judge of the High Court unless the Associate Judge is appointed as an acting Associate Judge.

Compare: 1908 No 89 ss 4C(1), 26D(1), 57A(1)

101A High Court Judge or Associate Judge may not hold lower judicial office

(1)

When a person who is a District Court Judge is appointed a High Court Judge or an Associate Judge, that person ceases to hold office as a District Court Judge.

(2)

A person who ceases to hold office as a District Court Judge under subsection (1) may nevertheless continue in that office to determine, give judgment in, or otherwise complete a proceeding heard by that person (either alone or with others) when he or she sat in the District Court.

(3)

When a person who is an Employment Court Judge is appointed a High Court Judge or an Associate Judge, that person ceases to hold office as an Employment Court Judge.

(4)

A person who ceases to hold office as an Employment Court Judge under subsection (3) may nevertheless continue in that office to determine, give judgment in, or otherwise complete a proceeding heard by that person (either alone or with others) when he or she sat in the Employment Court.

101B Court of Appeal Judge continues as Judge of High Court

When a person who is a Judge of the High Court is appointed a Judge of the Court of Appeal, that Judge person continues to be a Judge of the High Court and may sit as, or exercise the powers of, a Judge of the High Court.

Compare: 1908 No 89 s 57(4)

102 Supreme Court Judge continues as Judge of High Court but no other court

(1)

When a person who is a Judge of the High Court is appointed a Supreme Court Judge, a that person—

(a)

continues to be a High Court Judge and may exercise any of the powers of a High Court Judge; but

(b)

ceases to hold office as a Court of Appeal Judge if, immediately before being appointed a Supreme Court Judge, the person was a Court of Appeal Judge.

(2)

A Supreme Court Judge who ceases to hold office as a Judge of the Court of Appeal (under subsection (1)(b)) may nevertheless continue in that office to determine, give judgment in, or otherwise complete a proceeding heard by the Judge (either alone or with others) when he or she sat in that court.

Compare: 2003 No 53 ss 20(2), 21

104 Terms and conditions of appointment not to be changed without consent

(1)

No changes may be made to the terms and conditions of a Judge’s appointment without the Judge’s consent.

(2)

No changes may be made to the terms and conditions of an Associate Judge’s appointment without the Associate Judge’s consent.

Compare: 1908 No 89 ss 4C(7), 26D(7), 57A(7)

Part-time Judges

105 Attorney-General may authorise Judges to sit part-time

(1)

Judges (other than Supreme Court Judges) and Associate Judges may seek the authorisation of the Attorney-General to sit part-time for a specified period.

(2)

The Attorney-General may grant an authorisation sought by a Judge or an Associate Judge under subsection (1) only with the agreement of—

(a)

the President of the Court of Appeal, if the Judge is a Court of Appeal Judge:

(b)

the Chief High Court Judge, if—

(i)

the Judge is a High Court Judge but not a Court of Appeal Judge; or

(ii)

the Judge is an Associate Judge.

(3)

An authorisation may take effect from—

(a)

the date the Judge or Associate Judge commences office; or

(b)

any other date specified in the authorisation.

(4)

A Judge or an Associate Judge may be authorised to sit part-time for a specified period on more than 1 occasion.

(5)

A Judge or an Associate Judge authorised to sit part-time for a specified period resumes sitting on a full-time basis at the end of that period.

Compare: 1908 No 89 ss 4C(1)–(6), 26D(2)–(6), 57A(2)–(6)

Acting Judges

106 Acting Chief Justice

(1)

During any period that the office of the Chief Justice is vacant, the most senior available Judge of the Supreme Court is authorised to act as Chief Justice.

(2)

During any period that the Chief Justice is unable for any reason (including illness) to perform the duties of that office, the next most senior available Judge of the Supreme Court is authorised to act as Chief Justice.

(4)

A Judge authorised under subsection(1) or (2) to act as Chief Justice is empowered while so acting to—

(a)

perform the duties of the Chief Justice; and

(b)

exercise any power of the Chief Justice.

(5)

This section does not affect clause 12 of the Letters Patent Constituting the Office of Governor-General of New Zealand.

Compare: 2003 No 53 s 19(1)–(3), (5)

107 Acting President of Court of Appeal

(1)

During any period that the office of the President of the Court of Appeal is vacant, the most senior available Judge of the Court of Appeal is authorised to act as President of the Court of Appeal.

(2)

During any period that the President of the Court of Appeal is unable for any reason (including illness) to perform the duties of that office, the next most senior available Judge of the Court of Appeal is authorised to act as President of the Court of Appeal.

(4)

A Judge authorised under subsection(1) or (2) to act as President of the Court of Appeal is empowered while so acting to—

(a)

perform the duties of the President of the Court of Appeal; and

(b)

exercise any power of the President of the Court of Appeal.

Compare: 1908 No 89 s 57(7)

108 Acting Chief High Court Judge

(1)

During any period that the office of the Chief High Court Judge is vacant, the most senior available Judge of the High Court is authorised to act as Chief High Court Judge.

(2)

During any period that the Chief High Court Judge is unable for any reason (including illness) to perform the duties of that office, the next most senior available Judge of the High Court is authorised to act as Chief High Court Judge.

(4)

A Judge authorised under subsection(1) or (2) to act as Chief High Court Judge is empowered while so acting to—

(a)

perform the duties of the Chief High Court Judge; and

(b)

exercise any power of the Chief High Court Judge.

Compare: 1908 No 89 s 4A(4), (5)

109 Appointment of acting Judges of Supreme Court by Chief Justice

(1)

The Chief Justice, in consultation with the President of the Court of Appeal, may appoint a Court of Appeal Judge as an acting Supreme Court Judge to hear and determine 1 or more specified proceedings.

(2)

An appointment under subsection (1) may be made during because of the illness or absence, or anticipated absence, of any Judge of the Supreme Court, or for any other temporary purpose.

(3)

Only 1 Court of Appeal Judge appointed under subsection (1) may be present at a sitting of the Supreme Court for the hearing of a proceeding.

(4)

To avoid doubt, section 102 does not apply to a Court of Appeal Judge appointed under subsection (1).

Compare: 2003 No 53 s 23(1)(4)

110 Appointment of acting Judges of Supreme Court by Governor-General

(1)

The Governor-General may, on the advice of the Attorney-General, appoint 1 or more acting Judges of the Supreme Court.

(2)

A person under the age of 75 years is eligible for appointment under subsection (1) if that person is a retired Supreme Court Judge.

(3)

An appointment under subsection (1) may be made during the illness or absence of any Judge of the Supreme Court, or for any other temporary purpose.

(2)

A person is eligible for appointment under subsection (1) if that person is

(a)

a retired Supreme Court Judge; and

(b)

under the age of 75 years.

(4)

During the term of his or her appointment under subsection (1), an acting Judge of the Supreme Court may only act to the extent authorised by the Chief Justice under subsection (5).

(5)

An acting Judge of the Supreme Court may be authorised by the Chief Justice to

(a)

hear and determine proceedings within a specified period:

(b)

hear and determine 1 or more specified proceedings.

(5)

The Chief Justice may authorise an acting Judge to act as a member of the Supreme Court

(a)

to hear and determine any proceedings within a specified period; or

(b)

to hear and determine 1 or more specified proceedings.

(6)

The Chief Justice may authorise an acting Judge to act as a member of the Supreme Court only if satisfied that

(a)

there is a vacancy in the Supreme Court; or

(b)

a Judge of the Supreme Court is for any reason unavailable to hear proceedings or particular proceedings.

(7)

An acting Judge is authorised when the Chief Justice gives the Attorney-General a certificate under section 114.

Compare: 2003 No 53 s 23(1), (3), (4)(6)

111 Appointment of acting Judges of Court of Appeal

(1)

The Governor-General may, on the advice of the Attorney-General, appoint 1 or more acting Judges of the Court of Appeal.

(2)

A person under the age of 75 years is eligible for appointment under subsection (1) if that person has retired or resigned from office as—

(a)

a Court of Appeal Judge; or

(b)

a High Court Judge.

(3)

An appointment under subsection (1) may be made during because of the illness or absence of any Judge of the Court of Appeal, or for any other temporary purpose.

(4)

During the term of his or her appointment, an acting Judge of the Court of Appeal may only act to the extent authorised by the President of the Court of Appeal.

(5)

An acting Judge of the Court of Appeal may be authorised by the President of the Court of Appeal to hear and determine proceedings within a specified period.

112 Appointment of acting Judges of High Court

(1)

The Governor-General may, on the advice of the Attorney-General, appoint 1 or more acting Judges of the High Court.

(2)

A person under the age of 75 years is eligible for appointment under subsection (1) if that person—

(a)

has retired or resigned from office as—

(i)

a High Court Judge; or

(ii)

an Associate Judge; or

(iii)

a District Court Judge; or

(b)

is—

(i)

an Associate Judge; or

(ii)

a District Court Judge.

(3)

An appointment under subsection (1) may be made during because of the illness or absence of any Judge of the High Court, or for any other temporary purpose.

(4)

During the term of his or her appointment, an acting Judge of the High Court may only act to the extent authorised by the Chief High Court Judge.

(5)

An acting Judge of the High Court may be authorised by the Chief High Court Judge to—

(a)

act during 1 or more specified periods; and

(b)

act in 1 or more specified places.

Compare: 1908 No 89 ss 11(1), 11A(1), (2)

113 Appointment of acting Associate Judges

(1)

The Governor-General may, on the advice of the Attorney-General, appoint 1 or more acting Associate Judges.

(2)

A person is eligible for appointment under subsection (1) if the person—

(a)

is eligible under section 94 to be appointed an Associate Judge and is under the age of 75 years; or

(b)

is a District Court Judge; or

(c)

has retired or resigned from office as a District Court Judge.

(3)

An appointment under subsection (1) may be made during because of the illness or absence of any Associate Judge, or for any other temporary purpose.

(4)

During the term of his or her appointment, an acting Associate Judge may only act to the extent authorised by the Chief High Court Judge.

(5)

An acting Associate Judge may be authorised by the Chief High Court Judge to—

(a)

act during 1 or more specified periods; and

(b)

act in 1 or more specified places.

Compare: 1908 No 89 s 26H(1)

114 Requirements before Attorney-General gives advice on appointment of acting Judge

(1)

Before advising the Governor-General to make an appointment under any of sections 110 to 113, the Attorney-General must have received from the Chief Justice a certificate certifying that the appointment is necessary for the proper conduct of the court in respect of which the appointment is to be made.

(2)

A certificate required by subsection (1) must be signed by the Chief Justice.

Compare: 1908 No 89 s 11B; 2003 No 53 s 23(6)

115 Term of appointment of acting Judges appointed by Governor-General

(1)

An appointment under any of sections 110 to 113 must be for a specified term that—

(a)

is not more than the time until the Judge will reach the age of 75 years; and

(b)

in any case, is not more than 2 years.

(2)

When an acting Judge’s term of appointment ends, the acting Judge, if under the age of 75 years, may at any time be reappointed for a further 1 or more terms.

(3)

However, an acting Judge may not be reappointed for a term that, when aggregated with all previous terms, exceeds 5 years if that acting Judge is—

(a)

an acting Court of Appeal Judge appointed under section 111; or

(b)

an acting High Court Judge appointed under section 112.

Compare: 1908 No 89 s 11(2); 2003 No 53 s 23(2)

116 Term of appointment of acting Associate Judges

(1)

An appointment under section 113 must be for a specified term that—

(a)

is not more than the time until the Associate Judge will reach the age of 75 years; and

(b)

in any case, is not more than 2 years.

(2)

When an acting Associate Judge’s term of appointment ends, the acting Associate Judge, if under the age of 75 years, may at any time be reappointed under section 113 for a further 1 or more terms.

(3)

However, an acting Associate Judge may not be reappointed under section 113 for a term that, when aggregated with all previous terms, exceeds 5 years.

Compare: 1908 No 89 s 26H(2)–(4)

117 Jurisdiction, powers, protections, etc, of acting Judges

(1)

An acting Judge, while acting to the extent authorised as a member of a court, has the jurisdiction, powers, protections, privileges, and immunities of a Judge of that court.

(2)

An acting Associate Judge, while acting to the extent authorised as a member of the High Court, has the jurisdiction, powers, protections, privileges, and immunities of an Associate Judge of that court.

Compare: 1908 No 89 ss 11A(4), 26Q; 2003 No 53 s 23(7)

118 Conclusive proof of authority to act

The fact that an acting Judge or acting Associate Judge does the following is conclusive proof of the Judge’s authority to do so:

(a)

performs or exercises any function, duty, or power in reliance on section 106(4), 107(4), or 108(4):

(b)

acts to the extent authorised under section 109(1), 110(5), 111(5), 112(5), or 113(5) as a member of a court.

Compare: 1908 No 89 s 4A(6); 2003 No 53 ss 19(4), 23(9)

Seniority of Judges

119 Chief Justice most senior Judge

The Chief Justice is senior to all other Judges.

Compare: 2003 No 53 s 18(1)

120 Seniority of Supreme Court Judges

(1)

Supreme Court Judges are senior to—

(a)

Court of Appeal Judges; and

(b)

High Court Judges who are not Supreme Court Judges.

(2)

Supreme Court Judges (other than the Chief Justice) are senior to each other in order of date of appointment.

(3)

If 2 or more Supreme Court Judges (other than the Chief Justice) have the same date of appointment, then seniority among those Judges is determined as follows:

(a)

Judges who have been Court of Appeal Judges are senior to Judges who have not been Court of Appeal Judges:

(b)

Judges who have been Court of Appeal Judges have among themselves the seniority they would have if still Court of Appeal Judges:

(c)

Judges who have not been Court of Appeal Judges but have previously been High Court Judges have seniority among themselves according to their seniority as High Court Judges:

(d)

Judges who have not previously been High Court Judges but have previously held other judicial office in New Zealand are senior to Judges who have not previously held judicial office in New Zealand.

Compare: 2003 No 53 s 18(2)–(4)

121 Seniority of Court of Appeal Judges

(1)

Court of Appeal Judges are senior to High Court Judges.

(2)

The President of the Court of Appeal is senior to all other Court of Appeal Judges.

(3)

Court of Appeal Judges (other than the President) are senior to each other in order of date of appointment.

(4)

If 2 or more Court of Appeal Judges (other than the President) have the same date of appointment, then seniority among those Judges is determined according to their seniority as High Court Judges.

Compare: 1908 No 89 s 57(6)–(6C)

122 Seniority of High Court Judges

(1)

High Court Judges are senior to—

(a)

Associate Judges; and

(b)

District Court Judges.

(2)

As between Among the High Court Judges who are not Supreme Court Judges or Court of Appeal Judges,—

(a)

the Chief High Court Judge is senior to those Judges:

(b)

the other Judges are senior to each other in order of date of appointment:

(c)

2 or more High Court Judges having the same date of appointment—

(i)

have seniority according to the precedence assigned to them by the Governor-General on appointment; or

(ii)

if no precedence was assigned to them, according to the order in which they took the judicial oath.

(3)

To avoid doubt, a Court of Appeal Judge who resigns from that office without resigning as a High Court Judge has, as a High Court Judge, the seniority that he or she would have had if he or she had not been appointed a Court of Appeal Judge.

Compare: 1908 No 89 ss 4(3), 57(6D)

123 Permanent Judges senior to acting Judges

A permanent Judge of a court is senior to an acting Judge of the same court.

Compare: 1908 No 89 s 4(3A); 2003 No 53 s 18(5)

124 Seniority of acting Judges

Acting Judges of a court have among themselves the seniority they would have if they were permanent Judges of that court.

125 Seniority of Associate Judges

(1)

Associate Judges are senior to each other in order of date of appointment.

(2)

If 2 or more Associate Judges have the same date of appointment, then seniority among those Judges is determined according to—

(a)

the precedence assigned to them by the Governor-General on appointment; or

(b)

if no precedence was assigned to them, the order in which they took the judicial oath.

Tenure of office

126 Tenure of Chief Justice

The Chief Justice continues to hold the office of Chief Justice until the earliest of the following:

(a)

the Chief Justice resigns from that office:

(b)

the Chief Justice resigns from office as a High Court Judge:

(c)

the Chief Justice retires:

(d)

the Chief Justice is removed from that office.

127 Tenure of President of Court of Appeal

The President of the Court of Appeal continues to hold the office of President of the Court of Appeal until the earliest of the following:

(a)

the President is appointed a Supreme Court Judge:

(b)

the President resigns from that office:

(c)

the President resigns from office as a High Court Judge:

(d)

the President retires:

(e)

the President is removed from that office.

128 Tenure of Chief High Court Judge

The Chief High Court Judge continues to hold the office of Chief High Court Judge until the earliest of the following:

(a)

the Judge is appointed a Supreme Court Judge:

(b)

the Judge is appointed a Court of Appeal Judge:

(c)

the Judge resigns from that office:

(d)

the Judge resigns from office as a High Court Judge:

(e)

the Judge retires:

(f)

the Judge is removed from that office.

Compare: 1908 No 89 s 4A(2)

129 Tenure of Supreme Court Judges, Court of Appeal Judges, High Court Judges, and Associate Judges

(1)

A Supreme Court Judge (other than the Chief Justice) continues to hold the office of Supreme Court Judge until the earliest of the following:

(a)

the Judge resigns from that office:

(ab)

the Judge ceases to hold office as a Supreme Court Judge:

(b)

the Judge resigns from office as a High Court Judge:

(c)

the Judge retires:

(d)

the Judge is removed from that office.

(2)

A Court of Appeal Judge (other than the President of the Court of Appeal) continues to hold the office of Court of Appeal Judge until the earliest of the following:

(a)

the Judge resigns from that office:

(ab)

the Judge ceases to hold office as a Court of Appeal Judge:

(b)

the Judge resigns from office as a High Court Judge:

(c)

the Judge retires:

(d)

the Judge is removed from that office.

(3)

A High Court Judge (other than the Chief High Court Judge) continues to hold the office of High Court Judge until the earliest of the following:

(a)

the Judge resigns from that office:

(b)

the Judge retires:

(c)

the Judge is removed from that office.

(4)

An Associate Judge continues to hold the office of Associate Judge until the earliest of the following:

(a)

the Judge resigns from that office:

(b)

the Judge retires:

(c)

the Judge is removed from that office.

Compare: 1908 No 89 ss 26C(6), 57(5); 2003 No 53 s 22

130 Resignation

(1)

A Judge may at any time, by written notice to the Attorney-General,—

(a)

resign from office as a High Court Judge; or

(b)

resign from any of the following offices without resigning from office as a High Court Judge:

(i)

Chief Justice:

(ii)

President of the Court of Appeal:

(iii)

Court of Appeal Judge:

(iv)

Chief High Court Judge.

(2)

In subsection (1), Judge includes—

(a)

an acting Judge; and

(b)

an Associate Judge; and

(c)

an acting Associate Judge.

Compare: 1908 No 89 s 26E(2); 2003 No 53 s 23(10)

131 Governor-General must approve certain resignations

Before written notice is given to the Attorney-General under section 130(1), the approval of the Governor-General is required if—

(a)

the Chief Justice proposes to resign from that office without resigning from office as a Supreme Court Judge or High Court Judge:

(b)

the President of the Court of Appeal proposes to resign from that office without resigning from office as a Court of Appeal Judge or a High Court Judge:

(c)

a Court of Appeal Judge (other than the President of the Court of Appeal) proposes to resign from office without resigning from office as a High Court Judge:

(d)

the Chief High Court Judge proposes to resign from that office without resigning from office as a High Court Judge.

Compare: 1908 No 89 ss 4A(3), 57(5)

132 Judges to retire at 70 years

(1)

Every Judge must retire on attaining the age of 70 years, but may be appointed an acting Judge.

(2)

Every Associate Judge must retire on attaining the age of 70 years, but may be appointed an acting Associate Judge.

Compare: 1908 No 89 ss 13, 26E(3)

133 Removal from office

(1)

A High Court Judge may be removed from office only in accordance with section 23 of the Constitution Act 1986.

(2)

The Governor-General may, if the Governor-General thinks fit, remove an Associate Judge from office for inability or misbehaviour.

Compare: 1908 No 89 s 26E(1)

Salaries and allowances

134 Salaries and allowances of permanent Judges and Associate Judges

Permanent Judges and Associate Judges must be paid, out of public money, without further appropriation than this section,—

(a)

salaries at such rates as the Remuneration Authority from time to time determines; and

(b)

such allowances as the Remuneration Authority from time to time determines; and

(c)

such additional allowances, being travelling allowances or other incidental or minor allowances, as the Governor-General may from time to time determine.

Compare: 1908 No 89 ss 9A(1), 26F(1); 1947 No 16 s 6(1)

135 Salaries and allowances of part-time Judges

The salary and allowances payable for a period during which a Judge or an Associate Judge acts on a part-time basis must be calculated and paid as a pro rata proportion of the salary and allowances for a permanent Judge of that court (other than the head of that court) or an Associate Judge.

Compare: 1908 No 89 ss 9A(4), 26F(5)

136 Salaries and allowances of acting Judges

An acting Judge or acting Associate Judge, while acting as a member of a court to the extent authorised, but not otherwise, must be paid, out of public money, without further appropriation than this section,—

(a)

a salary at the rate for the time being payable to a permanent Judge of that court (other than the head of that court) or an Associate Judge; and

(b)

the allowances referred to in section 134(c) payable to a Judge of that court (other than the head of that court) or an Associate Judge.

Compare: 1908 No 89 ss 11(3), 11A(3); 2003 No 53 s 23(8)

136A Superannuation of acting Judges

(1)

A superannuation subsidy must not be paid to a person who is appointed as an acting Judge or acting Associate Judge under section 110, 111, 112(2)(a), or 113(2)(c) (which relate to retired Judges and Judges who have resigned from office).

(2)

A person who is appointed as an acting Judge or acting Associate Judge under section 109, 112(2)(b), or 113(2)(b) (which relate to serving Judges) must not be paid a superannuation subsidy at a rate that is higher than the rate that would have been payable calculated only on the basis of the person’s permanent appointment.

(3)

Subsection (1) does not apply to a compulsory employer contribution within the meaning of section 101A of the KiwiSaver Act 2006.

137 Superannuation or retiring allowances of Associate Judges

For the purpose of providing a superannuation fund or retiring allowance for persons appointed as Associate Judges, sums by way of subsidy or contribution may from time to time be paid under Part 5B of the Government Superannuation Fund Act 1956 or to any retirement scheme (within the meaning of section 6(1) of the Financial Markets Conduct Act 2013) in accordance with a determination of the Remuneration Authority.

Compare: 1908 No 89 s 26G

138 Higher duties allowance

(1)

In addition to the payments specified in sections 134 to 137, a higher duties allowance calculated in accordance with subsection (2) is—

(a)

payable to a High Court Judge who—

(i)

is, or has been, serving as a member of—

(A)

a criminal or civil division of the Court of Appeal; or

(B)

the full Court of Appeal; but

(ii)

is not, or was not, a permanent Court of Appeal Judge; and

(b)

payable only in respect of the periods of the Judge’s service as a member of the division or full Court of Appeal.

(2)

The higher duties allowance is calculated at a rate expressed per day of service as a member of the division or full court in accordance with the following formula:

(a – b) × c/d

where—

a

is the applicable yearly rate of salary determined by the Remuneration Authority to be payable to a permanent Court of Appeal Judge

b

is the applicable yearly rate of salary determined by the Remuneration Authority to be payable to a Judge who is not a permanent Court of Appeal Judge

c

is 0.0383561 (the standard payroll factor, which represents the proportion of an annual salary that is paid per fortnight)

d

is 10 (the number of working days per fortnight).

(3)

In this section permanent Court of Appeal Judge means a Court of Appeal Judge holding office under section 43(2).

Compare: 1908 No 89 s 9A(1A)

139 Salary of Judge not to be reduced

(1)

As provided in section 24 of the Constitution Act 1986, the salary of a Judge or an Associate Judge must not be reduced during the continuance of the Judge’s appointment.

(2)

For the purpose of subsection (1), neither of the following is a reduction of salary:

(a)

the payment of a salary on a pro rata basis under section 135:

(b)

the cessation of the payment of a higher duties allowance payable and calculated under section 138.

Compare: 1908 No 89 ss 9A(5), 26F(2), (6)

Restrictions

140 Judge not to undertake other employment or hold other office

(1)

A Judge or an Associate Judge must not undertake any other paid employment or hold any other office (whether paid or not) without the approval of the Chief Justice in consultation (in the case of an Associate Judge, a High Court Judge, or a Court of Appeal Judge) with the appropriate head of court.

(2)

An approval under subsection (1) may only be given if the appropriate head of court is satisfied that undertaking the employment or holding the office is consistent with the Judge’s judicial office.

(3)

However, subsection (1) does not apply to another office if an enactment permits or requires the office to be held by a Judge.

(4)

In this section, appropriate head of court means—

(a)

the President of the Court of Appeal, if the Judge is a Court of Appeal Judge:

(b)

the Chief High Court Judge, if—

(i)

the Judge is a High Court Judge but not a Court of Appeal Judge; or

(ii)

the Judge is an Associate Judge.

Compare: 1908 No 89 ss 4(2A), 26C(5)

141 Protocol relating to activities of Judges

(1)

The Chief Justice must develop and publish a protocol containing guidance on—

(a)

the employment, or types of employment, that he or she considers may be undertaken consistent with being a Judge or an Associate Judge; and

(b)

the offices, or types of offices, that he or she considers may be held consistent with being a Judge or an Associate Judge.

(2)

The Chief Justice may only develop and publish a protocol under subsection (1) after consultation with—

(a)

the President of the Court of Appeal; and

(b)

the Chief High Court Judge.

142 Judge not to practise as lawyer

(1)

A Judge must not practise as a lawyer.

(2)

In subsection (1), Judge includes—

(a)

an acting Judge; and

(b)

an Associate Judge; and

(c)

an acting Associate Judge.

Subpart 6—Rules of court and miscellaneous provisions

Rules of practice and procedure

143 Purpose of rules of practice and procedure

The purpose of rules of practice and procedure is to facilitate—

(a)

the just, speedy, and inexpensive dispatch of the business of the High Court, the Court of Appeal, and the Supreme Court; and

(b)

the administration of justice.

Compare: 1908 No 89 s 51C(1)

144 High Court Rules

(1)

The practice and procedure of the High Court in all civil proceedings is regulated by the High Court Rules.

(2)

The High Court Rules are subject to any other rules that are made under section 145 that regulate the practice and procedure of any senior court in any class of civil proceedings.

(3)

If any provision of the High Court Rules or of any rules made under section 145 restricts or excludes the application of any provisions of the High Court Rules, the provision giving effect to the restriction or exclusion has effect according to its terms.

(4)

If in any civil proceedings any question arises as to the application of any provision of the High Court Rules or of any rules made under section 145, the court may, either on the application of any party or of its own motion on its own initiative, determine the question and give any directions that it thinks fit.

(5)

Subsection (1) is subject to—

(a)

subsections (2) to (4); and

(b)

sections 9, 38 to 41, 145 to 152, 158, 161, 170, 172, 177, and 178.

Compare: 1908 No 89 s 51

144A High Court Rules part of Act

(1)

The High Court Rules set out in Schedule 2 of the Judicature Act 1908 as at the date that this Act receives the Royal Assent continue in force and those rules, as altered, amended, added to, or revoked under section 145, are deemed to be part of this Act.

(2)

Despite subsection (1), the High Court Rules do not need to be published as part of this Act.

(3)

See section 151, which provides for how the High Court Rules must be published).

145 Rules of practice and procedure generally

(1)

The Governor-General may, by Order in Council, make rules of practice and procedure for each of the senior courts relating to the purpose stated in section 143.

(2)

Rules may be made only with the concurrence of the Chief Justice and 2 or more members of the Rules Committee of whom at least 1 is a Judge of the High Court.

(3)

The power to make rules includes the power to—

(a)

alter, amend, add to, or revoke existing High Court Rules, other rules of the High Court, rules of the Court of Appeal, or rules of the Supreme Court; and

(b)

revoke existing High Court Rules, other rules of the High Court, rules of the Court of Appeal, or rules of the Supreme Court and replace them with new rules; and

(c)

fix scales of costs.

Compare: 1908 No 89 s 51C

146 Rules of practice and procedure of High Court

Without limiting the matters on which rules may be made under section 145, rules may be made under that section in relation to the practice and procedure of the High Court—

(a)

providing for the enforcement of judgments or orders, including by any of the following:

(i)

an attachment order:

(ii)

a charging order:

(iii)

a sale order:

(iv)

a possession order:

(v)

a freezing order:

(vi)

an arrest order:

(vii)

a search order:

(viii)

a contempt order:

(ix)

a sequestration order:

(b)

providing that the purchaser of personal property sold by order of the court by way of enforcement of a judgment obtains good title to the property free of all ownership interests and other proprietary interests held in the property before that sale.

147 Rules of practice and procedure of Court of Appeal and Supreme Court

Without limiting the matters on which rules may be made under section 145, rules may be made under that section in relation to the practice and procedure of the Court of Appeal and the Supreme Court—

(a)

providing for the appointment of technical advisers, including—

(i)

the information to be given to a party to an appeal, before a technical adviser is appointed for the appeal,—

(A)

about the persons who are considered suitable for appointment; and

(B)

about the matters on which the assistance of the proposed technical adviser is to be sought:

(ii)

the submissions that those parties may make to the court about the proposed appointment of a technical adviser and the assistance to be given by the technical adviser:

(b)

providing for the conduct of proceedings involving technical advisers.

Compare: 1908 No 89 s 99D

148 Rules conferring specified jurisdiction and powers of High Court Judge on Registrars and Deputy Registrars

(1)

Rules may be made under section 145

(a)

conferring on a Registrar or Deputy Registrar of the High Court or the Court of Appeal or the Supreme Court the jurisdiction and powers of a Judge in chambers conferred by this Part or any other Act or by rules made under that section:

(b)

containing any provisions that may be necessary to enable a Registrar or Deputy Registrar to exercise the jurisdiction and powers of a Judge in chambers.

(2)

The jurisdiction and powers may be conferred on any of those specified offices or classes of those offices.

(3)

A Registrar or Deputy Registrar on whom jurisdiction and powers are conferred may refer a matter to a Judge of the same court if the Registrar or Deputy Registrar considers the matter to be of special difficulty. The Judge may—

(a)

dispose of the matter; or

(b)

refer the matter back to the Registrar or Deputy Registrar with any directions the Judge thinks fit.

(4)

A party to a proceeding or an intended proceeding who is dissatisfied with an order or a decision made by a Registrar or Deputy Registrar under rules made under section 145 may apply to the same court to review the order or decision. The court may then make any order or decision the court thinks just.

(5)

The fact that a Registrar or Deputy Registrar has jurisdiction and powers under the rules does not prevent a Judge of the same court from exercising the jurisdiction and powers.

Compare: 1908 No 89 s 51F

149 Rules of practice and procedure under other Acts

The power to make rules of practice and procedure in relation to civil proceedings in the High Court, the Court of Appeal, or the Supreme Court under an Act other than this Part must be exercised in the manner prescribed by section 145.

Compare: 1908 No 89 s 51D

150 Power to prescribe procedure on applications to High Court, Court of Appeal, or Supreme Court

(1)

Despite anything to the contrary in any Act, rules may be made under section 145 prescribing the form and manner in which any class or classes of applications to the High Court or a High Court Judge or to the Court of Appeal or to the Supreme Court are to be made.

(2)

To the extent that the provisions of any Act prescribing the form or manner in which any of those applications are to be made (whether by petition, motion, summons, or otherwise) are inconsistent with or repugnant to rules made or having effect under this Part, the Act prescribing that form or manner is deemed to be subject to the rules made or having effect under this Part.

Compare: 1908 No 89 s 51E

151 Publication of High Court Rules under Legislation Act 2012

(1)

The High Court Rules, and any reprint of the High Court Rules, may be published under the Legislation Act 2012 as if the rules were a legislative instrument within the meaning of that Act.

(2)

The Legislation Act 2012 applies accordingly to rules published in that way.

Compare: 1908 No 89 s 51A

151 Publication of High Court Rules under Legislation Act 2012

(1)

The High Court Rules and reprints of those rules must be published under the Legislation Act 2012, as the High Court Rules 2016, as if they were a legislative instrument within the meaning of the Legislation Act 2012.

(2)

The Legislation Act 2012 applies accordingly to the rules published in that way.

(3)

However, the Chief Parliamentary Counsel may add to the instrument, as published,

(a)

the information specified in section 12(2)(a) to (d) of the Legislation Act 2012; and

(b)

any other information that the Chief Parliamentary Counsel considers to be necessary or appropriate for the purposes of arranging publication of the instrument and making it accessible for users.

152 Rules Committee

(1)

For the purposes of this Part, Part 2, the Criminal Procedure Act 2011, and any other relevant Act, there continues to be a Rules Committee consisting of—

(a)

the Chief Justice:

(b)

the Chief High Court Judge:

(c)

2 other Judges of the High Court appointed by the Chief Justice:

(d)

the Chief District Court Judge:

(e)

1 other District Court Judge appointed by the Chief Justice on the recommendation of the Chief District Court Judge:

(f)

the Attorney-General:

(g)

the Solicitor-General:

(h)

the chief executive of the ministry responsible for the administration of this Part:

(i)

2 persons, who are barristers and solicitors of the High Court, nominated by the Council of the New Zealand Law Society and approved by the Chief Justice.

(2)

The Chief Justice may appoint any other person to be a member of the Rules Committee for a special purpose. That person holds office during the pleasure of the Chief Justice.

(3)

The members appointed under subsection (1)(c), (e), and (i)

(a)

must be appointed for terms not exceeding 3 years:

(b)

may be reappointed:

(c)

may resign office by notice in writing to the Chief Justice.

(4)

The Rules Committee is a statutory board within the meaning of the Fees and Travelling Allowances Act 1951.

(5)

The members of the Rules Committee referred to in subsections (1)(i) and (2) may be paid fees, salary, and allowances in accordance with the Fees and Travelling Allowances Act 1951.

Compare: 1908 No 89 s 51B

Regulations

153 Regulations

(1)

The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:

(a)

prescribing the applications, matters, and proceedings for which fees are payable under this Part:

(b)

prescribing scales of fees for the purposes of this Part and for the purposes of any applications, matters, and proceedings before a senior court under this Part or any other enactment:

(c)

prescribing the fees, travelling allowances, and expenses payable to interpreters and to persons giving evidence in proceedings to which this Part applies:

(d)

in relation to a service performed by a Registrar or Deputy Registrar under this Part and specified in regulations made under paragraph (e), authorising a Registrar or Deputy Registrar to charge a reasonable fee calculated on the actual expense incurred in performing the service:

(e)

specifying the services (other than services for which a fee is already prescribed under this Part) performed by a Registrar or Deputy Registrar under this Part for which that person may charge a fee:

(f)

making provision in relation to the postponement, under the regulations, of the payment of any fee, which provision may (without limitation) include provision—

(i)

for the recovery of the fee after the expiry of the period of postponement; and

(ii)

for restrictions to apply (after the expiry of the period of postponement and so long as the fee remains unpaid) on the steps that may be taken in the proceedings in respect of which the fee is payable:

(g)

altering or revoking any rules relating to fees contained in the High Court Rules, any rules made under section 145, or any other rules of court:

(h)

providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Part and for its due administration.

(2)

Regulations made under this section may prescribe different fees in respect of proceedings in different courts.

Compare: 1908 No 89 s 100A

154 Regulations providing for waiver, etc, of fees

(1)

In order to promote access to justice, the Governor-General may, by Order in Council, make regulations authorising a Registrar or Deputy Registrar of a senior court to waive, reduce, or postpone the payment of a fee required in connection with a proceeding or an intended proceeding, or to refund in whole or in part a fee that has already been paid.

(2)

Regulations made under subsection (1) must provide that a Registrar or Deputy Registrar may only exercise a power under the regulations if he or she is satisfied on the basis of prescribed criteria that—

(a)

the person responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or

(b)

unless 1 or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued.

(3)

For the purposes of subsection (2), regulations may prescribe criteria—

(a)

for assessing a person’s ability to pay a fee; and

(b)

for identifying proceedings that concern matters of genuine public interest.

(4)

No fee is payable for an application for the exercise of a power specified in subsection (1).

Compare: 1908 No 89 s 100A(1)(d), (da)

155 Postponement of fees

(1)

The Governor-General may, by Order in Council, make regulations authorising a Registrar or Deputy Registrar to postpone the payment of a fee pending the determination of—

(a)

an application for the exercise of a power specified in section 154(1); or

(b)

an application for review under section 157.

(2)

No fee is payable for an application for the exercise of a power specified in subsection (1).

Compare: 1908 No 89 s 100A(1)(db)

156 Manner in which section 154 or 155 applications to be made

Regulations made under section 153 may provide for the manner in which an application for the exercise of a power specified in section 154(1) or 155(1) is to be made, including, without limitation, requiring an application to be in a form approved for the purpose by the chief executive of the Ministry of Justice.

Compare: 1908 No 89 s 100A(1)(dd)

157 Review of Registrar’s decision concerning fees

(1)

A person who disagrees with a decision of a Registrar or Deputy Registrar under regulations made under section 154(1) may apply to a Judge or an Associate Judge of the relevant court to review the decision.

(2)

The application must be made within—

(a)

20 working days after the date on which the applicant is notified of the decision; or

(b)

any further time that the Judge or Associate Judge allows on application, which may be made either before or after the expiry of that period.

(3)

The application may be made informally.

(4)

A review is—

(a)

conducted by way of rehearing of the matter in respect of which the Registrar or Deputy Registrar made the decision; and

(b)

dealt with on the papers, unless the Judge or Associate Judge directs otherwise.

(5)

The Judge or Associate Judge may confirm, modify, or reverse the decision of the Registrar or Deputy Registrar.

(6)

No fee is payable on the application.

Compare: 1908 No 89 s 100B

157A Judge or Registrar may waive certain fees

A Judge or Registrar of a senior court may, subject to any terms or conditions that the Judge or Registrar thinks fit, waive the payment of a fee prescribed under section 153 for accessing documents (in whole or in part) if the Judge or Registrar is satisfied that the person is unable, or should not be required, to pay the fee.

Costs

158 Jurisdiction of court to award costs in all cases

(1)

If any Act confers jurisdiction on the High Court or a Judge of the High Court for the purpose of any civil proceedings or any criminal proceedings or any appeal, without expressly conferring jurisdiction to award or otherwise deal with the costs of the proceedings or appeal, jurisdiction to award and deal with those costs and to make and enforce orders relating to costs must be treated as also having been conferred on the court or Judge.

(2)

Costs may be awarded or otherwise dealt with under subsection (1) at the discretion of the court or Judge, and may, if the court or Judge thinks fit, be ordered to be charged on or paid out of any fund or estate before the court.

Compare: 1908 No 89 s 51G

Appointment of technical advisers

159 Court of Appeal and Supreme Court may appoint technical advisers

(1)

The Court of Appeal or the Supreme Court may appoint a suitably qualified person (a technical adviser) to assist it by giving advice in an appeal in a proceeding involving a question arising from evidence relating to scientific, technical, or economic matters, or from other expert evidence, if the court is of the opinion that it is desirable to have expert assistance.

(2)

The technical adviser must give the advice in the manner directed by the court during the course of the proceeding on any question referred to the technical adviser.

(3)

Advice given by a technical adviser—

(a)

is information provided to the court; and

(b)

may be given the weight the court thinks fit.

Compare: 1908 No 89 s 99B

160 Appointment and other matters

(1)

A technical adviser may be appointed by the court under section 159 on—

(a)

its own initiative; or

(b)

the application of a party to the proceeding.

(2)

A technical adviser may be removed from office by the court for disability affecting the performance of duty, neglect of duty, bankruptcy, or misconduct proved to the satisfaction of the court.

(3)

A technical adviser may resign office by notice in writing to the court.

(4)

The remuneration of a technical adviser must—

(a)

be fixed by the court; and

(b)

include a daily fee for each day on which the technical adviser is required to assist the court.

(5)

Civil or criminal proceedings may not be commenced against a technical adviser in relation to advice given to the court in good faith.

Compare: 1908 No 89 s 99C

Contempt

161 Contempt of court

(1)

This section applies if any person—

(a)

wilfully insults a judicial officer, or any Registrar, or any officer of the court, or any juror, or any witness, during his or her sitting or attendance in court, or in going to or returning from the court; or

(b)

wilfully interrupts the proceedings of a court or otherwise misbehaves in court; or

(c)

wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceedings.

(2)

If this section applies,—

(a)

any constable or officer of the court, with or without the assistance of any other person, may, by order of a judicial officer Judge or an Associate Judge, take the person into custody and detain him or her until the rising of the court; and

(b)

the judicial officer Judge or an Associate Judge may, if he or she thinks fit, sentence the person to—

(i)

imprisonment for a period not exceeding 3 months; or

(ii)

a fine not exceeding $1,000 for each offence.

(3)

Nothing in this section limits or affects any power or authority of a court to punish any person for contempt of court in any case to which this section does not apply.

Compare: 2011 No 81 s 365

Restriction on commencing or continuing proceeding

162 Judge may make order restricting commencement or continuation of proceeding

(1)

A Judge of the High Court may make an order (a section 162 order) restricting a person from commencing or continuing a civil proceeding.

(2)

The order may have—

(a)

a limited effect (a limited order); or

(b)

an extended effect (an extended order); or

(c)

a general effect (a general order).

(3)

A limited order restrains a party from continuing or commencing or continuing civil proceedings on a particular matter in a senior court, another court, or a tribunal.

(4)

An extended order restrains a party from continuing or commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal.

(5)

A general order restrains a party from continuing or commencing or continuing civil proceedings in a senior court, another court, or a tribunal.

(6)

Nothing in this section limits the court’s inherent power to control its own proceedings.

163 Grounds for making section 162 order

(1)

A Judge may make a limited order under section 162 if, in at least 2 civil proceedings about the same matter in any court or tribunal, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.

(2)

A Judge may make an extended order under section 162 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.

(3)

A Judge may make a general order if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.

(4)

In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.

(5)

The proceedings concerned must be proceedings instituted or conducted commenced or continued by the party to be restrained, whether against the same person or different persons.

(6)

For the purpose of this section and sections 164 and 165, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.

164 Terms of section 162 order

(1)

A An order made under section 162 order may restrain a party from commencing or continuing any proceeding (whether generally or against any particular person or persons) of any type specified in the order without first obtaining the leave of the High Court.

(2)

A An order made under section 162 order, whether limited, extended, or general, has effect for a period of up to 3 years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed 5 years) if he or she is satisfied that there are exceptional circumstances justifying the longer period.

165 Procedure and appeals relating to section 162 orders

(1)

A party to any proceeding may apply for a limited order or an extended order.

(2)

Only the Attorney-General may apply for a general order.

(2A)

A Judge of the High Court may make a limited order, an extended order, or a general order either on application (under subsection (1) or (2), as applicable) or on his or her own initiative.

(3)

An application for leave to continue or issue commence a civil proceeding by a party subject to a section 162 order may be made without notice, but the court may direct that the application for leave be served on any specified person.

(3A)

An application for leave must be determined on the papers, unless the Judge considers that an oral hearing should be conducted because there are exceptional circumstances and it is appropriate to do so in the interests of justice. The Judge’s determination of the application for leave is final.

(3B)

The Judge’s determination of an application for leave is final.

(4)

A section 162 order does not prevent or affect the commencement of a private criminal prosecution in any case.

(5)

The party against whom a section 162 order is made may appeal against the order to—

(a)

the Court of Appeal:

(b)

the Supreme Court, with the leave of that court, in any case.

(6)

The appellant in an appeal to the Court of Appeal under subsection (5) or the applicant for the section 162 order concerned may, with the leave of the Supreme Court, appeal to the Supreme Court against the determination of that appeal by the Court of Appeal.

(7)

A court determining an appeal under this section has the same powers as the court appealed from has to determine an application or appeal, as the case may be.

(8)

In this section, a section 162 order means an order made under section 162.

Compare: 1908 No 89 s 88B

Reserved judgments and publication of final judgments

166 Reserved judgments

(1)

The Chief High Court Judge must, in consultation with the Chief Justice,—

(a)

publish information about the process by which parties to proceedings before the High Court may obtain information about the status of any reserved judgment in those proceedings; and

(b)

periodically publish information about the number of judgments of the court that he or she considers is are outstanding beyond a reasonable time for delivery; and

(c)

publish any other information about reserved judgments that he or she considers is useful.

(2)

The President of the Court of Appeal must, in consultation with the Chief Justice,—

(a)

publish information about the process by which parties to proceedings before the Court of Appeal may obtain information about the status of any reserved judgment in those proceedings; and

(b)

periodically publish information about the number of judgments of the court that he or she considers is outstanding beyond a reasonable time for delivery; and

(c)

publish any other information about reserved judgments that he or she considers is useful.

(3)

The Chief Justice must—

(a)

publish information about the process by which parties to proceedings before the Supreme Court may obtain information about the status of any reserved judgment in those proceedings; and

(b)

periodically publish information about the number of judgments of the court that he or she considers is are outstanding beyond a reasonable time for delivery; and

(c)

publish any other information about reserved judgments that he or she considers is useful.

167 Final written judgments to be published on Internet

(1)

Every final written judgment of a senior court must be published on the Internet as soon as practicable unless there is good reason not to publish the complete judgment.

(2)

A final written judgment may be published on the Internet in part if there are good reasons for not publishing the other parts of the judgment.

(3)

Good reason not to publish a judgment or part of it includes the following:

(a)

non-publication is necessary because of a suppression order or statutory requirement that affects publication or continued publication:

(b)

the judgment falls into a category of judgments that are of limited public value:

(c)

taking into account the presumption in subsection (1) in favour of publication, a Judge nevertheless determines that the judgment or any part of it should not be published because publication or the effect of publication would be contrary to the interests of justice.

(4)

In this section, final written judgment means a written decision that determines or substantially determines the outcome of any proceedings and that is either

(a)

a written reserved judgment; or

(b)

an oral judgment transcribed by an official transcription service.

Recusal

168 Recusal guidelines

(1)

The Chief High Court Judge and the President of the Court of Appeal must, in consultation with the Chief Justice, develop and publish guidelines for their respective courts to assist Judges to decide if they should recuse themselves from a proceeding.

(2)

The Chief Justice must develop and publish guidelines to assist Supreme Court Judges to decide if they should recuse themselves from a proceeding.

Foreign creditors

170 Memorials of judgments obtained out of New Zealand may be registered

(1)

This section applies to any judgment, decree, rule, or order (the judgment) obtained in any court of any Commonwealth country (the overseas court) for the payment of money.

(2)

A person in whose favour the judgment was obtained may file in the High Court a memorial containing the specified particulars that is authenticated by the seal of that court. Once filed, the memorial becomes a record of the judgment and execution may issue upon it in accordance with this section.

(3)

The memorial must be signed by a party in whose favour the judgment was obtained or by the party’s lawyer, and must contain—

(a)

the names and additions of the parties; and

(b)

the form or nature of the action or other proceeding; and

(c)

when commenced, the date of the signing or entering-up of the judgment, the passing of the decree, or the making of the rule or order; and

(d)

the amount recovered, or the decree pronounced, or rule or order made; and

(e)

if there was a trial, the date of the trial and amount of verdict given.

(4)

A seal purporting to be the seal of an overseas court is deemed and taken to be the seal of the court until the contrary is proved, and the onus of proving that the seal is not the seal of the court lies on the party denying or objecting to the seal.

(5)

A party in whose favour the judgment was obtained, or the party’s lawyer, may apply to the High Court or any Judge of the court for the making of a rule or the issue of a summons calling on the person against whom the judgment was obtained to show cause, within the time after personal or other service of the rule or summons as the court or Judge directs, why execution should not issue upon the judgment.

(6)

The rule or summons must give notice that, in default of appearance, execution may issue accordingly, and if the person served with the rule or summons does not appear, or does not show sufficient cause against such rule or summons, the court or Judge, on due proof of service under subsection (5), may make the rule absolute or make an order for issuing execution, subject to any terms and conditions (if any) that the court or Judge thinks fit.

(7)

The judgment may be enforced in the same manner as a judgment of the High Court.

(8)

This section is subject to section 13 of the Reciprocal Enforcement of Judgments Act 1934.

Compare: 1908 No 89 s 56

Access to information

171 Access to court records information, judicial information, or ministry Ministry of Justice information

(1)

Any person may have access to court records information of a senior court to the extent provided by, and in accordance with, rules of court.

(2)

Access to judicial information is not subject to any enactment that applies to the provision of, or access to, any other information.

(3)

Any person may have access to any ministry Ministry of Justice information to the extent provided by, and in accordance with, the Official Information Act 1982, the Privacy Act 1993, the Public Records Act 2005, or any other enactment providing for or regulating access to the information.

(4)

In this section, court records information, judicial information, and ministry Ministry of Justice information respectively mean the documents and information described as such in Schedule 2.

171A Sharing of permitted information with other departments

(1)

This section applies to permitted information specified in Part B of the items about the court record relating to court information in Schedule 2, regardless of whether it the information is controlled by the judiciary.

(2)

In response to a request from an agency for information to which this section applies, the Ministry of Justice may, by way of an approved information sharing agreement under the Privacy Act 1993, share any permitted information with the agency.

(3)

The Ministry of Justice holds permitted information solely for the purpose of entering into approved information sharing agreements under the Privacy Act 1993, and that information is not otherwise subject to the Privacy Act 1993 and is not subject to the Official Information Act 1982 or the Public Records Act 2005.

(4)

Nothing in this section or an approved information sharing agreement under the Privacy Act 1993 requires the Ministry of Justice to disclose any matter suppressed by or under a court order or any enactment.

(5)

The Governor-General may, by Order in Council made on the recommendation of the Minister of Justice, amend or replace Part B of the items about the court record relating to court information in Schedule 2.

(6)

The Minister of Justice may make a recommendation under subsection (5) only after consultation with the Attorney-General and with the consent of the Chief Justice.

171B Requirements that Registrars disclose information

(1)

If any enactment requires a Registrar to notify a registration authority of certain information about any court proceedings, that requirement is not affected by any suppression order imposed by the court or by operation of law.

(2)

Even if the enactment provides that the court may order otherwise in any case, the requirement is not affected by any suppression order imposed by the court unless the court specifically orders otherwise in that case.

Payment of fees collected

172 Fees to be paid into Crown Bank Account

All fees taken or received under this Part must be paid into a Crown Bank Account.

Compare: 1908 No 89 ss 42, 53

Provisions and rules of general application

173 Judicial officers to continue in office to complete proceedings

(1)

This section applies to proceedings in a senior court, another court, or a tribunal.

(2)

A judicial officer whose term of office has expired or who has retired may continue in office for the purpose of completing the hearing of a matter, or determining or giving judgment in proceedings, that the judicial officer has heard either alone or with others.

(3)

A judicial officer must not continue in office under subsection (1) for longer than 3 months without the consent of the nominating Minister.

(4)

The fact that a judicial officer continues in office does not affect the power to appoint another person to that office.

(5)

A judicial officer who continues in office is entitled to be paid the appropriate rate for the days or half-days worked in completing the proceedings, and that rate is the rate of the remuneration and allowances to which the officer would have been entitled for those days or half-days if the term of office had not expired or the officer had not retired.

(6)

In this section, judicial officer means a person who has in New Zealand authority under an enactment to hear, receive, and examine evidence.

Compare: 1908 No 89 s 88A

174 Costs where intervener or counsel assisting court appears

(1)

This section applies to proceedings in any senior court or other court.

(2)

If the Attorney-General or the Solicitor-General or any other person appears as an intervener or counsel to assist the court in any civil proceedings or in any proceedings on any appeal and argues any question of law or of fact arising in the proceedings, the court may, subject to the provisions of any other Act, make any order it thinks just—

(a)

as to the payment by any party to the proceedings of the costs incurred by the Attorney-General or the Solicitor-General in so doing; or

(b)

as to the payment by any party to the proceedings or out of public funds of the costs incurred by any other person in so doing; or

(c)

as to the payment by the Attorney-General or the Solicitor-General or that other person of any costs incurred by any of those parties by reason of his or her so doing.

(3)

If the court makes an order under subsection (2)(b), the Registrar of the court must forward a copy of the order to the chief executive of the Ministry of Justice who must make the payment out of money appropriated by Parliament for the purpose.

Compare: 1908 No 89 s 99A

175 Judgment against one of several persons jointly liable not a bar to action against others

(1)

This section applies to proceedings in any senior court or other court.

(2)

A judgment against 1 or more of several persons jointly liable does not operate as a bar or defence to civil proceedings against any of the persons against whom judgment has not been recovered, except to the extent to which the judgment has been satisfied.

(3)

This section does not apply to any action or other proceeding to which Part 5 of the Law Reform Act 1936 applies.

Compare: 1908 No 89 s 94

176 Rules of equity prevail over rules of common law

(1)

This section applies to proceedings in a senior court, another court, or a tribunal where equitable jurisdiction may be exercised.

(2)

If there is any conflict or variance between the rules of equity and the rules of the common law in relation to the same matter, the rules of equity prevail.

Compare: 1908 No 89 s 99

Discharge of jurors

178 Discharge of juror or jury

Nothing in this Act affects the powers of a court or Judge to discharge a juror or jury for a civil case under section 22 of the Juries Act 1981.

Compare: 1908 No 89 s 54B

Repeals, revocations, consequential amendments, and savings and transitional provisions

179 Repeals

(1AA)

Sections 51A to 51F and 99D of the Judicature Act 1908 are repealed.

(1)

The rest of the Judicature Act 1908 (1908 No 89), except section 87 of that Act, is repealed.

(2)

The Supreme Court Act 2003 (2003 No 53) is repealed.

(3)

Section 87 of the Judicature Act 1908 is repealed.

180 Consequential amendments

The enactments specified in Schedule 3 each of the following Schedules are consequentially amended in the manner indicated in that schedule.:

(a)

Schedule 1A:

(b)

Schedule 3:

(c)

Schedule 3A.

181 Regulations continued

(1)

The following regulations continue in force and are deemed to have been made under section 153:

(a)

the Court of Appeal Fees Regulations 2001:

(b)

the High Court Fees Regulations 2013:

(c)

the Supreme Court Fees Regulations 2003:

(d)

the Witnesses and Interpreters Fees Regulations 1974.

(2)

The regulations continued in force by this section may be amended, revoked, or replaced under section 153.

182 Rules continued

(1)

The following rules continue in force and are deemed to have been made under section 145:

(a)

the Court of Appeal (Access to Court Documents) Rules 2009:

(b)

the Court of Appeal (Civil) Rules 2005:

(c)

the Court of Appeal (Criminal) Rules 2001:

(d)

the Court of Appeal (List Election Petitions) Rules 1998:

(e)

the Evidence (Trans-Tasman Service of, and Compliance with, New Zealand Subpoenas and Australian Subpoenas Issued in Criminal Proceedings) Rules 2013:

(f)

the Supreme Court Rules 2004:

(g)

the Trans-Tasman Proceedings Regulations and Rules 2013.

(2)

The rules continued in force by this section may be amended, revoked, or replaced under section 145.

(3)

The repeal of sections 51A to 51D of the Judicature Act 1908 by section 179(1AA) does not affect—

(a)

the Constituency Election Petition Rules 2008:

(b)

the Court Martial Appeal Court Rules 2008:

(c)

the Criminal Procedure Rules 2012:

(d)

the Criminal Proceedings (Enforcement of Fines) Rules 2011:

(e)

the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008.

183 Transitional provisions

The transitional provisions set out in Schedule 4 apply.

Part 2 District Court

Preliminary provisions

184 Purposes

The purposes of this Part are—

(a)

to reconstitute District Courts as a single court with divisions for a Family Court, a Youth Court, and a Disputes Tribunal; and

(b)

to provide for—

(i)

the constitution and jurisdiction of the court; and

(ii)

the practice and procedure of the court; and

(iii)

the selection, appointment, removal, and conditions of the judicial and other officers of the court; and

(c)

to make provision for any other related matters; and

(d)

to improve the transparency of court arrangements in a manner consistent with judicial independence.

185 Interpretation

In this Part, unless the context otherwise requires,—

acting Judge means a Judge appointed as an acting Judge under section 214(1)

authenticate means,—

(a)

in relation to a document other than a document under subpart 10,—

(i)

signing sign and dating date the document; or

(ii)

in the case of a document in electronic form, using use any electronic means that adequately identifies the person responsible for its content and the date of authentication; or

(b)

in relation to a document under subpart 10, using use any means that adequately identifies the person responsible for its content and the date of authentication; or

(c)

in relation to a warrant, authenticate in the manner provided in paragraph (a) or (b) or by a Registrar entering the particulars of the warrant into a computer system accessible to a constable or a bailiff

bailiff means a bailiff appointed under section 248, and includes any deputy bailiff and any person acting as a bailiff under section 248(2)

Chief District Court Judge means the Chief District Court Judge appointed under section 207(1)

chief executive means the chief executive of the Ministry of Justice

Community Magistrate means a person appointed under section 221(1)

constable has the same meaning as in section 4 of the Policing Act 2008

court means the District Court constituted established under section 188

District Court Judge or Judge or Judge means a Judge appointed under section 192(1)

document

(a)

means a document in any form (including, without limitation, a document in an electronic form); and

(b)

includes, without limitation, any of the following:

(i)

any writing on any material:

(ii)

information recorded or stored by means of a tape recorder, computer, or other device:

(iii)

material subsequently derived from information recorded or stored in the manner described in subparagraph (ii):

(iv)

a label, a marking, or any other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:

(v)

a book, map, plan, graph, or drawing:

(vi)

a photograph, film, negative, tape, or any other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced

electronic includes electrical, digital, magnetic, optical, electromagnetic, biometric, and photonic

financial assessment hearing means a hearing under section 330 or 331

financial statement has the meaning given to it in section 327(1)

freezing order means an order restraining a person from removing any assets located in or outside New Zealand or from disposing of, dealing with, or diminishing the value of those assets

judicial officer means a Judge, a Community Magistrate, or a Justice

Justice has the same meaning as in section 2 of the Justices of the Peace Act 1957

landlord, in relation to any land, means the person entitled to the immediate reversion of that land or and, if the land is held in joint tenancy or tenancy in common, includes any one of the persons entitled to the immediate reversion

lawyer has the same meaning as in section 6 of the Lawyers and Conveyancers Act 2006

Minister means the Minister of the Crown who under any warrant or with the authority of the Prime Minister is responsible for the administration of this Part

officer of the court means any Registrar, Deputy Registrar, or other employee appointed under the State Sector Act 1988 for the conduct of the business of the court

part-time Judge means a Judge who is authorised under section 213(1) to act sit on a part-time basis

permanent Judge does not include an acting District Court Judge

Police employee has the meaning given by section 4 of the Policing Act 2008

prescribed means prescribed by regulations made under section 413

prescribed rate, in relation to a rate of interest, means the interest rate as defined in Part 4 of the Judicature Modernisation Act 2013 has the meaning given to it by section 87 of the Judicature Act 1908

principal Judge means a Judge who is appointed the principal Judge of a division of the court

proceeding means any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application

Registrar means a District Court Registrar appointed under section 244

rules means the rules of the practice and procedure of the court made under section 411

search order means an order in a proceeding, or before a proceeding commences, with or without notice to the respondent, to secure or preserve evidence and to require the respondent to permit persons to enter premises for the purpose of securing the preservation of evidence

working day, in relation to the court, means a day other than—

(a)

a Saturday, a Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, or Waitangi Day; or

(b)

the day observed as the anniversary day of the former province in which the relevant office of the court is located; or

(ba)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; or

(c)

a day in the period commencing on 25 December in a year and ending on 15 January in the following year.

Compare: 1947 No 16 s 2

186 Part binds the Crown

This Part binds the Crown.

187 Application of this Part

Schedule 7 contains application, savings, and transitional provisions that affect other provisions of this Part as from time to time amended, repealed, or repealed and replaced.

Subpart 1—Establishment of District Court

188 District Court

(1)

This Part establishes a the District Court of New Zealand (the court).

(2)

The court consists of—

(a)

the Chief District Court Judge; and

(aa)

the Principal Family Court Judge and the Principal Youth Court Judge; and

(b)

the other District Court Judges.

(3)

The court has civil and criminal jurisdiction and is a court of record.

(4)

The court is a single court that replaces the District Courts that were continued by the District Courts Act 1947.

(5)

On and after the coming into force of this Part,—

(a)

a District Court in existence immediately before the coming into force of this Part is part of the court:

(b)

any act or thing that was done in relation to a proceeding commenced in a District Court before the coming into force of this Part is to be treated as having been done in the court sitting in the same place as that District Court:

(c)

any act or thing that could have been done in relation to a proceeding commenced in a District Court before the coming into force of this Part must be done in relation to the proceeding in the court sitting in the same place as that District Court.

(6)

In subsection (5), District Court includes a Family Court or a Youth Court that was a division of the particular District Court.

Compare: 1947 No 16 s 3(1)

189 Seal

The court must have a seal, and each Registrar of the court is responsible for the seal.

Compare: 1947 No 16 s 3(2)

Divisions of court

190 Divisions of court

The court has the following divisions:

(a)

a general division, to exercise the ordinary civil and criminal jurisdiction of the court, including common law and equitable jurisdiction and admiralty jurisdiction:

(b)

a division known as the Family Court, to exercise the jurisdiction conferred under by section 11 of the Family Courts Act 1980:

(c)

a division known as the Youth Court, to exercise the jurisdiction conferred under by section 272 of the Children, Young Persons, and Their Families Act 1989:

(d)

a division known as the Disputes Tribunal, to exercise the jurisdiction conferred under by section 10 of the Disputes Tribunal Act 1988 and a provision of any other enactment.

Compare: 1947 No 16 s 9(4)

Court offices

191 Court offices

(1)

The Governor-General may, by notice in the Gazette,—

(a)

declare that an office of the court is established at or for a place; and

(b)

specify the date on and after which the office of the court is established.

(2)

An office of the court may be housed in more than 1 building and, if it is established for a place, need not be physically established at that place or at all.

(3)

The Governor-General may, by notice in the Gazette, abolish an office of the court.

(4)

The following provisions apply on the abolition of an office of the court (the abolished office):

(a)

the Minister may direct that the documents and records in the abolished office must be transferred to another office of the court (the substituted office):

(b)

when delivered to the Registrar of the substituted office, the documents and records become subject to the custody of that Registrar:

(c)

the Registrar of the substituted office may do anything that could under an enactment or a rule have been done by the Registrar of the abolished office:

(d)

a step in a proceeding that could, under an enactment or a rule, have been taken in the abolished office may be taken in the substituted office:

(e)

an act or a thing required or authorised by an enactment or a rule to be done by a person at the abolished office in relation to a proceeding or transaction or document may be done by a person at the substituted office:

(f)

an address for service given by a party in relation to a proceeding in the abolished office continues to be the address for service of the party, but, if the address does not comply with any enactment or rule, the party must give a new address for service on first filing a document in the proceeding in the substituted office:

(g)

a Judge may—

(i)

decide a question as to the application of this section or the procedure to be followed; and

(ii)

make an order that the Judge thinks fit.

(5)

The Governor-General may from time to time appoint cities, towns, or other places in which courts may be held for the exercise of jurisdiction to conduct jury trials in accordance with the Criminal Procedure Act 2011.

(6)

The Governor-General may at any time in like manner amend or revoke any appointment made under subsection (5).

(7)

The appointment under section 4(2A) of the District Courts Act 1947 of a city, borough, or other place that is in force immediately before the commencement of this section continues in force as if it were an appointment made under subsection (5).

Subpart 2—Judges

Appointment of Judges

192 Appointment of Judge

(1)

The Governor-General may, on the advice of the Attorney-General, appoint a Judge.

(2)

The Governor-General appoints a Judge by a signed warrant of appointment.

(3)

The Attorney-General must publish information explaining his or her process for—

(a)

seeking expressions of interest for the appointment of Judges; and

(b)

nominating persons for appointment as a Judge.

193 Maximum number of Judges

(1)

The maximum number of Judges is 156.

(2)

For the purposes of subsection (1),—

(a)

a Judge who is acting on a full-time basis counts as 1:

(b)

a Judge who is acting on a part-time basis counts as an appropriate fraction of 1:

(c)

the aggregate number (for example, 155.5) must not exceed the maximum number of Judges that is for the time being permitted.

Compare: 1947 No 16 s 5(2), (2A)

194 Appointment of Judge to sit in other jurisdiction or division of court

(1)

A Judge may be appointed to sit in another jurisdiction or division of the court by—

(a)

warrant of the Governor-General; or

(b)

designation by the Chief District Court Judge; or

(c)

other prescribed means.

(2)

An appointment under subsection (1)(a) or (b) is subject to the procedure prescribed (if any) in any enactment for the issue of the warrant or the making of the designation.

195 Appointment of jury trial Judges

(1)

The Governor-General must by warrant appoint sufficient Judges to exercise the criminal jurisdiction of the court in relation to jury trials under the Criminal Procedure Act 2011.

(2)

The fact that a Judge is appointed under this section does not limit or affect the power of that Judge to exercise any other jurisdiction of the court or the powers of a Judge.

Compare: 1947 No 16 s 5B

197 Who is eligible for appointment as Judge

A person may be appointed as a Judge if—

(a)

that person has for at least 7 years held a New Zealand practising certificate as a barrister or as a barrister and solicitor; or

(b)

that person—

(i)

holds a degree in law granted or issued by any university within New Zealand; and

(ii)

has been admitted as a barrister and solicitor of the High Court; and

(iii)

has held a practising certificate in a jurisdiction specified by Order in Council—

(A)

for at least 7 years; or

(B)

for a lesser number of years, but, when that number of years is added to the number of years that the person has held a New Zealand practising certificate, the total number of years is at least 7 years.

Compare: 1947 No 16 s 5

198 Tenure of Judges

(1)

A Judge is appointed as a permanent Judge and holds office until he or she resigns, retires, or is removed.

(2)

The terms and conditions of the appointment of a Judge may be changed only with the consent of the Judge.

Compare: 1947 No 16 s 5AA(7)

200 Restrictions on Judges

(1)

A Judge must not practise as a lawyer.

(2)

A Judge must not undertake any other paid employment or hold any other office (whether paid or not) without the approval of the Chief District Court Judge.

(3)

However, subsection (1) does not apply to another office if an enactment permits or requires the office to be held by a Judge.

(4)

The Chief District Court Judge may approve other employment or any other office only if he or she is satisfied that the other employment or office is consistent with judicial office.

Compare: 1947 No 16 s 5(4), (5)

201 Protocol relating to activities of Judges

(1)

The Chief Justice must develop and publish a protocol containing guidance on—

(a)

the employment, or types of employment, that he or she considers may be undertaken consistent with being a Judge; and

(b)

the offices, or types of offices, that he or she considers may be held consistent with being a Judge.

(2)

The protocol required by subsection (1) must be prepared in consultation with the Chief District Court Judge.

Powers of Judges

202 Powers of Judges

(1)

A Judge has the power—

(a)

to exercise the civil and criminal jurisdiction of the court in accordance with his or her warrant of appointment; and

(b)

if applicable, to exercise the jurisdiction conferred by a warrant to sit in the Family Court or to conduct jury trials, or conferred by a designation to sit in the Youth Court.

(2)

A Judge exercises the jurisdiction of the court by—

(a)

hearing and determining proceedings in the court; and

(b)

exercising the powers conferred by this Part or any other enactment on the court or Judges of the court.

(3)

Nothing in subsection (1) limits section 436 of the Children, Young Persons, and Their Families Act 1989.

Compare: 1947 No 16 s 58

203 Exercise of jurisdiction

The jurisdiction of the court may be exercised by—

(a)

a Judge; or

(b)

if authorised by this Part or any other Act or by the rules, a Registrar or any person authorised to carry out the functions of a Registrar.

Compare: 1947 No 16 s 40

204 Additional powers of Judges

(1)

A Judge has the same powers and may make the same orders in relation to a proceeding pending before the court as a Judge of the High Court in chambers in a similar proceeding.

(2)

Despite subsection (1), an interim injunction restraining a party to a proceeding (whether domiciled, resident, or present in New Zealand) from removing from New Zealand, or otherwise dealing with, assets in New Zealand is the only interlocutory injunction in the nature of a freezing order that a Judge may grant.

(3)

A Judge has no power to make a search order.

(4)

Subsection (3) does not limit the power of a Judge to make an order for the detention, custody, or preservation of property.

Compare: 1947 No 16 s 42

205 Other functions of Judges

A Judge, by virtue of his or her appointment as a Judge,—

(a)

is also a coroner for New Zealand; and

(b)

is also a Justice of the Peace for New Zealand; and

(c)

although sitting alone, has the powers, functions, and discretions that must be exercised by 2 Justices sitting together; and

(d)

has the power to do alone whatever is authorised by any enactment to be done by 2 Justices together.

Compare: 1947 No 16 s 8

206 Immunity of Judges

A Judge has the same immunities as a High Court Judge.

Compare: 1947 No 16 s 119

Chief District Court Judge

207 Chief District Court Judge

(1)

There must be a Chief District Court Judge appointed by the Governor-General on the advice of the Attorney-General.

(2)

The Chief District Court Judge is head of the court.

(3)

The Chief District Court Judge must ensure the orderly and efficient conduct of the court’s business, and, for that purpose, may, among other things,—

(a)

determine the sessions of the court; and

(b)

assign Judges to those sessions; and

(c)

assign Judges to particular divisions or jurisdictions; and

(ca)

assign Judges to the hearing of cases and other duties; and

(d)

determine the places and schedules of sessions for individual Judges (including varying the places and schedules of sessions for Judges from time to time); and

(e)

manage the workload of individual Judges; and

(f)

delegate administrative duties to individual Judges; and

(g)

oversee and promote the professional development, continuing education, and training of Judges; and

(h)

make directions and set standards for best practice and procedure in the court.

(4)

The Chief District Court Judge, in assigning a Judge to the Family Court or the Youth Court, may give directions in relation to the Family Court or the Youth Court, as the case may be, but must first consult the Principal Judge of the court in question.

(5)

The fact that a Judge sits in any particular court is conclusive evidence of his or her authority so to do, and no exercise of any jurisdiction or power by a Judge may be questioned on the ground that he or she was not authorised to sit in the court where the jurisdiction or power was so exercised.

(6)

The reference in subsections (3), (4), and (5) to jurisdictions means—

(a)

the ordinary civil and criminal jurisdiction of the District Court, including common law and equitable jurisdiction and admiralty jurisdiction:

(b)

the specialist jurisdiction of the District Court by virtue of the constitution of the Family Court and the Youth Court as divisions of the District Court.

(7)

The power conferred by this section on the Chief District Court Judge does not include the power to give directions in relation to any District Court Judge who for the time being presides over, or holds office as a member of, or holds office as, a tribunal.

Compare: 1947 No 16 ss 5A, 9

208 Tenure of Chief District Court Judge

The Chief District Court Judge holds office until he or she—

(a)

resigns from that office; or

(b)

ceases to hold office as a Judge.

Compare: 1947 No 16 s 5A(2)

209 Acting Chief District Court Judge

(1)

The Chief District Court Judge may, with the concurrence of the Chief Justice, nominate a Judge to act in place of the Chief District Court Judge for any period during which—

(a)

the office of the Chief District Court Judge is vacant; or

(b)

the Chief District Court Judge is absent from New Zealand; or

(c)

the Chief District Court Judge is unable for any reason (including illness) to perform the duties of the office.

(2)

The Chief Justice may nominate a Judge to act in place of the Chief District Court Judge for any period during which the Chief District Court Judge is unable for any reason (including illness) to perform the duties of the office.

(3)

For the period of his or her appointment, the Acting Chief District Court Judge is empowered to perform the functions and duties, and to exercise all the powers, of the office of Chief District Court Judge.

Compare: 1947 No 16 s 5A(4)

Resignation, retirement, and removal

210 Resignation

A Judge may resign from office at any time by written notice to the Attorney-General.

211 Retirement

(1)

A Judge must retire from office on reaching the age of 70 years.

(2)

This section does not apply to an acting Judge.

212 Removal

(1)

The Governor-General may, on the advice of the Attorney-General, remove a Judge from office on the grounds of inability or misbehaviour.

(2)

To avoid doubt, a Judge may be removed under subsection (1) for inability or misbehaviour related to the exercise, contemplated by section 205(a), of the judicial authority conferred on a coroner by the Coroners Act 2006.

(3)

The removal of a Judge may be initiated in accordance with sections 33 and 34 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

(4)

A Judge may not be removed from office except under this section.

Compare: 1947 No 16 s 7(1), (1A)

Part-time Judges

213 Attorney-General may authorise permanent Judge to sit part-time

(1)

The Attorney-General may, on application by a permanent Judge, authorise the Judge to sit on a part-time basis for a specified period.

(2)

The Attorney-General must not authorise a Judge to sit part-time unless the Chief District Court Judge agrees and, in considering whether to agree, the Chief District Court Judge must have regard to the need to ensure the orderly and efficient conduct of the court’s business.

(3)

In the case of an Environment Judge, the Chief District Court Judge must first consult the Principal Environment Judge before agreeing to the Judge sitting part-time.

(4)

The Attorney-General may authorise a Judge to sit part-time with effect from—

(a)

the date on which the Judge takes up office; or

(b)

any other date.

(5)

The Attorney-General may authorise a Judge to sit part-time for a specified period on more than 1 occasion.

Acting Judges

214 Appointment of acting Judges

(1)

The Governor-General may, on the advice of the Attorney-General, appoint 1 or more acting Judges.

(2)

Only a former Judge under the age of 75 years is eligible for appointment as an acting Judge.

(3)

Before advising the Governor-General to make an appointment under subsection (1), the Attorney-General must have received a certificate signed by the Chief District Court Judge certifying that the appointment is necessary for the proper conduct of the court.

(4)

Despite section 435 of the Children, Young Persons, and Their Families Act 1989, any person appointed under subsection (1) may at the same time or at any subsequent time during the term of that person’s appointment be designated as a Youth Court Judge, and the designation takes effect during any period when and in any place where that person is entitled to act as a Judge.

(5)

In this section, former Judge means a person who has retired or resigned from holding office as a District Court Judge.

215 Term of appointment of acting Judge

(1)

An acting Judge may be appointed for a term of not more than 2 years and may be reappointed for 1 or more terms.

(2)

However, an acting Judge must not be appointed—

(a)

for a term that extends beyond the date on which the Judge reaches the age of 75 years; or

(b)

for multiple terms collectively totalling more than 5 years.

216 Acting Judge must be authorised to act

(1)

An acting Judge may only act act only to the extent that he or she is authorised to do so by the Chief District Court Judge under subsection (2).

(2)

The Chief District Court Judge may authorise an acting Judge to act—

(a)

during 1 or more specified periods; and

(b)

in 1 or more specified places.

(3)

An acting Judge, while acting as authorised by the Chief District Court Judge, has the jurisdiction, powers, protections, privileges, and immunities of a Judge.

Compare: 1947 No 16 s 10A(43), (54)

Remuneration

217 Remuneration of Chief District Court Judge, principal Judges, and permanent Judges

The Chief District Court Judge, each principal Judge, and each permanent Judge must be paid, out of public money, without further appropriation than this section,—

(a)

a salary at the rate determined by the Remuneration Authority; and

(b)

allowances (if any) as determined by the Remuneration Authority; and

(c)

any additional allowances, such as travelling allowances or other incidental or minor allowances, as the Government determines.

Compare: 1947 No 16 s 6(1)

218 Remuneration of part-time or acting Judge

(1)

The salary and allowances of a part-time Judge must be calculated and paid as a pro rata proportion of the salary and allowances of a full-time Judge.

(2)

For the period that an acting Judge acts as authorised under section 216, the acting Judge must be paid a salary and allowances calculated as a pro rata proportion of the salary and allowances of a full-time Judge under section 217(a) and (c).

Compare: 1947 No 16 s 6(2A)

218A Superannuation of acting Judges

(1)

A superannuation subsidy must not be paid to a person who is appointed as an acting Judge under section 214.

(2)

Subsection (1) does not apply to a compulsory employer contribution within the meaning of section 101A of the KiwiSaver Act 2006.

219 Reduction in remuneration of Chief District Court Judge or principal Judge

(1)

This section applies if the Chief District Court Judge or a principal Judge ceases to hold the position of Chief District Court Judge or principal Judge but continues to hold office as a Judge.

(2)

The salary and allowances of the Judge must be reduced by the amount of any salary and allowances that the Judge received solely by virtue of being the Chief District Court Judge or a principal Judge.

Compare: 1947 No 16 s 6(2B)

220 Judge’s remuneration must not be reduced

(1)

The remuneration payable to a Judge must not be reduced while the Judge holds office.

(2)

For the purposes of subsection (1), none of the following is a diminution of remuneration:

(a)

the payment of salary on a pro rata basis under section 218:

(b)

the payment of reduced salary and allowances under section 219.

Compare: 1947 No 16 s 6(2), (2C)

Subpart 3—Community Magistrates

Community Magistrates

221 Appointment of Community Magistrate

(1)

The Governor-General may, on the advice of the Minister, appoint a Community Magistrate.

(2)

Before advising the Governor-General, the Minister may consult with any persons that the Minister considers appropriate.

Compare: 1947 No 16 s 11A(1), (3)

222 Who is eligible for appointment as Community Magistrate

A person may be appointed as a Community Magistrate if he or she—

(a)

is capable, through because of his or her personal qualities, experience, and skills, of performing the functions of a Community Magistrate; and

(b)

has been designated under the prescribed selection process as a person eligible for appointment as a Community Magistrate.

Compare: 1947 No 16 s 11A(2)

223 Functions and powers of Community Magistrate

(1)

A Community Magistrate must carry out the functions of, and may exercise the powers conferred on, Community Magistrates by the Criminal Procedure Act 2011, the Summary Offences Act 1981, or any other enactment.

(2)

Each Community Magistrate must sit in the court and at the times that the Chief District Court Judge directs after consulting—

(a)

the Chief Community Magistrate; or

(b)

if there is no Chief Community Magistrate, any other Community Magistrate as the Chief District Court Judge thinks fit.

(3)

The fact that a Community Magistrate sits in the court is conclusive evidence of his or her authority to do so.

Compare: 1947 No 16 s 11C

224 Tenure of Community Magistrate

A Community Magistrate holds office until he or she resigns, retires, or is removed.

225 Retirement, resignation, and removal

(1)

A Community Magistrate must retire from office on reaching the age of 70 years.

(2)

A Community Magistrate may resign from office at any time by written notice to the Minister.

(3)

The Governor-General may, on the advice of the Minister, remove a Community Magistrate from office if any of the following grounds for removal is proved to the satisfaction of the Governor-General:

(a)

neglect of duty:

(b)

inability:

(c)

disability affecting performance of duty:

(d)

bankruptcy:

(e)

misconduct.

Compare: 1947 No 16 s 11F

226 Remuneration of Community Magistrate must not be reduced

The remuneration payable to a Community Magistrate must not be reduced while the Community Magistrate holds office.

Compare: 1947 No 16 s 11G(3)

227 Restrictions on Community Magistrates

A Community Magistrate must not—

(a)

hold any office or engage in any employment or occupation that will, in the opinion of the Governor-General, impair the proper discharge of his or her functions as a Community Magistrate; or

(b)

be a lawyer; or

(c)

be a Police employee; or

(d)

be employed by the Ministry of Justice or the Department of Corrections; or

(e)

be an officer of the High Court or of the District Court; or

(f)

be a party to a prison management contract entered into under section 198(1) of the Corrections Act 2004 or to a security contract entered into under section 166 of the Corrections Act 2004; or

(g)

be a security officer as defined in section 3(1) of the Corrections Act 2004; or

(h)

be a social worker as defined in section 2(1) of the Children, Young Persons, and Their Families Act 1989.

Compare: 1947 No 16 s 11B

Immunity for Community Magistrates

228 No proceeding against Community Magistrate unless he or she acted without jurisdiction

(1)

No proceeding may be commenced against any Community Magistrate for any act done by him or her, unless he or she has exceeded his or her jurisdiction or has acted without jurisdiction.

(2)

If a warrant to seize property or a warrant of commitment is granted by a Community Magistrate in good faith in reliance on a conviction or an order entered or made by a Justice or Community Magistrate, no proceeding may be commenced against the Community Magistrate who granted the warrant by reason of any defect in the conviction or order, or by reason of any want of jurisdiction in the Justice or Community Magistrate who entered or made it.

Compare: 1947 No 16 s 11CA

229 No proceeding against Community Magistrate to be commenced in District Court

No proceeding against any Community Magistrate by any person claiming to have been injured by an act done by the Community Magistrate in excess of jurisdiction or without jurisdiction may be commenced in the District Court.

Compare: 1947 No 16 s 11CB

230 Onus of proof

In any proceeding commenced against a Community Magistrate by a person claiming to have been injured by an act done by the Community Magistrate in excess of jurisdiction or without jurisdiction, the onus of proving the excess or want of jurisdiction lies on the person alleging it.

Compare: 1947 No 16 s 11CC

231 Plaintiff may be ordered to give security for costs

(1)

This section applies to any proceeding commenced against a Community Magistrate by a person claiming to have been injured by an act done by the Community Magistrate in excess of jurisdiction or without jurisdiction.

(2)

The High Court or any Judge of that court, on application by the Community Magistrate at any time before the day fixed for the trial of the proceeding, may order the plaintiff to give security for the costs of the proceeding to the satisfaction of the Registrar of the High Court in an amount not exceeding $2,000.

(3)

If security is ordered to be given, the High Court or Judge may direct that in the meantime all proceedings are stayed.

Compare: 1947 No 16 s 11CD

232 Indemnity to Community Magistrate

(1)

Subsection (2) applies to any Community Magistrate against whom a judgment has been entered to pay damages or costs to any person injured as a result of any act done by the Community Magistrate in excess of jurisdiction or without jurisdiction.

(2)

The Community Magistrate must be indemnified by the Crown to the full amount of the judgment if he or she produces a certificate authenticated by a Judge of the High Court stating that, in the Judge’s opinion,—

(a)

the Community Magistrate acted in good faith under the belief that he or she had in fact jurisdiction; and

(b)

in all the circumstances the Community Magistrate ought fairly and reasonably to be excused.

(3)

Subsections (4) and (5) apply if a Community Magistrate settles a claim against him or her by paying or agreeing to pay an agreed amount of damages or costs before proceedings are commenced, or before or during the trial of the proceeding.

(4)

The Community Magistrate must be indemnified by the Crown to the full amount of the amount paid or agreed to be paid if he or she produces a certificate authenticated by a Judge of the High Court stating that, in the Judge’s opinion,—

(a)

the Community Magistrate acted in good faith under the belief that he or she had in fact jurisdiction; and

(b)

in all the circumstances the Community Magistrate ought fairly and reasonably to be excused; and

(c)

the amount paid or agreed to be paid was fair and reasonable.

(5)

If the High Court Judge is not satisfied of the matter in subsection (4)(c), the Judge may issue the certificate in respect of any lesser amount that in the Judge’s opinion is adequate to settle the plaintiff’s claim, and in that case the Community Magistrate must be indemnified by the Crown to the amount specified in the certificate.

(6)

Application for a certificate under any of subsections (2), (4), and (5) may be made by a Community Magistrate at any time to a Judge in chambers, and the Judge has power to grant the certificate after considering all evidence that is given before him or her either orally or in the form of affidavits.

(7)

A copy of the application must be served by the Community Magistrate on the Attorney-General, who is entitled to appear and oppose it.

Compare: 1947 No 16 s 11CE

Chief Community Magistrate

233 Chief Community Magistrate

There may be a Chief Community Magistrate.

234 Appointment of Chief Community Magistrate

(1)

The Governor-General may, on the advice of the Minister, appoint the Chief Community Magistrate.

(2)

Regulations made under this Part may prescribe the criteria and procedure for the appointment of the Chief Community Magistrate, but the absence of those regulations does not preclude an appointment.

Compare: 1947 No 16 s 11D(1), (3)

235 Who is eligible for appointment as Chief Community Magistrate

A person may be appointed as Chief Community Magistrate if he or she has held a practising certificate as a lawyer for at least 5 years.

Compare: 1947 No 16 s 11D(2)

236 Tenure of Chief Community Magistrate

(1)

The Chief Community Magistrate holds office for as long as he or she holds office as a Community Magistrate.

(2)

The Chief Community Magistrate may resign from that office without resigning from the office of Community Magistrate, but only with the approval of the Governor-General.

Compare: 1947 No 16 s 11D(4), (5)

237 Functions of Chief Community Magistrate

(1)

The functions of the Chief Community Magistrate include—

(a)

taking appropriate steps to ensure that the integrity of the office of Community Magistrate is maintained and that Community Magistrates operate effectively and efficiently within the framework of the District Court:

(b)

the other functions conferred on the Chief Community Magistrate by regulations made under this Part or by any other enactment.

(2)

Without limiting subsection (1), the Chief Community Magistrate—

(a)

may sit as a Community Magistrate and exercise the jurisdiction of a Community Magistrate:

(b)

must be consulted by the Chief District Court Judge, in accordance with section 223(2), with regard to the rostering of Community Magistrates:

(c)

may be involved in the design and implementation of training programmes for Community Magistrates in consultation with the Ministry of Justice and the Chief District Court Judge:

(d)

may, where appropriate, liaise with interested persons on matters affecting the office of Community Magistrate.

Compare: 1947 No 16 s 11E

238 Acting Chief Community Magistrate

(1)

The Governor-General may, on the advice of the Minister, appoint a Community Magistrate to act in place of the Chief Community Magistrate for any period during which—

(a)

the office of the Chief Community Magistrate is vacant; or

(b)

the Chief Community Magistrate is absent from New Zealand; or

(c)

the Chief Community Magistrate is unable for any reason (including illness) to perform the duties of the office.

(2)

For the period of his or her appointment, the Acting Chief Community Magistrate is empowered to perform the functions and duties, and to exercise all the powers, of the office of Chief Community Magistrate.

Compare: 1947 No 16 s 11D(6)

Acting Community Magistrates

239 Appointment of acting Community Magistrates

(1)

The Governor-General, on the advice of the Minister, may appoint an acting Community Magistrate.

(2)

Only a former Community Magistrate is eligible for appointment as an acting Community Magistrate.

(3)

In this section, former Community Magistrate means a person who has retired or resigned from holding office as a Community Magistrate.

Compare: 1947 No 16 s 11H(1)

240 Term of appointment of acting Community Magistrate

(1)

An acting Community Magistrate may be appointed for a term of not more than 2 years and may be reappointed for 1 or more further terms.

(2)

However, an acting Community Magistrate must not be appointed for a term that extends beyond the date on which the acting Community Magistrate reaches the age of 73 years.

Compare: 1947 No 16 s 11H(2)

241 Acting Community Magistrate must be authorised to act

(1)

An acting Community Magistrate may only act act only to the extent that he or she is authorised to do so by the Chief District Court Judge.

(2)

Before authorising an acting Community Magistrate, the Chief District Court Judge must consult with the Chief Community Magistrate or, if there is no Chief Community Magistrate, any other Community Magistrate that the Chief District Court Judge thinks appropriate.

(3)

The Chief District Court Judge may authorise an acting Community Magistrate to act—

(a)

during 1 or more specified periods; and

(b)

in 1 or more specified places.

(4)

An acting Community Magistrate, while acting as authorised by the Chief District Court Judge, has the jurisdiction, powers, protections, privileges, and immunities of a Community Magistrate.

Compare: 1947 No 16 s 11H(3), (5)

Remuneration

242 Remuneration of Chief Community Magistrate and Community Magistrates

(1)

The Chief Community Magistrate must be paid, out of public money, without further appropriation than this section,—

(a)

a salary or a fee, or an allowance, at the rate determined by the Remuneration Authority; and

(b)

any additional allowances, such as travelling allowances or other incidental or minor allowances, as determined by the Governor-General by Order in Council.

(2)

Each Community Magistrate must be paid, out of public money, without further appropriation than this section,—

(a)

a salary, or a fee, or an allowance at the rate determined by the Governor-General by Order in Council; and

(b)

any additional allowances, such as travelling allowances or other incidental or minor allowances, as determined by the Governor-General by Order in Council.

(3)

An Order in Council made under subsection (1)(b) or (2) is a legislative instrument, but not a disallowable instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Compare: 1947 No 16 s 11G(2)

243 Remuneration of acting Community Magistrate

For the period that an acting Community Magistrate acts as authorised under section 241, the acting Community Magistrate must be paid the salary, fee, and allowances determined for a Community Magistrate under section 242.

Compare: 1947 No 16 s 11H(4)

Registrars, bailiffs, and other officers of court

244 Appointment of Registrars, Deputy Registrars, and other officers of court

(1)

Registrars, Deputy Registrars, and other officers of the court (other than bailiffs) may be appointed under the State Sector Act 1988 for the conduct of the business of the court.

(2)

In any case where a Registrar or Deputy Registrar has died or is prevented by illness or other cause from acting in his or her office, a Judge may appoint a Deputy Registrar to act for such period as the Judge thinks fit, and a Judge may at any time terminate that person’s appointment.

Compare: 1947 No 16 ss 12(1), 14(1), (2)

245 Powers of Registrars and Deputy Registrars

(1)

A Registrar has the duties and powers—

(a)

conferred by this Part, any other enactment, or the rules:

(b)

necessary or desirable to ensure the efficient and effective administration of the operations of the court.

(2)

A Deputy Registrar has and may perform and exercise the same duties and powers as a Registrar.

(3)

Subsection (2) is subject to any provision to the contrary in the rules.

Compare: 1947 No 16 ss 12, 14(1A)

246 Registrar must hold record of proceedings

(1)

The Registrar must hold such records of, and in relation to, proceedings as the chief executive requires.

(2)

If the existence of the record of the court is in dispute, the existence of the record must be determined by the court.

Compare: 1947 No 16 s 13(1), (3)

247 Admissibility of document required to be held by Registrar

(1)

This section applies to—

(a)

a document or part of a document required by the rules to be held by a Registrar; or and

(b)

a copy of or an extract from the document or part of the document that has been sealed with the seal of the court and authenticated and certified by a Registrar as a true copy or correct extract.

(2)

A document or part of a document, or a copy of or an extract from it, referred to in subsection (1) is admissible without further proof as evidence of—

(a)

the document or part of it; and

(b)

the proceeding to which it relates; and

(c)

the regularity of that proceeding.

Compare: 1947 No 16 s 13(2)

248 Appointment of bailiffs

(1)

Bailiffs and deputy bailiffs may be appointed under the State Sector Act 1988 for the exercise of the powers and performance of duties of bailiffs set out in section 250.

(2)

A Judge may authorise a constable or other person to act on a particular occasion as a bailiff.

(3)

A bailiff must take an oath of office in the following form (or make an affirmation as provided by section 4 of the Oaths and Declarations Act 1957):

English form

“I, [name], swear that I will faithfully and diligently serve Her (or His) Majesty [specify the name of the reigning Sovereign, as in: Queen Elizabeth the Second], Queen (or King) of New Zealand, her (or his) heirs and successors, as a bailiff at [place], without favour or affection, malice or ill-will. While I hold this office I will, to the best of my power, keep the peace and prevent offences against the peace and will, to the best of my skill and knowledge, perform all the duties of the office of bailiff according to law. So help me God.”

Māori form

“Tēnei au, a [ingoa], e kī taurangi nei, ka rato pirihonga, urupū hoki ahau i Ia Arikinui [tohua te ingoa o te Arikinui kei runga i te torona, pērā ki a Kuini Irahāpeti te Tuarua], Kuini (Kīngi rānei) o Niu Tīreni, me ōna uri whakaheke, hei kaituku hāmene ki [wāhi] i roto i te kore tautoko, kore aroha rānei, kore mahi kino, kore whakaaro kino rānei. I te wā ke tēnei tūranga ahau ka pōkaikaha ahau ki te hohou i te rongo me te kaupare atu i nga mahi kotikoti i te rongo, ā, i roto i ōku tino pūkenga me ōku mōhio, ka whakatutuki i ngā mahi kua whakaritea hei mahi mā te kaituku hāmene, e ai ki te ture. Nō reira, āwhina mai i ahau e te Atua.”

Compare: 1947 No 16 s 15(1), (2), 17(1)(a), (3)

249 Appointment of deputy bailiffs

(1)

A Judge may—

(a)

appoint a deputy to act for a bailiff who is prevented from by illness or other cause from acting as bailiff; and

(b)

in the case of the death of a bailiff, may appoint a deputy to act as bailiff until another appointment is made.

(2)

A Judge may at any time terminate the appointment of a deputy bailiff appointed under subsection (1).

Compare: 1947 No 16 s 16(1)

250 Powers and duties of bailiffs

(1)

A bailiff has—

(a)

the powers of a constable:

(b)

the power to serve a court document or an order:

(c)

the power to enforce an order of the court:

(d)

the power to execute a warrant:

(e)

any other powers conferred by this Part, any other enactment, or the rules.

(2)

A bailiff must—

(a)

attend each session of the court to which he or she is appointed for such time as is required, unless his or her presence is excused by the court:

(b)

as required, serve the summonses and orders, and execute the warrants, issued by the court, but may authorise any person to act for him or her in effecting the service or execution:

(c)

conform to the rules and regulations governing the execution of the office of bailiff, and in other respects be subject to the directions of a Judge or Registrar.

(3)

In enforcing an order of the court, a bailiff has the same powers and is subject to the same liabilities as a Sheriff of the High Court.

(4)

Sections 121, 128, and 129 of the Search and Surveillance Act 2012 (which relate to a general power to stop vehicles) do not apply to a bailiff.

Compare: 1947 No 16 ss 17(1), (2), 17A

251 Powers, etc, of deputy bailiffs

A deputy bailiff, under this Part and any other Act, has the same powers and privileges, must perform the same duties, and is subject to the same penalties and provisions as if he or she were a bailiff.

Compare: 1947 No 16 s 16(2)

252 Misconduct of officers

(1)

This section applies if an officer of the court is charged with—

(a)

extortion or misconduct while acting on court business; or

(b)

failing to account for or pay money received by him or her under the authority of this Part.

(2)

A Judge may inquire into the matter and may require the attendance of all necessary persons as if those persons were witnesses in a proceeding.

(3)

After inquiry, the Judge may—

(a)

make orders for the repayment of money extorted or received and for the payment of damages and costs; and

(b)

impose a fine on the officer not exceeding $2,000 for each offence.

Compare: 1947 No 16 s 19

253 Officer of court must not act as lawyer in court proceedings

(1)

Except as provided by this Part or the rules or by any other enactment, an officer of the court must not directly or indirectly act as a lawyer or an agent for any party in any proceedings in any court.

(2)

A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding $1,000.

Compare: 1947 No 16 s 20

Court business

254 Sessions of court and adjournments

(1)

Subject to a direction by the Chief District Court Judge, a Judge may hold a session of the court at a time and place the Judge thinks fit.

(2)

Subject to the power of a Judge under subsection (1), a Registrar may hold a session of the court at a time and place the Registrar thinks fit if—

(a)

the Registrar is satisfied that the session could more conveniently or fairly be held at that time and place; and

(b)

all the parties to the proceeding consent.

(3)

A Judge may adjourn a session of the court to a time and place the Judge thinks fit.

(4)

A Registrar must adjourn a session of the court if a Judge is not present at the time appointed for that session, and the Registrar may adjourn it to the time and place that the Registrar determines.

(5)

Nothing in section 191 affects the power of a Judge under subsection (1).

Compare: 1947 No 16, ss 4A, 22, and 23

Subpart 4—Jurisdiction

Criminal jurisdiction of District Court

255 Criminal jurisdiction of court

The court has the jurisdiction in relation to criminal proceedings conferred by—

(a)

the Criminal Procedure Act 2011; and

(b)

any other enactment.

Civil jurisdiction of District Court

256 General civil jurisdiction

(1)

The court has jurisdiction to hear and determine a proceeding—

(a)

in which the amount claimed or the value of the property in dispute does not exceed $350,000:

(b)

that, under any enactment other than this Part, may be heard and determined in the court.

(2)

The amount claimed in a proceeding under subsection (1) may be for the balance, not exceeding $350,000, of an amount owing after a set-off of any claim by the defendant that is admitted by the claimant.

Compare: 1947 No 16 s 29

257 Money recoverable by statute

(1)

The court has jurisdiction to hear and determine a proceeding—

(a)

for the recovery of any penalty, expenses, costs, contribution, or similar monetary liability that is recoverable under any enactment; and

(b)

in which the amount claimed does not exceed $350,000 excluding interest under the Judicature Modernisation Act 2013 that may be payable under section 87 of the Judicature Act 1908.

(2)

Subsection (1) does not apply if an enactment expressly provides that the proceeding can may only be brought in another court.

(3)

In subsection (1)(a), penalty does not include a fine to which a person is liable on conviction of an offence.

Compare: 1947 No 16 s 30

258 Jurisdiction in equity

(1)

Subject to other provisions in this Part, the court has the same equitable jurisdiction as the High Court.

(2)

However, the court does not have jurisdiction under subsection (1) to hear and determine a proceeding in which the amount claimed or the value of the property that is the subject of the proceeding exceeds $350,000.

(3)

Subsection (1) does not apply if an enactment (other than section 11 of the Judicature Modernisation Act 2013) expressly provides that the proceeding is a proceeding or class of proceeding that another court has jurisdiction to hear and determine.

(4)

Despite subsection (3), the court may make orders under section 49 of the Administration Act 1969.

Compare: 1947 No 16 s 34(1)(a), (2), (2A), (3)

259 Jurisdiction in relation to partnerships

(1)

The court has jurisdiction to hear and determine any proceeding for the dissolution or winding up of any partnership (whether or not the existence of the partnership is in dispute), if the total assets of the partnership do not exceed $350,000 in amount or value.

(2)

No proceeding in the court for the dissolution or winding up of a partnership, nor any order made in the proceeding, prevents a creditor from applying for the adjudication of a member of the partnership as a bankrupt.

Compare: 1947 No 16 s 34(1)(b), (3)

260 Exceptions

(1)

The court does not have jurisdiction to hear and determine the following classes of proceedings:

(a)

proceedings for the recovery of land (but see section 261(1)(a)):

(b)

proceedings relating to the title to a royal privilege or other grant of a Crown prerogative:

(c)

proceedings relating to the validity or interpretation of a will:

(d)

proceedings or applications that under any enactment must be heard and determined by a court other than the District Court.

(2)

However, despite subsection (1)(c), the court does have jurisdiction to hear and determine any proceedings in which title to inheritable property is in issue if the proceedings are otherwise within its jurisdiction.

Compare: 1947 No 16 ss 29(1), 35

261 Jurisdiction to recover land in certain cases

(1)

Despite section 260(1)(a), the court has jurisdiction to hear and determine a proceeding for the recovery of land in the situations specified in subsection (2) if—

(a)

the annual rent does not exceed $62,500; or

(b)

the value of the land does not exceed $500,000.

(2)

The situations are—

(a)

a lessee or other person occupying premises has failed to vacate the whole or part of the premises after—

(i)

the lease has ended or been terminated by the lessor or the lessee; and

(ii)

the lessor or the lessee (in the case of another person occupying the whole or part of the premises) has given notice to vacate the premises or has demanded possession of the premises, as the case may be:

(b)

a lessor is entitled to exercise a right to re-enter premises for non-payment of rent:

(c)

a person without right, title, or licence is in possession of the land.

(3)

For the purposes of subsection (1)(b), if the capital value of the land appears in a district valuation roll under the Rating Valuations Act 1998, that value is the value of the land.

Compare: 1947 No 16 s 31

262 Abandonment of part of claim to give court jurisdiction

(1)

This section applies to a proceeding that, apart from this section, the court would not have jurisdiction to hear and determine because the amount of the claim or the value of the property or relief claimed or in issue exceeds the monetary limit of the court’s jurisdiction.

(2)

If the claimant abandons the excess,—

(a)

the court has jurisdiction to hear and determine the proceeding; and

(b)

the claimant cannot recover an amount exceeding the monetary limit of jurisdiction plus costs.

(3)

The judgment of the court in the proceeding operates as a full discharge of the cause of action.

Compare: 1947 No 16 s 36

263 Extension of jurisdiction by consent

(1)

This section applies to a proceeding (including a proceeding in admiralty) that, apart from this section, the court would not have jurisdiction to hear and determine because the amount of the claim or the value of the property or relief claimed or in issue exceeds the monetary limit of the court’s jurisdiction.

(2)

If the parties to the proceeding or to a counterclaim in the proceeding consent,—

(a)

the monetary limit of the court’s jurisdiction is extended, for the purposes of the proceeding, to the limit of the amount of the claim or the value of the property or relief claimed; and

(b)

the court may hear and determine the proceeding on that basis.

Compare: 1947 No 16 s 37

264 Jurisdiction exclusive of interest

Interest included in the amount for which a judgment is given under the Judicature Modernisation Act 2013 payable under Part 4 of the Judicature Modernisation Act 2013 included in the amount for which a judgment is given is not to be taken into account for the purposes of determining the jurisdiction of the court.

Compare: 1947 No 16 s 42A

265 Causes of action not to be divided

(1)

A cause of action may not be divided for the purpose of bringing 2 or more proceedings or a counterclaim.

(2)

Nothing in subsection (1) prevents a party from including in a single proceeding multiple causes of action that in the aggregate, but not individually, exceed the jurisdiction of the court.

Compare: 1947 No 16 s 38

266 Remedies

Subject to section 291, in a proceeding a Judge may, in the same way as a Judge of the High Court in the same or a similar proceeding,—

(a)

grant the same remedies, redress, or relief:

(b)

dispose of the proceeding:

(c)

give the same effect to every ground of defence or counterclaim, whether legal or equitable.

Compare: 1947 No 16 s 41

267 Proceedings against absent defendant

The court must not determine any proceeding against a defendant who is absent from New Zealand unless the court is satisfied that—

(a)

service has been effected in any of the ways provided by the rules; or

(b)

service has been effected in accordance with the rules on an agent of the defendant who is authorised to accept service.

Compare: 1947 No 16 s 39

Subpart 5—Transfer of proceedings

268 Transfer of proceeding in which amount or value of claim exceeds $90,000

(1)

This section applies to a proceeding in which the amount of the claim or the value of the property or relief claimed or in issue exceeds $90,000.

(2)

A defendant in the proceeding may by notice require that the proceeding be transferred to the High Court.

(3)

On receipt of the notice, a Judge must order that the proceeding is be transferred to the High Court.

(4)

This section does not apply to a proceeding for the recovery of land, unless a Judge certifies that, in the Judge’s opinion,—

(a)

an important question of law is likely to arise; or

(b)

a question of title to an hereditament is likely to arise other than incidentally.

Compare: 1947 No 16 s 43(1), (5)

269 Transfer of proceeding in which amount or value of claim does not exceed $90,000

(1)

This section applies to a proceeding in which the amount of the claim or the value of the property or relief claimed or in issue does not exceed $90,000.

(2)

A Judge may, on application by a defendant in the proceeding, transfer the proceeding to the High Court if the Judge is satisfied that—

(a)

an important question of law or fact is likely to arise; or

(b)

a question of title to an hereditament is likely to arise other than incidentally.

Compare: 1947 No 16 s 43(2), (5)

270 Procedure for transfer of proceeding

(1)

A notice or an application for the transfer of a proceeding under section 268 or 269 must be given or made within the prescribed period or, with the leave of a Judge, within any further time specified by the Judge.

(2)

An order transferring the proceeding may be made on such conditions as the Judge thinks fit including requiring the defendant to give security for the costs of the proceeding in the High Court.

(3)

Sections 268 and 269 apply to a counterclaim as if—

(a)

the counterclaim were a proceeding; and

(b)

the defendant in the counterclaim were the defendant in the proceeding.

(4)

On the transfer of a proceeding in which there is a counterclaim or on the transfer of a counterclaim, the whole proceeding, including the claim and the counterclaim, must be transferred to the High Court.

(5)

For the purposes of subsection (4), the Registrar of the relevant office of the District Court must send to the Registrar of the relevant registry of the High Court—

(a)

a sealed copy of the order transferring the proceeding; and

(b)

a copy of the documents by which the proceeding was commenced and of all other documents filed in the District Court in the proceeding; and

(c)

a copy of such other documents as the Judge of the District Court directs.

Compare: 1947 No 16 s 43(3), (4)

271 High Court Judge may order removal of proceeding into High Court

(1)

A High Court Judge may, on application by a party to a proceeding, order the removal of the proceeding into the High Court if the Judge is satisfied that it is desirable to do so.

(1A)

In deciding whether to make an order under subsection (1), the Judge must have regard to the following factors:

(a)

the nature of the case:

(b)

the complexity of the case:

(c)

the general or public importance of the case:

(d)

the amount in issue:

(e)

the likely length of the hearing:

(f)

the financial resources of the parties:

(g)

whether it is otherwise in the interests of justice to make the order.

(2)

The order may be made on such conditions, including conditions as to costs or giving security for costs, that as the Judge thinks fit.

(3)

This section overrides sections 268 to 270.

Compare: 1947 No 16 s 43(6)

272 Transfer of proceeding if no jurisdiction

(1)

A Judge may order the transfer of a proceeding for which the court does not have jurisdiction to the High Court or to another court that has jurisdiction. This subsection is subject to subsection (2).

(2)

A Judge may strike out a proceeding if satisfied that the claimant knew or ought to have known that the court did not have jurisdiction to hear and determine the proceeding.

(3)

A Judge who strikes out a proceeding under subsection (2) may award costs as if the court did have jurisdiction and the claim failed.

Compare: 1947 No 16 s 44

273 Transfer of proceeding to High Court if counterclaim exceeds jurisdiction

(1)

This section applies to a proceeding in the court in which a counterclaim or set-off and counterclaim involves a matter that is outside the jurisdiction of the court.

(2)

A party to the proceeding may apply, within the time prescribed by the High Court Rules 2016, to the High Court for an order transferring the proceeding, or the proceeding on the counterclaim or set-off and counterclaim, to the High Court.

(3)

A Judge of the High Court may order that—

(a)

the proceeding is be transferred to the High Court; or

(b)

the proceeding is be heard and determined in the District Court; or

(c)

only the proceeding on the counterclaim or set-off and counterclaim is be heard in the High Court and that the rest of the proceeding is be heard and determined in the District Court.

(4)

Execution of a judgment of the court in favour of a claimant in a proceeding to which subsection (3)(c) applies must, unless the High Court orders otherwise, be stayed until the proceeding transferred to the High Court is heard and determined.

(5)

The court has jurisdiction to hear and determine a proceeding to which this section applies if—

(a)

no application is made under subsection (2) within the time prescribed by the High Court Rules 2016; or

(b)

the High Court orders that the proceeding is be heard and determined in the District Court.

(6)

Subsection (5) overrides anything to the contrary in any other enactment.

(7)

Where the High Court makes an order under this section, the Registrar of the relevant registry of the High Court must send a copy of the order to the Registrar of the relevant office of the District Court.

Compare: 1947 No 16 s 45

274 Transfer of summary judgment applications to High Court

(1)

Subject to subsection (1A), a Judge may, on the application of a party to a summary judgment application made in the court or on the Judge’s own initiative, order that the summary judgment application or a matter arising in the summary judgment application is be transferred to the High Court.

(1A)

A Judge may make the order if the Judge is satisfied that an important question of law is likely to arise.

(2)

The High Court may—

(a)

hear and determine the summary judgment application or a matter arising in it; or

(b)

refer the summary judgment application or a matter arising in it back to the District Court with any directions that the High Court thinks fit.

Compare: 1947 No 16 s 45A

275 Determination of question of law by High Court

(1)

A Judge may order that a question of law in a proceeding in the court must be determined by the High Court.

(2)

The High Court has the same power to determine the question as the District Court.

Compare: 1947 No 16 s 45B

276 Transfer of proceeding from High Court to District Court

(1)

A Judge of the High Court may, on the application of a party to a proceeding commenced in the High Court, transfer the proceeding to the District Court if—

(a)

an agreement under section 263 applies to the proceeding; or

(b)

the subject matter of the proceeding is within the jurisdiction of the District Court.

(2)

A Judge of the High Court may, on the Judge’s own initiative, order the transfer to the District Court of a proceeding commenced in the High Court if—

(a)

the subject matter of the proceeding is within the jurisdiction of the District Court; and

(b)

the Judge is satisfied that no important question of law or fact is likely to arise in the proceeding.

Compare: 1947 No 16 s 46

277 Procedure on transfer of proceeding to District Court

(1)

If an order is made under section 276 to transfer a proceeding to the District Court, the Registrar of the relevant registry of the High Court must send to the Registrar of the relevant office of the District Court—

(a)

a sealed copy of the order transferring the proceeding; and

(b)

a copy of the documents by which the proceeding was commenced and of all other documents filed in the High Court in the proceeding; and

(c)

a copy of such other documents as the Judge of the High Court directs.

(2)

Subject to the rules, the District Court has jurisdiction to hear and determine the proceeding on the transfer to the court of the documents, despite anything contained in any other enactment, and must do so as if the proceeding had was originally commenced in the District Court.

(3)

The transfer of the proceeding to the District Court does not affect—

(a)

any right of appeal or the right to apply for leave to appeal against any decision of the High Court in the proceeding or against the order transferring the proceeding; or

(b)

the right to enforce a judgment or an order of the High Court made in the proceeding.

Compare: 1947 No 16 s 47

278 Costs in cases transferred

(1)

This section applies to a proceeding or counterclaim or set-off and counterclaim (a transferred proceeding) that is transferred—

(a)

from the District Court to the High Court; or

(b)

from the High Court to the District Court.

(2)

Any order for costs in a transferred proceeding must be made by the court to which the proceeding is transferred.

(3)

Subsection (2) is subject to an order of the court that made the order to transfer the proceeding.

(4)

An order for costs in relation to part of a proceeding transferred to the District Court that takes place in the High Court—

(a)

must be made in accordance with the High Court Rules 2016; and

(b)

subject to any order by a High Court Judge, may be made by a District Court Judge.

(5)

Subsection (6) applies to—

(a)

a summary judgment application or a matter arising on a summary judgment application that has, after having been transferred to the High Court under section 274, been referred back to the District Court:

(b)

a proceeding continued in the District Court after a question of law in the proceeding has, under section 275, been determined in the High Court.

(6)

An order for costs in the proceeding or matter in relation to the proceeding in the District Court both before and after transfer to the High Court must be made by a District Court Judge.

(7)

Despite subsection (6), an order for costs incurred in the High Court may be made only by a High Court Judge in accordance with the High Court Rules 2016, but may be included in a judgment or an order made by the District Court.

Compare: 1947 No 16 s 48

Subpart 6—Procedure

Parties

279 Trustees, executors, and administrators

(1)

Any trustee, executor, or administrator may be a party to a proceeding as if he or she were a party in his or her own right, without joining any of the persons beneficially interested in the trust or estate, and is taken to represent those persons in the proceeding.

(2)

The court may at any stage of the proceeding make an order joining any of the persons beneficially interested as parties to the proceeding, whether as an additional party or in substitution for an existing party.

Compare: 1947 No 16 s 49

280 Minors

(1)

Any minor who is or has been married or in a civil union may be a party to a proceeding in contract or tort in his or her own name.

(2)

A judgment in a proceeding under subsection (1) may be given and enforced in the minor’s own name.

(3)

In this section, minor means a person who is under the age of 18 years.

(4)

Any minor who is or has been married or in a civil union and any person over the age of 18 years but under the age of 21 years may make or be a party to an application under section 8 of the Domestic Actions Act 1975 without a next friend or guardian ad litem.

(5)

The court may make orders on an application referred to in subsection (4), and proceedings to enforce an order may be taken, in the minor’s own name.

Compare: 1947 No 16 s 50(1)(3)

281 Persons jointly liable

In a claim against 2 or more persons who are jointly liable,—

(a)

it is sufficient to serve any 1 or more of those persons; and

(b)

judgment may be obtained, and execution issued, against a person served, whether or not the others who are jointly liable have been served or sued or are within the jurisdiction of the court; and

(c)

a person against whom judgment is obtained and who has satisfied the amount of the judgment in full or in part may recover contribution from any other person who is jointly liable.

Compare: 1947 No 16 s 51

282 Bankruptcy of plaintiff

(1)

The bankruptcy of a plaintiff in a proceeding that the Official Assignee might continue for the benefit of creditors does not bring the proceeding to an end if, within a reasonable time as ordered by the court, the Official Assignee elects to continue it.

(2)

The court may adjourn the proceeding to enable an election to be made.

(3)

If the Official Assignee does not elect to continue the proceeding within the time allowed by the court, the defendant may rely on the bankruptcy as a defence to the proceeding.

Compare: 1947 No 16 s 52

Witnesses

283 Witness expenses

(1)

The following persons are entitled, in the prescribed amount, to witness expenses and compensation for loss of time:

(a)

a person who comes to the court on a witness summons:

(b)

a person who gives evidence in a proceeding.

(2)

Despite subsection (1), the court may disallow the whole or part of any witness expenses or compensation for loss of time.

(3)

The person who calls the witness is liable to pay the amount of witness expenses and compensation for loss of time.

Compare: 1947 No 16 s 53

284 Offence to disobey witness summons

(1)

Every person commits an offence and is liable on conviction to a fine not exceeding $2,000 who, having been served with a witness summons,—

(a)

having been served with a witness summons, fails without reasonable excuse to appear or to produce any documents required to be produced in accordance with the summons; or

(b)

refuses to be sworn or to give evidence.

(2)

It is a defence to a charge under subsection (1) that the person’s witness expenses in the prescribed amount have not been paid or tendered to him or her at the time the witness summons is served or within a reasonable time before the hearing.

(3)

The conviction of a person for an offence against this section does not prevent a civil claim against the person for failing to comply with a witness summons or for refusing to be sworn or to give evidence.

Compare: 1947 No 16 s 54

285 Examination of witnesses and service of process overseas

On an application made in accordance with the rules, the court may—

(a)

issue a commission, request, or order for the examination of witnesses overseas for the purpose of any proceeding:

(b)

direct and supervise the service overseas of any process of the court.

Compare: 1947 No 16 s 55

286 Who may take affidavit

(1)

Any of the following persons may take an affidavit or an affirmation to be used in the court:

(a)

a Judge:

(b)

a Registrar:

(c)

a Justice of the Peace:

(d)

a Community Magistrate:

(e)

a lawyer.

(2)

However, a lawyer may not take an affidavit or an affirmation for use in a proceeding in which the lawyer is engaged, unless the affidavit or affirmation is for use in an ex parte application in a non-contentious proceeding.

Compare: 1947 No 16 s 56

Discovery

287 Pre- discovery

(1)

The court may, in the circumstances set out in the rules, make the orders set out in subsection (2) if—

(a)

a person (A) has made an application for those orders in accordance with the rules; and

(b)

it appears to the court that A is or may be entitled to bring a proceeding in the court; and

(c)

it appears to the court that another person (B) is likely to have or have had in B’s possession, custody, or power a document or class of documents that is relevant to an issue arising or likely to arise in A’s proceeding.

(2)

The court may order B—

(a)

to disclose to the court and to any other prescribed person whether the document or documents are in B’s possession, custody, or power; and

(b)

if a document has been but is no longer in B’s possession, custody, or power, to disclose to the court and to any other prescribed person when B parted with it and what has become of it; and

(c)

to produce such of those documents as are in B’s possession, custody, or power to the court or to any other prescribed person.

Compare: 1947 No 16 s 56A

288 Discovery against non-party after proceeding commenced

(1)

This section applies if it appears to the court, at any stage of a proceeding and in such circumstances as may be prescribed, that a document or class of documents may be or may have been in the possession, custody, or power of a person (C) who is not a party to the proceeding.

(2)

The court may order C—

(a)

to disclose to the court and to any other prescribed person whether the document or documents are in C’s possession, custody, or power; and

(b)

if a document has been but is no longer in C’s possession, custody, or power, to disclose to the court and to any other prescribed person when C parted with it and what has become of it; and

(c)

to produce such of those documents as are in C’s possession, custody, or power to the court or to any other prescribed person.

Compare: 1947 No 16 s 56B

Subpart 7—Hearing

289 Right to appear

(1)

A natural person who is a party to a proceeding in the court may—

(a)

appear and act for himself or herself; or

(b)

be represented by a lawyer.

(3)

A corporation may—

(a)

appear and act through any officer or attorney of the corporation; or

(b)

be represented by a lawyer.

(3A)

In special circumstances and with the permission of the court, a person (P), whether a natural person or a corporation, may be represented—

(a)

by an agent authorised in writing by P, if P is in New Zealand or carries on business in New Zealand; or

(b)

if P is not in New Zealand or does not carry on business in New Zealand, by an agent authorised by a person holding P’s power of attorney to become a party to the proceeding in P’s name.

(4)

An agent who represents a person under subsection (2) or (3A) is not entitled to receive any fee or reward for doing so.

Compare: 1947 No 16 s 57

290 Trial by Judge

(1)

In all proceedings brought in the court, the Judge is the sole judge and must determine all questions of fact and law.

(2)

However, nothing in this section affects the power to make rules authorising the Registrar to exercise jurisdiction and powers conferred on the court by this or any other enactment.

Compare: 1947 No 16 s 58

291 Equity and good conscience

In a proceeding in which the amount claimed or the value of the property in issue does not exceed $5,000, the court may—

(a)

receive any evidence the court thinks fit, even though the evidence may not be admissible under the Evidence Act 2006; and

(b)

determine the proceeding according to equity and good conscience.

Compare: 1947 No 16 s 59; 1988 No 110 s 18(6)

292 Judge must record various matters

(1)

The Judge at a hearing in a proceeding in which there is a right of appeal without leave must record or cause to be recorded, whether by way of transcript or otherwise, the following matters:

(a)

the facts in evidence; and

(b)

any question of law or equity raised at the hearing; and

(c)

the Judge’s decision and of his or her determination of the proceeding.

(2)

On the application of a party to the proceeding, and on payment of the prescribed fee (if any), the Judge must ensure that a copy of the records, whether in hard copy or electronic form, is provided to that party.

(3)

Subsection (2) applies whether or not a notice of appeal has been served.

Compare: 1947 No 16 s 60

293 Reference to arbitration

(1)

The court may, with the consent of the parties to a proceeding, order the proceeding or any issue in dispute in the proceeding to be referred to arbitration under the Arbitration Act 1996.

(2)

The Judge may, on the application of a party to the proceeding, revoke the reference.

(3)

Without limiting subsection (2), a reference may be revoked if the arbitral tribunal does not make an award within 20 working days after the date of the order of reference.

(4)

An award has the same effect as a judgment of the court and must be entered as a judgment in the proceeding.

Compare: 1947 No 16 s 61(1)–(4)

294 Application to set arbitral award aside

(1)

Despite section 293(4), the court may, on the application of a party to the proceeding,—

(a)

set aside an arbitral award made on a reference under section 293; or

(b)

set the award aside and, with the consent of the parties, order the proceeding or the issue in dispute to be referred to arbitration again.

(2)

An application under subsection (1) must be made within 10 working days after the entry of the award as a judgment or within any further time as a Judge may allow.

(3)

A judgment may not be enforced until an application under subsection (1) is determined.

(4)

On hearing an application under subsection (1), the court—

(a)

may consider any evidence that is placed before it; or

(b)

may call for evidence to be placed before it.

(5)

The decision of the court after hearing the application must be entered as a judgment of the court.

Compare: 1947 No 16 s 61(4)–(6)

295 Judge may refer matter to Registrar or referee

(1)

Subject to the rules, a Judge may refer the following to a Registrar or a referee to make an inquiry and a report:

(a)

any proceedings that require the prolonged examination of documents or any scientific or local examination that the Judge considers cannot conveniently be made before him or her:

(b)

any proceedings where the question in dispute consists wholly or partly of matters of account:

(c)

with the consent of the parties, any other proceedings:

(d)

any question arising in any proceedings.

(2)

When a reference is made under subsection (1), the Judge may—

(a)

give directions to the Registrar or referee for the conduct of the reference:

(b)

remit a report for a further inquiry and report:

(c)

on consideration of the report or further report, make a judgment or an order in the proceedings that the Judge thinks fit.

Compare: 1947 No 16 s 62

296 Judge may refer matter of account to Registrar, etc

(1)

A Judge may, after deciding or reserving any question of liability, refer to a Registrar or a Registrar and an accountant only any matter of account only that is disputed between the parties.

(2)

After deciding the question of liability, the Judge may give judgment on the Registrar’s report.

Compare: 1947 No 16 s 62(3)

297 Reference by consent

(1)

With the consent of the parties, a Judge may refer any question in any proceedings that requires any scientific, technical, business, or professional investigation to a Registrar or a referee for an inquiry and a report.

(2)

Where a reference is made under subsection (1), the Judge may—

(a)

give directions to the Registrar or referee for the conduct of the reference:

(b)

with the consent of the parties, direct that the Registrar or referee make the inquiry and report without any requirement to hear the parties or to act judicially.

(3)

The report of a Registrar or referee on any question referred under this section is binding on the parties, unless the Judge has directed otherwise.

Compare: 1947 No 16 s 62A

Subpart 8—Judgments, orders, and removal of judgments

Judgments and orders

298 Finality of judgments and orders

(1)

A judgment or an order of the court is final and conclusive between the parties.

(2)

Subsection (1) is subject to this Part, any other enactment, and the rules.

Compare: 1947 No 16 s 63

299 Technical defects do not invalidate judgment, order, or proceeding

A technical defect or an irregularity does not invalidate a judgment, an order, or a proceeding.

Compare: 1947 No 16 s 64

300 Payment of judgments or orders

(1)

When giving a judgment or making an order for the payment of an amount of money (whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise), the court may order the amount of money to be paid—

(a)

in 1 amount, whether immediately or within the time that the court determines; or

(b)

in instalments, as determined by the court.

(2)

Except when the court makes an express order for payment in instalments, every judgment or order for the payment of an amount of money is taken to include an order for the payment immediately of the whole amount.

Compare: 1947 No 16 s 65(1), (2)

301 Stay if party unable to pay judgment amount

(1)

The court may suspend or stay or vary any judgment or order for the payment of an amount of money if the court considers that the party who must pay the money is unable to do so.

(2)

The court may suspend or stay or vary the judgment or order for the period and on the terms that the court thinks fit, and may extend the suspension or stay or variation for as long as the cause of the inability continues.

Compare: 1947 No 16 s 65(3)

Removal of judgments

302 Removal of judgment of District Court into High Court

(1)

A judgment creditor or a person on the judgment creditor’s behalf may apply to the court to remove into the High Court a final judgment or an order of the District Court (the judgment) for the payment of an amount of money.

(2)

The Registrar must issue a certificate of removal in the prescribed form, which may be filed by the judgment creditor in the High Court.

(3)

The Registrar must not issue a certificate of removal—

(a)

before the expiry of the time for giving notice of an appeal against the judgment:

(b)

if an enforcement proceeding has been issued in relation to the judgment, until the enforcement proceeding has been withdrawn or completed.

(4)

No further steps may be taken in relation to the proceeding in which the judgment was given after the Registrar’s certificate has been filed in the High Court.

(5)

On the removal of the judgment,—

(a)

the judgment may be enforced as a judgment of the High Court, with such fees and costs as may be paid or allowed in connection with the removal and entry of judgment:

(b)

no appeal may be brought against the judgment.

(6)

A Judge of the High Court may, on the application of the judgment creditor or judgment debtor, set the removal aside on such terms as to costs or otherwise that the Judge thinks fit.

Compare: 1947 No 16 s 66

303 Proceeding in High Court on judgment or order of District Court

(1)

A proceeding may be brought in the High Court on a judgment or an order of the District Court.

(2)

Costs may be awarded to the plaintiff in the proceeding only if a Judge of the High Court is satisfied that the proceeding was necessary and proper to enforce the judgment or order against the person or property of the defendant.

Compare: 1947 No 16 s 67

304 Removal of judgment or order of High Court into District Court

(1)

A judgment creditor or a person on behalf of the judgment creditor may apply to the High Court to remove into the District Court a judgment or an order or a decree (the judgment) of the High Court (the judgment) for payment of an amount of money.

(2)

The Registrar of the High Court must issue a certificate of removal in the prescribed form, which may be filed by the judgment creditor in the District Court.

(3)

No further steps may be taken in relation to the proceeding in which the judgment was given in the High Court after the Registrar of the High Court has issued the certificate.

(4)

On the filing of the certificate,—

(a)

if the District Court has jurisdiction in relation to the amount of the judgment, the judgment plus interest may be enforced in the District Court; or

(b)

if the District Court has jurisdiction in relation to the unpaid balance of the judgment, the unpaid balance of the judgment plus interest may be enforced in the District Court; or

(c)

if the District Court has jurisdiction in relation to the amount of part of the judgment and the judgment creditor abandons any amount in excess of that amount, the part of the judgment or of the unpaid balance of that part plus interest may be enforced in the District Court.

(5)

A judgment may also be enforced for any fees and costs awarded in connection with removing it into the District Court.

(6)

Except as provided by this section, no proceeding on a judgment of the High Court may be brought in the District Court.

Compare: 1947 No 16 s 68

Subpart 9—Appeals

Appeals to High Court

305 Interpretation

In this subpart,—

appeal means an appeal under section 306

decision includes a judgment and an interim or a final order, but does not include an order under section 394 (which relates to an order for contempt of court)

make includes give.

Compare: 1947 No 16 s 71

306 General right of appeal

(1)

This subpart applies to a decision of the court, other than a decision of a kind in respect of which an enactment other than this Part

(a)

expressly confers a right of appeal; or

(b)

expressly provides that there is no right of appeal.

(2)

A party to a proceeding in the District Court may appeal to the High Court against the whole or a part of a decision made by the District Court in or in relation to the proceeding.

Compare: 1947 No 16 s 72

307 No appeal if agreement that decision would be binding

(1)

An appeal may not be brought if, before the decision of the court, all the parties to the proceeding agree in writing that the decision will be binding on them.

(2)

This section overrides section 306.

Compare: 1947 No 16 s 73

308 Security for appeal

(1)

An appellant under section 306 may be required under the High Court Rules 2016 to give the Registrar of the High Court security for costs.

(2)

Subsection (1) does not apply if the appellant has been granted legal aid for the proceeding under the Legal Services Act 2011.

(3)

If security for costs is not given within the time required by the High Court Rules 2016, the appeal is abandoned.

Compare: 1947 No 16 s 74

309 Appeals to be by way of rehearing

Appeals must be by way of rehearing.

Compare: 1947 No 16 s 75

310 Powers of High Court on appeal

(1)

The High Court may, after hearing an appeal,—

(a)

make any decision it thinks should have been made:

(b)

direct the District Court—

(i)

to rehear the proceeding; or

(ii)

to consider or determine, whether for the first time or again, any matters the High Court directs; or

(iii)

to enter judgment for a specified party to the proceeding the High Court directs:

(c)

make any further or other orders the High Court thinks fit:

(d)

make an order as to costs.

(2)

The High Court must state its reasons for giving a direction under subsection (1)(b).

(3)

The High Court may give the District Court any direction it thinks fit relating to—

(a)

rehearing the proceeding; or

(b)

considering and determining any particular matter.

(4)

The High Court may act under subsection (1) in respect of the whole decision even though if the appeal is against only part of it.

(5)

Even though if an interlocutory decision made in a proceeding has not been appealed against, the High Court may—

(a)

act under subsection (1); and

(b)

set the interlocutory decision aside; and

(c)

if it sets the interlocutory decision aside, make in its place any interlocutory decision or decisions the District Court could have made.

(6)

The powers under this section may be exercised in favour of a respondent or party to the proceeding even though if the respondent or party did not appeal against the decision.

Compare: 1947 No 16 s 76

311 Repayment of judgment amount and interest

(1)

This subsection applies if—

(a)

a party to a proceeding in the District Court (A) has, in accordance with a judgment or an order of the court, paid an amount to another party to the proceeding (B); and

(b)

on appeal, the effect of the High Court’s determination is that some or all of the amount did not need to be paid.

(2)

The High Court—

(a)

may order B to repay to A some or all of the amount paid by A; and

(b)

may also order B to pay to A interest at a rate not greater than the prescribed rate (within the meaning of section 87(3) of the Judicature Act 1908)on the amount ordered to be repaid.

Compare: 1947 No 16 s 77

312 Enforcement proceedings

For the purposes of enforcement proceedings, a judgment or an order of the High Court under section 310(1)(a) or (b) or under section 311(2) must be treated as if it were a judgment or order of the District Court in which the decision appealed against was made.

Compare: 1947 No 16 s 78

Subpart 10—Enforcement of judgments

Enforcement proceedings

313 Types of enforcement proceeding

The types of enforcement proceeding in the court are—

(a)

a proceeding to enforce a judgment or an order for the payment of money (see section 315):

(b)

a proceeding to enforce a judgment or an order in the nature of an injunction (see section 316):

(c)

a proceeding to enforce a discovery order made under section 287 or 288 (see section 317):

(d)

a proceeding to enforce a judgment or an order for the recovery of land (see section 318):

(e)

a proceeding to enforce a judgment or an order for the delivery of specific chattels (see section 319).

314 Judgment may be enforced in any office of District Court

(1)

A judgment or an order of the District Court or of a District Court Judge may be enforced in any court comprising the District Court in its general division and need not be enforced in the court in which the judgment was entered or the order made.

(2)

Two or more proceedings for the enforcement of a judgment or an order may be taken concurrently, but the judgment creditor is not entitled to recover a greater amount than the total of the amount owing under the judgment or order and the costs and fees of any proceeding for enforcement.

(3)

Enforcement proceedings may be taken concurrently in accordance with subsection (2) in more than 1 court comprising the District Court in its general division.

Compare: 1947 No 16, ss 79(6), 79A

315 Judgment or order for payment of money

Any judgment or order of any court or of any Judge for the payment of an amount of money may be enforced in the District Court by any 1 or more of the following proceedings:

(a)

execution against the goods and chattels of the judgment debtor under a warrant to seize property:

(b)

garnishee proceedings for the attachment of money due to the judgment debtor:

(c)

proceedings for a charging order in respect of any property held by the judgment debtor and specified in section 366(2):

(d)

proceedings for an attachment order against the salary or wages of the judgment debtor.

Compare: 1947 No 16 s 79(1)

316 Judgment or order in nature of injunction, etc

(1)

This section—

(a)

applies to a judgment or an order in the nature of an injunction; and

(b)

applies to a judgment or an order within the competence of the court that, if it were given or made in the High Court, could be enforced in the High Court by a writ of arrest; but

(c)

does not apply to an order for the recovery of land.

(2)

A judgment or an order to which this section applies may be enforced, by order or warrant of a Judge, by detention for a term not exceeding 3 months.

Compare: 1947 No 16 s 79(2)

317 Discovery order

An order of the court made under section 287 (which relates to pre-commencement discovery) or section 288 (which relates to discovery against a non-party) may be enforced, by order or warrant of a Judge,—

(a)

by detention for a term not exceeding 3 months; or

(b)

by a fine not exceeding $1,000.

Compare: 1947 No 16 s 79(2A)

318 Judgment or order for recovery of land

A judgment or an order for the recovery of land may be enforced under a warrant for the recovery of land.

Compare: 1947 No 16 s 79(3)

319 Judgment or order for delivery of specific chattels

A judgment or an order for the delivery of specific chattels may be enforced, by order of a Judge,—

(a)

under a warrant for the recovery of chattels; or

(b)

by detention for a term not exceeding 3 months; or

(c)

by a fine not exceeding $1,000.

Compare: 1947 No 16 s 79(4)

Time when enforcement proceedings may commence

320 Time when enforcement proceedings may commence: general rule

(1)

Except as provided in section 321, proceedings to enforce a judgment or an order may not be commenced unless—

(a)

at least 48 hours have expired after the judgment was entered or the order was made; or

(b)

a Judge grants leave.

(2)

However, if a judgment or an order may be appealed against without the leave of the court, a Judge may—

(a)

order a stay of any proceedings to enforce the judgment or order; or

(b)

order that an attachment order to enforce the judgment or order not take effect until after the time allowed for giving notice of an appeal has expired.

Compare: 1947 No 16 s 79(5A), (5B)

321 Exception to general rule: attachment orders

(1)

An attachment order to enforce a judgment or an order for the payment of money may be made, and proceedings for such an attachment order may be commenced, at any time after the judgment is entered or the order is made.

(2)

An attachment order may be made, and proceedings for such an attachment order may be commenced, immediately after a judgment or an order for the payment of money is filed if,—

(a)

in the case of a money order (as defined in section 19(1A) of the Disputes Tribunals Act 1988 or, as the case may be, section 78(2AB) of the Residential Tenancies Act 1986),—

(i)

the money order records that the parties have agreed to enforce the payment of money specified in the money order by way of an attachment order made under this Part; and

(ii)

section 19(1B) of the Disputes Tribunals Act 1988 or, as the case may be, section 78(2AC) of the Residential Tenancies Act 1986 is complied with; or

(b)

in the case of a judgment or an order made by a court,—

(i)

the judgment or order records that the parties have agreed to enforce the payment of money specified in the judgment or order by way of an attachment order made under this Part; and

(ii)

subsection (3) is complied with.

(3)

Subsection (2) The subsection is complied with if—

(a)

the judgment or order was given or made at or following a hearing at which both parties were present; and

(b)

the party ordered to pay money consented to the payment of the money being enforced by way of an attachment order; and

(c)

both parties agreed on the terms of the attachment order, including the details specified in section 338; and

(d)

the judgment or order includes the details specified in section 338.

(4)

Nothing in subsection (3)(c) allows the parties to agree on a net amount to be paid for an earnings period that would otherwise derogate from section 339(3).

(5)

For the purposes of subsection (3), hearing includes a judicial settlement conference held under the rules.

Compare: 1947 No 16 s 79(5), (5C)–(5F)

Restrictions on enforcement proceeding

322 Restriction on enforcement of judgment that is more than 6 years old

(1)

A judgment or an order of the court that is more than 6 years old must not be enforced unless—

(a)

a Judge grants leave; or

(b)

there has been a payment into court or to the judgment creditor by the judgment debtor made by or on behalf of the party liable within the period of 12 months immediately before the issue of the enforcement proceeding.

(2)

For the purposes of subsection (1), a judgment that is an arbitral award entered as a judgment is more than 6 years old if 6 years have elapsed since the date on which the award became enforceable by action in New Zealand.

(3)

A Judge may grant leave on an application without notice.

Compare: 1947 No 16 s 80

323 No enforcement of order for payment by instalments without default

(1)

An order for the payment of an amount of money by instalments must not be enforced unless there has occurred a default in the payment of an instalment according to the order.

(2)

If there is a default, an enforcement proceeding or successive enforcement proceedings may be taken for the whole of the amount owing, including any unpaid costs, unless the court on the application of the liable party orders otherwise.

Compare: 1947 No 16 s 81

324 Proceeding on cross-judgment

(1)

This section applies if there are cross-judgments between the parties.

(2)

An enforcement proceeding can be taken only by the party who has obtained judgment for the larger amount, and then only for so much of the that larger amount that remains owing after deducting the smaller amount (the remainder) owed to the other party.

Compare: 1947 No 16 s 82

Stay of enforcement proceeding

325 Stay of enforcement proceeding for inability to pay

(1)

A Judge may stay an enforcement proceeding against a party if satisfied that the party is unable from any cause to pay any amount that is recoverable against that party (whether by way of meeting the claim or counterclaim in the proceedings or by way of costs or otherwise) or any instalment of that amount.

(2)

The Judge may stay the enforcement proceeding for the period and on the terms that the Judge thinks fit, and may renew the stay from time to time until the liable party is able to pay.

Compare: 1947 No 16 s 83

326 Stay of proceeding on appeal

A notice of appeal operates as a stay of proceedings under the decision appealed from only if—

(a)

a Judge orders that the proceedings are stayed; or

(b)

the appellant has deposited with the Registrar the amount of the judgment or order under appeal and the costs, pending determination of the appeal; or

(c)

the appellant has given security to the satisfaction of the Registrar for the amount of the judgment or order and costs.

Compare: 1947 No 16 s 84

Information about judgment debtor’s means

327 Filing of financial statement

(1)

In this Part, financial statement means a statement, in a form approved by the chief executive, of a judgment debtor’s—

(a)

assets and liabilities; and

(b)

income and expenditure for the preceding 52 weeks.

(2)

A financial statement may be completed by the judgment creditor or the judgment debtor.

(3)

If the financial statement is completed by the judgment creditor, the statement must include details of the source of the information contained in the statement and the date to which the information relates.

(4)

A completed financial statement may be filed in the court at any time after a judgment or an order for the payment of money is entered or made.

(5)

The party who files a completed financial statement must serve a copy of the statement on the other party.

Compare: 1947 No 16 s 84A

328 Notice to complete financial statement

(1)

If a judgment creditor serves a notice to complete a financial statement on the judgment debtor, the judgment debtor must, within 10 working days after the date of service,—

(a)

complete a financial statement; and

(b)

return it to the judgment creditor.

(2)

The notice to complete a financial statement must be—

(a)

in a form approved by the chief executive; and

(b)

accompanied by 2 copies of the approved form for a financial statement (1 for the judgment debtor to complete and return, the other for the judgment debtor’s use).

Compare: 1947 No 16 s 84B

329 Court to request information about judgment debtor’s means

(1)

If a judgment creditor makes an application in a form approved by the chief executive, the court must request the judgment debtor to provide the court with information about the judgment debtor’s means for satisfying the judgment debt.

(2)

The request may be made by any means of communication that the court considers appropriate.

(3)

The information may be provided at any place and using any means of communication that the court considers appropriate, and the court may request the person providing the information to verify it on oath.

Compare: 1947 No 16 s 84C

330 Court may order hearing if information about judgment debtor’s means not provided, etc

(1)

This section applies if—

(a)

no information about the judgment debtor’s means for satisfying the judgment debt is provided to the court following a request under section 329; or

(b)

the court wishes to obtain information about the judgment debtor’s means for satisfying the judgment debt in addition to information provided under section 329 before exercising its powers under section 335; or

(c)

a person providing information to the court under section 329 refuses to verify it on oath.

(2)

The court may issue a summons, in a form approved by the chief executive, requiring the judgment debtor or, if the judgment debtor is a body corporate, an officer of the judgment debtor to attend a hearing and be questioned by the court about the judgment debtor’s means for satisfying the judgment debt.

(3)

If the court issues a summons, the court may also—

(a)

order any of the judgment debtor’s books or other documents to be produced at the hearing:

(b)

order that the hearing be held at a place other than in a court:

(c)

impose such other terms and conditions as the court thinks proper in respect of the hearing.

(4)

The summons must be served on the judgment debtor by a person referred to in section 390(3)(a), and, at the same time as the summons is served, the judgment debtor must be notified of the court’s power to cancel the hearing in the circumstances referred to in subsection (5).

(4A)

The hearing must not be held until at least 3 working days or any shorter period agreed by the judgment debtor has passed after the date on which the summons was served or any shorter period agreed by the judgment debtor.

(5)

The court may cancel a hearing if, before the date of the hearing,—

(a)

such information about the judgment debtor’s means for satisfying the judgment debt is provided that, in the opinion of the court, it is unnecessary for the hearing to take place; and

(a)

the court considers that a hearing is not needed because the judgment debtor has provided enough information about the judgment debtor’s means for satisfying the debt; and

(b)

if the court so requests, the person providing the information verifies it on oath.

(6)

If a hearing takes place,—

(a)

the judgment debtor or, if the judgment debtor is a body corporate, an officer of the judgment debtor must appear in person:

(b)

the court may require the judgment debtor or officer and any witness to take an oath before giving evidence:

(c)

the judgment debtor may be represented by a lawyer who may question the judgment debtor or officer and be heard on the matter of the judgment debtor’s means for satisfying the judgment debt:

(d)

the judgment debtor or officer may be questioned by the court:

(e)

any witness may be questioned by or on behalf of the judgment debtor or by the court.

(7)

A hearing may from time to time be adjourned by the court to a time and place to be appointed.

Compare: 1947 No 16 s 84D

331 Application for financial assessment hearing

(1)

This section applies if a judgment creditor applies, in a form approved by the chief executive, for a hearing (a financial assessment hearing) for the judgment debtor or, if the judgment debtor is a body corporate, an officer of the judgment debtor to be questioned about the judgment debtor’s means for satisfying the judgment debt.

(2)

The court must issue a summons, in a form approved by the chief executive, requiring the judgment debtor or an officer of the judgment debtor to attend the hearing.

(3)

The court may also—

(a)

order any of the judgment debtor’s books or other documents to be produced at the hearing:

(b)

order that the hearing be held at a place other than in a court:

(c)

impose such other terms and conditions as the court thinks proper in respect of the hearing.

(4)

The summons must be served on the judgment debtor by a person referred to in section 390(3)(b).

(5)

The court may cancel a hearing at the request of the judgment creditor.

Compare: 1947 No 16 s 84E

332 Power to arrest judgment debtor or officer

(1)

This section applies if a summons issued under section 330 or 331 cannot be served on a judgment debtor.

(2)

This section also applies if—

(a)

a summons was served on a judgment debtor at least 3 working days, or any shorter period agreed under section 330(4A) or 333(1), before the date of the hearing to which the summons relates; and

(b)

the judgment debtor fails to appear in person at the hearing or at any subsequent adjournment of the hearing.

(3)

This section applies in relation to a judgment debtor that is a body corporate if—

(a)

a summons was served on an officer of the judgment debtor (the relevant officer) at least 3 working days, or any shorter period agreed under section 330(4A) or 333(1), before the date of the hearing to which the summons relates; and

(b)

an officer of the judgment debtor (whether or not the relevant officer) fails to appear in person at the hearing or at any subsequent adjournment of the hearing.

(4)

The summons must not be enforced by detention, but a Judge or Registrar may issue a warrant to arrest the judgment debtor or the relevant officer.

(5)

If the judgment debtor or the relevant officer is arrested under this section, the following provisions apply:

(a)

the judgment debtor or the relevant officer must be brought before a Judge or Registrar as soon as possible for the purpose of commencing or continuing the hearing:

(b)

the judgment debtor or relevant officer is bailable as of right:

(c)

section 168 of the Criminal Procedure Act 2011 and Parts 1 to 3 of the Bail Act 2000 apply, with any necessary modifications, as if an appearance at the hearing before a Judge or Registrar constituted part of the hearing of a charge, and as if references in those provisions to a court included references to a Judge or Registrar:

(d)

if the judgment debtor or relevant officer cannot practicably be brought before a Judge or Registrar, then a Police employee or bailiff may grant bail to the judgment debtor or relevant officer, and Parts 1 to 3 of the Bail Act 2000 apply, with any necessary modifications, as if the bail were granted by a Police employee under section 21(1) of that Act.

(6)

In this section, summons means—

(a)

a summons to attend a hearing under section 330:

(b)

a summons to attend a financial assessment hearing.

Compare: 1947 No 16 s 84EA

333 Financial assessment hearing

(1)

A financial assessment hearing must not be held until at least 3 working days, or any shorter period agreed by the judgment debtor, has passed after the date on which the summons was served or any shorter period agreed by the judgment debtor.

(2)

The judgment debtor or, if the judgment debtor is a body corporate, an officer of the judgment debtor must appear in person at a financial assessment hearing.

(3)

The court may require the judgment debtor or the officer and any witness to take an oath before giving evidence.

(4)

The judgment debtor may be represented at the hearing by a lawyer, who may question the judgment debtor or the officer and be heard on the matter of the judgment debtor’s means for satisfying the judgment debt.

(5)

The judgment debtor or the officer may be questioned by or on behalf of the judgment creditor or by the court.

(6)

Any witness may be questioned by or on behalf of the judgment creditor or the judgment debtor or by the court.

(7)

A financial assessment hearing may from time to time be adjourned by the court to a time and place to be appointed.

Compare: 1947 No 16 s 84EB

334 Registrar may exercise jurisdiction of court under sections 329, 330, 331, 333, 335, 337, and 343

The exercise of the jurisdiction of the court under sections 329, 330, 331, 333, 335, 337, and 343 may be exercised by a Registrar.

335 Orders by court following filing of financial statement, etc

(1)

This section applies if, after a judgment has been entered or an order made for the payment of money has been entered or made,—

(a)

a financial statement is filed in the court; or

(b)

the judgment debtor provides the court with information about the judgment debtor’s means for satisfying the judgment debt under section 329; or

(c)

a hearing under section 330 or a financial assessment hearing takes place.

(2)

The court may do any 1 or more of the following:

(a)

direct that 1 or more of the proceedings referred to in section 315 be commenced or continued (as the case may be), and direct that any steps be taken in such proceedings, and, for any such purpose, issue any warrant or summons or make any order:

(c)

order that the money owing under the judgment or order be paid in instalments:

(d)

stay any proceedings to enforce the judgment or order:

(e)

vary any order made under this Part relating to the enforcement of the judgment or order.

(3)

The court may do any of the things referred to in subsection (2) even though if

(a)

no application is made for the direction, order, stay, or variation in question; or

(b)

an application is made for a different direction, order, stay, or variation; or

(c)

no hearing takes place; or

(d)

in a case where a financial statement is filed in the court by 1 party, the other party has not had the opportunity to make representations to the court about the financial statement.

Compare: 1947 No 16 s 84EC

Attachment orders

336 Interpretation

In sections 337 to 343, unless the context otherwise requires,—

earnings period has the meaning given by section 338(b)

employer, in relation to a judgment debtor, includes—

(a)

a person by whom a retiring allowance or pension or other payment of a similar nature is payable to the judgment debtor:

(b)

the Accident Compensation Corporation in respect of weekly compensation payable to the judgment debtor under the Accident Compensation Act 2001:

(c)

the chief executive of the department for the time being responsible for the administration of the Social Security Act 1964 in respect of a benefit payable to the judgment debtor

salary or wages includes—

(a)

a retiring allowance or other payment of a similar nature:

(b)

a bonus or an incentive payment:

(c)

a payment of commission:

(d)

a payment in consideration of work performed under a contract for services:

(e)

all payments of weekly compensation made under the Accident Compensation Act 2001 by the Accident Compensation Corporation:

(f)

a benefit within the meaning of the Social Security Act 1964.

Compare: 1947 No 16 s 84F

337 Attachment orders

(1)

The court may make an attachment order to enforce a judgment or an order for the payment of money—

(a)

in the circumstances referred to in section 321(2); or

(b)

in the circumstances referred to in section 335(1); or

(c)

on the application of the judgment creditor or judgment debtor.

(2)

If an application is made under subsection (1)(c),—

(a)

the party who makes the application must serve a copy of it on the other party; and

(b)

the court may make the attachment order even though the other party has not had the opportunity to make representations to the court about the application.

(3)

If an attachment order is made, it must be served on the employer to whom the order relates, the judgment creditor, and the judgment debtor.

(4)

Except as otherwise ordered by the court, an attachment order takes effect when a copy of the order is served on the employer.

Compare: 1947 No 16 s 84G

338 Content of attachment orders

An attachment order must be in a form approved by the chief executive and must specify—

(a)

the employer to whom the order relates; and

(b)

whether deductions are to be made every week, fortnight, or month or by reference to some other period (the earnings period); and

(c)

the amount or percentage to be deducted from the judgment debtor’s salary or wages for the earnings period; and

(d)

the amount or percentage below which the net amount paid to the judgment debtor for the earnings period must not fall; and

(e)

the name and the address or bank account number of the person to whom the amounts deducted are to be paid; and

(f)

that the order is to remain in force until the judgment debt has been paid in full or, if the order is to remain in force for a fixed period, that period.

Compare: 1947 No 16 s 84H

339 Effect of attachment orders

(1)

An attachment order must direct that the money due and payable under the judgment or order being enforced is, by way of such amounts, and payable by reference in relation to such earnings period, as are specified in the attachment order, a charge on any salary or wages that from time to time while the attachment order is in force become due and payable by the employer to the judgment debtor.

(2)

The charge created—

(a)

accrues from earnings period to earnings period, and on the day of the earnings period specified in the order; and

(b)

attaches to all salary or wages that become due by the employer to the judgment debtor at any time while the attachment order is in force, whether or not the contract of employment in respect of which the salary or wages so become due existed at the date of the attachment order; and

(c)

is subject to any charge created by an attachment order under the Family Proceedings Act 1980 or the Summary Proceedings Act 1957 and to any item referred to in subsection (5)(a) and (b) (whether created, issued, or authorised before or after the date on which the order referred to in subsection (1) was made); but

(d)

prevails over and has priority to any assignment or charge created by the judgment debtor (whether before or after the making of the attachment order under this Part) and so that the attachment order has the same effect as if no such assignment or charge had been made or created by the judgment debtor.

(3)

Despite subsections (1) and (2), no attachment order is to operate so that, when its effect is considered either alone or with the effect of any item referred to in subsection (5), the net amount paid to a judgment debtor for an earnings period is below the protected earnings rate for the earnings period and, where necessary, the amount to be deducted from the judgment debtor’s salary or wages for the earnings period is treated as being reduced or cancelled accordingly.

(4)

Nothing in section 84 of the Social Security Act 1964 applies to an attachment order.

(5)

The items are—

(a)

a deduction notice under the Child Support Act 1991, the Family Proceedings Act 1980, the Social Security Act 1964, or the Tax Administration Act 1994:

(b)

a deduction for the recovery of payments under section 86 of the Social Security Act 1964:

(c)

a charge created by an attachment order under this or any other Act.

(6)

In this section,—

net earnings, in relation to an earnings period, means the balance left after deducting from the judgment debtor’s salary or wages for the earnings period the amount of tax required to be withheld or deducted in accordance with the PAYE rules of the Income Tax Act 2007 if the salary or wages were are the only salary or wages paid to the judgment debtor by the employer for the earnings period

protected earnings rate, in relation to an earnings period, means the higher of—

(a)

60% of net earnings for the earnings period; and

(b)

the amount or percentage referred to in section 338(d).

Compare: 1947 No 16 s 84I

340 Liability of employer

(1)

Subject to section 339(3), as long as an attachment order remains in force, the employer to whom it relates must from time to time, whenever any salary and wages are due and payable by the employer to the judgment debtor,—

(a)

deduct from that money a sufficient amount to satisfy the charge on the money so far as the same charge has accrued before the day on which the salary or wages becomes due and payable; and

(b)

not later than the 20th day of the next month after the month in which the deduction is made, pay the amount so deducted to the person specified in the attachment order.

(2)

All amounts so deducted and paid must be taken to have been paid by the employer in satisfaction of the salary or wages payable by the employer to the judgment debtor.

(3)

All amounts so deducted must be taken to have been paid by the judgment debtor in satisfaction of the judgment debtor’s liability to pay the judgment debt.

(4)

If the judgment debtor gives notice of resignation, or is given notice of dismissal, from the employment of the employer to whom the attachment order relates, the employer must, within 5 working days after receiving or giving the notice, notify the person referred to in section 338(e) of the date of the last day of the judgment debtor’s employment.

(5)

If the employer to whom the attachment order relates ceases to pay salary or wages to the judgment debtor for a reason other than the judgment debtor’s dismissal or resignation from the employment of the employer, the employer must, within 5 working days after ceasing to pay the salary or wages, notify the person referred to in section 338(e) of the day on which the salary or wages ceased to be paid.

(6)

Where the employer makes default in the payment of any money in satisfaction of a charge created by an attachment order, that money becomes a debt due by the employer to the judgment creditor and may be recovered by the judgment creditor by action in any court of competent jurisdiction.

(7)

An employer who fails without reasonable excuse to comply with subsection (1)(a) or (b) commits an offence and is liable on conviction to a fine not exceeding $1,000.

Compare: 1947 No 16 s 84J

341 Wrongful treatment of employee

An employer commits an offence, and is liable on conviction to a fine not exceeding $1,000, who dismisses any employee or alters any employee’s position in the employer’s business or undertaking to the employee’s prejudice by reason of—

(a)

the employee having been ordered to pay money owing under 1 or more judgments or orders imposed by the District Court or the High Court for the payment of an amount of money; or

(b)

an attachment order having been served on the employer; or

(c)

the employer becoming aware that an attachment order is being made or has been made in respect of the employee.

Compare: 1947 No 16 s 84K

342 Extent to which attachment orders bind the Crown

(1)

In this section,—

employing department means—

(a)

a department of State in which a person is employed; and

(b)

in relation to a person to whom any retiring allowance or pension or other payment of a similar nature is payable—

(i)

out of the Government Superannuation Fund, the Government Superannuation Fund Authority:

(ii)

out of the National Provident Fund, the Board of Trustees of the National Provident Fund

servant of the Crown

(a)

means a person in the service of Her Majesty in respect of the Government of New Zealand:

(b)

includes a person in temporary or casual service:

(c)

does not include a person in honorary service:

(d)

includes any person serving in any of the New Zealand Armed Forces:

(e)

includes a person to whom any retiring allowance or pension or other payment of a similar nature is payable out of the Government Superannuation Fund or the National Provident Fund.

(2)

Sections 337 to 341 and 343 bind the Crown to the extent of and subject to subsections (3) and (4).

(3)

If the judgment debtor is a servant of the Crown, an attachment order may be made against the Crown as employer.

(4)

Where the judgment debtor is entitled to a benefit within the meaning of the Social Security Act 1964, an attachment order may be made against the chief executive of the department for the time being responsible for the administration of that Act, and—

(a)

service of the order must be effected—

(i)

by leaving a copy of the order at, or sending a copy of the order by post to, either the district office of the department nearest to the judgment debtor’s place of residence or an address notified by the chief executive of the department to the chief executive; or

(ii)

by sending the order by email or other electronic means to an email address notified by the chief executive of the department to the chief executive of the Ministry of Justice; and

(b)

section 341 does not apply.

Compare: 1947 No 16 s 84L

343 Variation, suspension, and discharge of attachment orders

(1)

A judgment creditor or judgment debtor may apply to the court at any time for an attachment order to be varied, suspended, or discharged.

(2)

The party who makes an application under subsection (1) must serve a copy of the application on the other party.

(3)

If an application under subsection (1) is made, the court may vary, suspend, or discharge the attachment order if good cause is shown to the satisfaction of the court why the order should be so varied, suspended, or discharged.

(4)

The court may vary, suspend, or discharge the attachment order even though if the other party has not had the opportunity to make representations to the court about the application.

(5)

If an attachment order is varied, suspended, or discharged under subsection (3), notice of the variation, suspension, or discharge must be served on the employer to whom the order relates, the judgment creditor, and the judgment debtor.

(6)

A variation, suspension, or discharge of an attachment order takes effect when the notice referred to in subsection (5) is served on the employer, unless (in the case of a discharge) subsection (7) applies.

(7)

An attachment order may also be discharged at any time by written notice (which may be given by email or other electronic means) from the judgment creditor to the employer to whom the order relates, and the discharge takes effect when the notice is given to the employer.

Compare: 1947 No 16 s 84M

344 Review of Registrar’s decision

(1)

Any person affected by any order or direction made by a Registrar under section 332, 335, 337, 343, or 347 may apply to a Judge for a review of the order or direction.

(2)

However, a judgment creditor may apply for a review of an order or a direction made by a Registrar under section 335 or section 337 only if a financial assessment hearing that was attended by the judgment creditor or his or her representative has taken place.

(3)

An application under subsection (1) must be made within 15 working days of the making of the order or direction, or within the further time that the Judge, on application, may allow.

(4)

On receiving an application under subsection (1), the Judge may order that the order or direction under review is suspended pending the review.

(5)

On review, the Judge may confirm, rescind, or vary the Registrar’s order or direction, and the order or direction has effect, or ceases to have effect, as the case may be.

Compare: 1947 No 16 s 84N

Contempt of enforcement proceedings

345 Contempt of enforcement proceedings

(1)

No order may be made under subsection (3) unless any of the circumstances described in subsection (2) apply and the court is satisfied beyond reasonable doubt that—

(a)

the judgment debtor has sufficient means to pay the judgment debt but refuses to do so; and

(b)

all other methods of enforcing the judgment have been considered or tried and are inappropriate or have been unsuccessful.

(2)

The circumstances referred to in subsection (1) are as follows:

(a)

a financial statement has been filed in court:

(b)

the court has been provided with information about the judgment debtor’s means for satisfying the judgment debt under section 329:

(c)

a hearing under section 330 or a financial assessment hearing has taken place.

(3)

The court may, on the application of a judgment creditor, order the judgment debtor to do community work, not exceeding 200 hours, as the court thinks fit. do either or both of the following:

(a)

order the judgment debtor to do community work, not exceeding 200 hours, as the court thinks fit:

(b)

impose any of the orders referred to in section 315, 318, or 319, or do any of the things referred to in section 335(2).

(4)

Alternatively, the court may impose any of the orders referred to in section 315, 318, or 319 or do any of the things referred to in section 335(2) instead of or in addition to ordering the judgment debtor to do community work under subsection (3).

(5)

An order made under subsection (3) has effect as if it were a sentence of community work, and the relevant provisions of Part 2 of the Sentencing Act 2002, with any necessary modifications, apply accordingly.

(6)

If the District Court, acting under this section, orders a judgment debtor to do community work, the judgment debtor has the same right of appeal to the High Court against the order as the judgment debtor would have had if the judgment debtor had been convicted and sentenced by the District Court before a Judge alone in relation to a charge.

(7)

An order made under subsection (3) does not operate to extinguish or affect the liability of the judgment debtor to pay the judgment debt.

(8)

A proceeding under this section may from time to time be adjourned by the court to a time and place to be appointed.

Compare: 1947 No 16 s 84O

346 Process for dealing with application for contempt of enforcement proceedings

(1)

On receipt of an application under section 345(3), the Registrar must—

(a)

appoint a time and place for the hearing of the application if satisfied, on the basis of information provided with the application, that the judgment debtor has sufficient means to pay the judgment debt but refuses to do so; or

(b)

if not so satisfied, refer the application to a Judge.

(2)

On the referral of an application under subsection (1)(b), the Judge must—

(a)

deal with the application on the papers; and

(b)

consider whether he or she is satisfied, on the basis of information provided with the application, that the judgment debtor has sufficient means to pay the judgment debt but refuses to do so.

(3)

If the Judge is so satisfied, he or she must direct the Registrar to appoint a time and place for the hearing of the application.

(4)

If the Judge is not so satisfied, he or she must decline the application.

(5)

If the Registrar appoints a time and place for the hearing of the application under subsection (1)(a) or (3), the judgment debtor must be served with a copy of the application, and a notice of the time and place so appointed, by a person referred to in section 390(3)(c).

(6)

The Registrar must notify the judgment creditor of the time and place so appointed.

(7)

If the application is declined under subsection (4), the Registrar must notify the judgment creditor that the application has been declined.

Compare: 1947 No 16 s 84OA

347 Warrant to arrest may be issued if judgment debtor cannot be served or fails to appear at hearing

(1)

If a copy of the application cannot be served on the judgment debtor under section 346(5), or if the judgment debtor fails to appear at the hearing of the application (or the resumption of the hearing, in the case of an adjourned hearing), a Judge or Registrar may issue a warrant to arrest the judgment debtor and bring the judgment debtor before the court as soon as possible.

(2)

A warrant under subsection (1) ceases to have effect if the judgment debtor pays, or causes to be paid, the amount due under the judgment debt.

(3)

If a judgment debtor is arrested under a warrant issued under subsection (1), the following provisions apply:

(a)

the judgment debtor must be brought before a Judge or, if a Judge is not available, the Registrar:

(b)

if the judgment debtor is brought before the Registrar, the Registrar must appoint a time and place for the judgment debtor to appear before a Judge for the purpose of commencing or continuing the hearing:

(c)

the judgment debtor is bailable as of right:

(d)

section 168 of the Criminal Procedure Act 2011 and Parts 1 to 3 of the Bail Act 2000 apply, with any necessary modifications that may be necessary, as if the hearing of the application referred to in subsection (1) were the hearing of a charge:

(e)

if the judgment debtor cannot practicably be brought immediately before a Judge or Registrar, then any Police employee or any bailiff may grant bail to the judgment debtor, and Parts 1 to 3 of the Bail Act 2000 apply, with any necessary modifications, as if the bail were granted by a Police employee under section 21(1) of that Act.

Compare: 1947 No 16 s 84OB

348 Judgment debtor doing community work is discharged on payment

(1)

If a judgment debtor doing community work under an order made under section 345 pays, or causes to be paid, the amount due in respect of the judgment debt,—

(a)

the Registrar must notify a probation officer that the payment has been made; and

(b)

the probation officer, on notification from the Registrar, must notify the judgment debtor that he or she is no longer required to report for community work.

(2)

Subsection (1)(b) does not apply if there is some other reason for the judgment debtor being required to report for community work.

Compare: 1947 No 16 s 84Q

Warrants to seize property

349 Warrant to seize property

(1)

A warrant to seize property is a warrant that requires the bailiff or constable to whom it is directed to seize and sell goods of a judgment debtor for payment of the following debts:

(a)

the judgment debt, or so much of it that remains unpaid; and

(b)

the costs of executing the warrant; and

(c)

the costs of previous proceedings (if any) for enforcement of the judgment debt.

(2)

By the warrant, the bailiff or constable is authorised to seize—

(a)

the goods of the judgment debtor, except—

(i)

his or her tools of trade to a value not exceeding $5,000; and

(ii)

his or her necessary household furniture and effects, including clothing for the judgment debtor and his or her family, to a value not exceeding $10,000; and

(b)

money, bank notes, and securities (that is, bills of exchange, promissory notes, bonds, specialties, or other securities for money).

(3)

The warrant must be in a form approved by the chief executive.

(4)

The Governor-General may from time to time, by Order in Council, amend subsection (2) by increasing any amount specified in that subsection.

Compare: 1947 No 16 s 85

350 Immobilisation of motor vehicles

(1)

A bailiff or constable executing a warrant to seize property may, while seizing, or instead of seizing, a motor vehicle, immobilise the vehicle by attaching to it any device designed for the purpose, pending payment of the unpaid amount.

(2)

A vehicle may not be immobilised under subsection (1) unless, at the time of its immobilisation, the vehicle—

(a)

is on private property; or

(b)

is in a public place and the bailiff or constable is satisfied that immobilising the vehicle will not cause undue inconvenience to other persons.

(3)

If a motor vehicle is immobilised under this section, a bailiff or constable—

(a)

may seize the vehicle at any time:

(b)

on the direction of the Registrar, must seize the vehicle.

(4)

A person commits an offence if, without reasonable excuse, the person—

(a)

tampers with, removes, or attempts to remove a device attached to a motor vehicle under subsection (1); or

(b)

removes, or attempts to remove,—

(i)

a motor vehicle to which a device is, or has been, attached under subsection (1); or

(ii)

any part of that vehicle; or

(iii)

any other property from that vehicle.

(5)

A person who commits an offence under subsection (4) is liable on conviction to a fine not exceeding $1,000.

Compare: 1947 No 16 s 85A

351 Disposal of securities seized

(1)

The bailiff who seizes securities referred to in section 349(2)(b) must deliver them to the Registrar.

(2)

The Registrar must hold the securities for the benefit of the enforcement creditor as security for the enforcement debtor’s debts under referred to in section 349(1).

(3)

The execution creditor may sue for the money secured by or payable under the securities on their due date and may sue—

(a)

in the name of the enforcement debtor; or

(b)

in the name of any person in whose name the person against whom execution has issued might have sued.

Compare: 1947 No 16 s 86

352 Offence of rescuing goods seized

(1)

A person who rescues or attempts to rescue goods seized in execution under a warrant to seize property commits an offence and is liable on conviction to a fine not exceeding $300.

(2)

A bailiff or a constable may arrest that the person referred to in subsection (1) with or without a warrant.

Compare: 1947 No 16 s 87

Sale of goods seized under warrant to seize property

353 Period to elapse before sale

(1)

Goods seized under a warrant to seize property must not be sold before 5 working days after the date of seizure have elapsed.

(2)

Subsection (1) does not apply if—

(a)

the goods are perishable; or

(b)

the owner of the goods makes a written request (which may be by email or other electronic means) for earlier sale.

Compare: 1947 No 16 s 88

354 Goods must be sold by public auction unless court orders otherwise

(1)

Goods seized under a warrant to seize property must be sold by public auction unless a court orders otherwise.

(2)

A bailiff who is authorised to execute a warrant to seize property may, if he or she first obtains the Registrar’s written approval (which may be given by email or other electronic means), sell goods seized under the warrant without the necessity of taking out an auctioneer’s licence.

(3)

Subsection (2) overrides any enactment or rule of law to the contrary.

(4)

The jurisdiction of a court under this section may be exercised by the Registrar.

Compare: 1947 No 16 s 89

355 Purchaser from bailiff acquires goods free of all ownership and other proprietary interests

(1)

A person who purchases from a bailiff goods seized under a warrant to seize property, and who purchases without a claimant to the goods having paid a deposit or provided security in accordance with section 360(2), acquires good title to the goods free of all ownership interests and other proprietary interests held in them before the sale.

(2)

This section is subject to—

(a)

sections 108 to 112 of the Insolvency Act 2006; and

(b)

sections 251 and 252 of the Companies Act 1993.

Compare: 1947 No 16 s 90(1)(a), (3)

356 Immunity of bailiff who sells without notice of claim to goods

(1)

Except under subsection (2), no person has any claim against a bailiff or any person acting under a bailiff’s authority (an agent) for the sale of goods seized under a warrant to seize property or for the payment of the proceeds of the sale.

(2)

The immunity of a bailiff or agent set out in subsection (1) does not apply if the bailiff or agent, before the goods were sold or the proceeds paid, knew or ought reasonably to have known that the goods were not the property of the judgment debtor.

(3)

Nothing in this section affects the right of a person who proves that the person had an ownership or other proprietary interest in the goods at the time of sale to a remedy against any person other than the bailiff.

Compare: 1947 No 16 s 90(1)(b), (2)

357 Goods seized under warrant to seize property that are subject to security interest

(1)

This section applies if a third person claims a security interest in goods that have been seized under a warrant to seize property.

(2)

The court may order the sale of all or part of the goods on terms as to the application of the proceeds of sale to all or part of the secured debt or otherwise as the court thinks fit.

(3)

The purchaser of goods sold under this section obtains good title to the property free of all ownership interests and other proprietary interests held in the property before that sale.

Compare: 1947 No 16 s 91

358 Personal property securities register to be checked

(1)

If goods are seized under a warrant to seize property, the Registrar must, on the next working day after the goods are seized, check whether a financing statement that relates to the goods has been registered on the personal property securities register kept under the Personal Property Securities Act 1999.

(2)

If a financing statement has been registered, the bailiff must promptly notify the person named as the secured party in the financing statement of the following:

(a)

that the court may, under section 354, sell the goods after the expiration of 5 working days from the date of seizure if the judgment debt remains unpaid and no claim has been made in respect of the goods by a person other than the judgment debtor:

(b)

the rights that may be available to the person under sections 360 and 361.

Compare: 1947 No 16 s 91A

Claims in respect of goods seized under warrant to seize property

359 Priority of High Court and District Court executions

(1)

This section determines priority as between a sale order issued from the High Court and a warrant to seize property against the goods of the same person issued under this Part.

(2)

The right to the goods seized must be determined according to which of the following occurred first:

(a)

delivery to the Sheriff of the sale order to be executed:

(b)

delivery to the Registrar of the application for the warrant to seize property.

(3)

On request by the bailiff to whom the warrant to seize property is directed, the Sheriff must inform the bailiff in a notice, authenticated by the Sheriff, of the precise time of delivery of the sale order.

(4)

On request by the Sheriff, the bailiff to whom the warrant to seize property is directed must produce the warrant to any Sheriff’s officer.

(5)

The time recorded in a notice given under subsection (3), and the time endorsed on the warrant as the time of application to the Registrar, are conclusive for any Sheriff or bailiff to act in reliance on the priority so determined.

Compare: 1947 No 16 s 92

360 Sale of goods subject to third party claim

(1)

Unless a claimant to or in respect of goods seized under a warrant to seize property complies with subsection (2), the bailiff must—

(a)

sell the goods as if no claim had been made; and

(b)

pay the proceeds into court pending a decision on the claim.

(2)

To halt the sale of the goods under subsection (1), a claimant may—

(a)

deposit with the bailiff—

(i)

the amount of the value of the goods; or

(ii)

the amount that the bailiff may charge for the custody of the goods pending a decision on the claim; or

(b)

give the bailiff, in the manner prescribed in the rules, security for the value of the goods.

(3)

The bailiff must pay the amount of the value of the goods deposited under subsection (2)(a)(i) into court pending a decision on the claim.

(4)

If the amount of the value of the goods is disputed, that amount must be fixed by appraisement in the prescribed manner.

(5)

The purchaser of goods sold under this section obtains good title to the property free of all ownership interests and other proprietary interests held in the property before that sale.

Compare: 1947 No 16 s 93

361 Third party claim process

(1)

If a claim is made under section 360 to or in respect of goods seized under a warrant to seize property, the bailiff may obtain a summons from the Registrar requiring the execution creditor and the claimant to appear before the court.

(2)

If a claim is made under section 360 in respect of property that is the subject of a financing statement registered on the personal property securities register kept under the Personal Property Securities Act 1999, the bailiff must obtain from the Registrar a summons requiring the claimant to appear before the court.

(3)

The bailiff may obtain the summons, either before or after the return of the warrant, and whether or not a proceeding has been brought against the bailiff in respect of the seizure.

(4)

On the issue of the summons, any proceeding brought in the District Court or other court in respect of the claim of any damage arising out of the execution of the warrant is stayed.

(5)

On hearing the summons, the court must—

(a)

decide the claim; and

(b)

decide any claim by 1 or more of the parties against the bailiff for damages arising out of the execution of the warrant; and

(c)

make an order as to costs as the court thinks fit.

Compare: 1947 No 16 s 94

Garnishee proceedings

362 Garnishee proceedings

A person (A) who has obtained a judgment or an order for the payment of money may take a proceeding (a garnishee proceeding) under the rules to obtain—

(a)

the payment to A of a debt owing or accruing to the judgment debtor from another person (B) and the costs of bringing the garnishee proceeding; or

(b)

the payment to A of so much of the debt as will meet the amount of the judgment or order and the costs of bringing the garnishee proceeding.

Compare: 1947 No 16 s 96(1)

363 Money held on deposit or in account

For the purposes of a garnishee proceeding, a debt owing or accruing to a judgment debtor (D) and, subject to section 364 and the rules, accordingly attachable, includes money that—

(a)

stands to D’s credit with any person (including a bank); and

(b)

is held on deposit with that person or held by that person in a current or other account (including a deposit account).

Compare: 1947 No 16 s 96(2)

364 Application of section 363

(1)

Section 363 applies whether or not any of the following conditions of the deposit or account has been satisfied:

(a)

a condition that notice must be given before any money can be withdrawn; or:

(b)

a condition that a demand for payment must be made; or:

(c)

a condition that a personal application must be made before any money can be withdrawn; or:

(d)

subject to subsection (2), any other condition.

(2)

Section 363 does not apply if it is a condition of the deposit or account that a deposit book, deposit receipt, or other similar document must be produced before any money can be withdrawn and that condition has not been satisfied.

365 Liability to deliver or disclose deposit book, deposit receipt, etc

The rules may—

(a)

require a person who is in possession of a deposit book, a deposit receipt, or any other similar document relating to a deposit or an account of a judgment debtor to deliver it to the court:

(b)

require a person who knows the location of a deposit book, a deposit receipt, or any other similar document relating to a deposit or an account of a judgment debtor to disclose it to the court.

Compare: 1947 No 16 s 96(3)

Charging orders

366 Charging orders

(1)

A person who has obtained a judgment or an order for the payment of money may apply to the court in accordance with the rules for a charging order.

(2)

The court may make a charging order in respect of any of the following property:

(a)

any estate, right, title, or interest in possession, remainder, reversion, or expectancy, and whether vested or contingent, in any land held by the judgment debtor in the judgment debtor’s own name:

(b)

any right or interest of the judgment debtor in any partnership:

(c)

any shares held by the judgment debtor in any company incorporated in New Zealand or having an office in New Zealand in which transfers of shares may be registered:

(d)

any estate, right, or interest in possession, remainder, reversion, or expectancy, and whether vested or contingent, in any land, or in any money, shares, or other chattels held under or by virtue of any express or implied trust for the judgment debtor.

(3)

A charging order must specify the property charged with sufficient detail to identify it.

Compare: 1947 No 16 s 96A(1), (1A), (3)

367 Variation or discharge of charging order

(1)

The court may vary or discharge a charging order at any time.

(2)

An order discharging or varying a charging order may be registered or recorded in the same manner as the charging order.

(3)

There must be no charge fee for the registration or recording of the discharge or variation of a charging order.

Compare: 1947 No 16 s 96A(4), (7)

368 Effect of charging order

A charging order has the following effect (subject, in the case of a charging order over a registered estate or interest in any land, to registration under section 370):

(a)

it charges the estate, right, title, or interest of the judgment debtor in the property described in the order with payment of the amount for which the judgment creditor has obtained judgment:

(b)

except with the leave of the court or in accordance with the rules, it restrains the person served with it—

(i)

from making, or concurring in making, or permitting any conveyance, transfer, assignment, or disposition of any estate, right, or interest, or of any share in a partnership or company, of the judgment debtor; or

(ii)

from paying over any income, interest, dividends, bonus, profits, or other money due or accruing due to the judgment debtor.

Compare: 1947 No 16 s 96A(2)(a), (b)

369 Charging order in respect of land expires after 2 years

(1)

A charging order in respect of land expires after 2 years from the date of the order.

(2)

However, the order expires earlier than 2 years from the date of the order if, within that 2-year period, an instrument of transfer or a deed of conveyance or assignment is registered following the execution of a sale order.

(2)

A charging order expires on the earlier of the following dates:

(a)

the date that is the end of the period that is 2 years after the date on which the order was made:

(b)

when an instrument of transfer or deed of conveyance or assignment is registered following the execution of a sale order.

(3)

Despite subsection (1), the court may extend the period for which a charging order is in force beyond the 2-year period.

Compare: 1947 No 16 s 96A(2)(d)

370 Registration of charging order over land or mining privilege

(1)

This section applies when a charging order is made in respect of the registered estate or interest of the judgment debtor in land.

(2)

The order may, on receipt of a duplicate or copy of the order under the seal of the court,—

(a)

be registered by the Registrar-General of Land, if the title to the land is under the Land Transfer Act 1952; or

(b)

be registered by the appropriate Registrar of Deeds, if the title to the land is not under the Land Transfer Act 1952; or

(c)

be recorded, in the case of a mining privilege under the Mining Act 1971, by the Registrar-General of Land.

(3)

There must be no charge for the registration or recording of the charging order.

Compare: 1947 No 16 s 96A(5), (6)

371 Removal of charging order into High Court

(1)

A charging order may be removed into the High Court in accordance with section 302, which applies with any necessary modifications.

(2)

A charging order removed into the High Court is enforceable in the same way as if it had been issued by that court.

Compare: 1947 No 16 s 96A(2)(c), (8)

Order or warrant to detain person in prison

372 Issue and execution of order or warrant to detain in prison

(1)

This section applies when, under this Part or the rules, the court makes an order or issues a warrant for the detention of a person in prison.

(2)

The order or warrant must be directed to a bailiff or a constable.

(3)

On the making of the order or the issue of the warrant,—

(a)

the person to whom it is directed is authorised to detain the person to be detained; and

(b)

it is the duty of every constable to assist in the detention of that person.

Compare: 1947 No 16 s 97(1)

373 Form of warrant to detain

A warrant to detain a person in prison must contain the information required by the rules.

374 Person to be detained in prison

(1)

A person detained in prison under an order made or a warrant issued under section 372 must be detained in a prison established under, or deemed to be established under, the Corrections Act 2004.

(2)

The prison manager of the prison specified in the order or warrant must detain the person in question in the prison until that person is lawfully discharged.

Compare: 1947 No 16 s 97(2)

375 Power of Judge to order discharge

(1)

A Judge may at any time order the discharge of a person detained under section 374 if the Judge considers for any reason that the person should be discharged.

(2)

The order may be made on the terms, if any, that the Judge thinks fit, including a term that the person may be further detained if the terms of discharge are not complied with.

Compare: 1947 No 16 s 98

Warrant for recovery of land

376 Warrant for recovery of land

(1)

The court may issue a warrant (a warrant for the recovery of land) authorising the bailiff or the constable to whom it is directed to give possession of the land to the person named in the warrant.

(2)

In executing the warrant, the bailiff or constable—

(a)

may take possession of the land; and

(b)

may use force if necessary in obtaining entry; and

(c)

may be assisted by others as the bailiff or constable thinks necessary; and

(d)

may give possession to the person named in the warrant; but

(e)

is not required to remove goods or chattels from premises on the land.

Compare: 1947 No 16 s 99

377 Time for executing warrant of for recovery of land

A bailiff or a constable to whom a warrant for the recovery of land is directed may execute the warrant only at a time that is between 9 am and 4 pm.

Compare: 1947 No 16 s 99(1)

378 Effect of possession given under warrant for recovery of land

(1)

The person to whom possession is given in accordance with a warrant for the recovery of land holds the land free of any tenancy.

(2)

The person (A) from whom possession is taken in accordance with a warrant for the recovery of land, and any person claiming through A, is not entitled to any relief for so long as the judgment or order under which the warrant was issued has not been reversed.

Compare: 1947 No 16 s 99(1)

379 Irregularity or informality in execution of warrant

(1)

A person (A) who applies for the issue of a warrant for the recovery of land and is lawfully entitled to possession of the land at the date of issue of the warrant is not liable as a trespasser by reason only of any irregularity or informality in the execution of the warrant.

(2)

A person aggrieved by an irregularity or informality in the execution of a warrant for the recovery of land may sue A only for special damage, and, if the special damage proved is not more than $30, the person is not entitled to costs, unless the court orders otherwise.

(3)

In subsection (1), A includes A’s agent or another person acting on A’s behalf.

Compare: 1947 No 16 s 100

380 Person illegally obtaining warrant liable for trespass

A person who applies for the issue of a warrant for the recovery of land and is not lawfully entitled to the possession of the land at the date of issue of the warrant commits a trespass against the tenant or occupier of the land, even without execution of the warrant.

Compare: 1947 No 16 s 101(1)

381 Immunity of Judge, etc, when warrant illegally obtained

No proceeding or action may be taken against any of the following persons by reason only that a warrant for the recovery of land was issued on the application of a person who at the date of issue was not lawfully entitled to possession of the land:

(a)

the Judge who made the order for the issue of the warrant:

(ab)

the Registrar who issued the warrant:

(b)

the bailiff or the constable who executed the warrant.

Compare: 1947 No 16 s 101(3)

382 Execution of warrant may be stayed on giving bond

(1)

The execution of a warrant for the recovery of land must be stayed if the tenant or occupier of the land (A) gives a bond to the landlord in accordance with this section.

(2)

The bond must—

(a)

bind A to bring a proceeding for trespass against the person to whom the warrant was issued (B); and

(b)

bind A to bring the proceeding without delay; and

(c)

bind A to pay all the costs of the proceeding if unsuccessful; and

(d)

secure an amount fixed by the court that the court considers reasonable, having regard to the value of the land and the probable costs of the proceeding; and

(e)

be executed by 2 sureties approved by the court; and

(f)

be approved by the court; and

(g)

be prepared at A’s expense.

(3)

For the purposes of subsection (2)(c), the proceeding is unsuccessful if—

(a)

judgment is given for B; or

(b)

A discontinues the proceeding; or

(c)

A fails to prosecute the proceeding without delay.

(4)

B may sue on the bond if—

(a)

the bond is forfeited; or

(b)

the Judge in A’s proceeding for trespass does not endorse on the record that the conditions of the bond have been fulfilled.

(5)

In a proceeding by B suing on the bond, the court may order such relief to the parties to the bond as it thinks just, and the order has the nature and effect of voiding the bond.

Compare: 1947 No 16 s 102(1), (3)

383 Effect of judgment for tenant or occupier in proceeding for trespass

If a tenant or an occupier of land (A) obtains judgment in a proceeding for trespass when the execution of a warrant for the recovery of land has been stayed,—

(a)

the judgment supersedes the warrant; and

(b)

A is entitled to costs.

Compare: 1947 No 16 s 102(2)

Recovery of chattels

384 Warrant for recovery of chattels

(1)

The court may issue a warrant for the recovery of chattels on the application of a person who has obtained a judgment or an order for the recovery of specific chattels.

(2)

The warrant must require the bailiff or the constable to whom it is directed to demand and seize the chattels referred to in the warrant, if they can be found by the bailiff or constable, and to deliver them to the person named in the warrant.

Compare: 1947 No 16 s 103

385 Further proceedings if chattels not recovered

If chattels are not recovered on the execution of a warrant for their recovery,—

(a)

the court may make an order or issue a warrant for detention in prison of the person named for a period not exceeding 1 month; and

(b)

whether or not it makes an order or issues a warrant under paragraph (a), the court may issue a warrant to seize property to the value of the chattels as assessed as, which is assessed in the manner that the court directs.

Compare: 1947 No 16 s 104

Liability and protection of officers

386 Neglect by bailiffs

(1)

On the application of a person aggrieved, the court may order a bailiff to pay that person damages if the opportunity of executing a warrant to seize property is lost through the fault of the bailiff or a person acting under his or her authority.

(2)

The damages ordered must not exceed the value of the chattels as assessed as, which is assessed in the manner that the court directs.

Compare: 1947 No 16 s 105

387 Liability of court officer for irregularity or informality in execution of warrant

(1)

An officer of the court who executes a warrant, and the person who applied for the issue of the warrant, are not liable as a trespassers by reason only of any irregularity or informality in—

(a)

any proceeding on which the validity of the warrant depends; or

(b)

the form of the warrant; or

(c)

the execution of the warrant.

(2)

A person aggrieved by an irregularity or informality in the execution of the warrant may sue only for special damage, and, if the special damage proved is not more than $30, the person is not entitled to costs, unless the court orders otherwise.

Compare: 1947 No 16 s 106

388 Liability of bailiff acting under warrant

(1)

No proceeding may be brought against a bailiff for anything done under a warrant issued under this Part, unless the conditions set out in subsection (2) are satisfied.

(2)

The conditions are as follows:

(a)

the intended plaintiff (P), or P’s lawyer or agent, has delivered to the office of the court a notice to produce the warrant authenticated by P or P’s lawyer or agent; and

(b)

the bailiff has failed to comply with the notice within 5 working days after the notice is received.

(3)

If a proceeding is commenced against a bailiff where the conditions in subsection (2) have been satisfied,—

(a)

judgment must be given for the bailiff if the warrant is produced or proved at trial, despite any defect of jurisdiction or other irregularity in the warrant; but

(b)

the officer who issued the warrant may be joined as a defendant in the proceeding.

(4)

If the plaintiff obtains judgment against the officer joined under subsection (3)(b), the plaintiff may recover from that officer the costs that the plaintiff is liable to pay to the bailiff.

Compare: 1947 No 16 s 107

389 Warrant is proof of court’s authority

In any proceeding against a person for anything done under this Part, the production of the warrant of the court is sufficient proof of the authority of the court previous to the issue of the warrant.

Compare: 1947 No 16 s 108

Service

390 Service of documents under this Part

(1)

If a person is required to serve a document under this Part, the requirement may be met in any of the following ways:

(a)

by—

(i)

delivering the document to the recipient or bringing it to the recipient’s notice if the recipient refuses to accept it; or

(ii)

leaving the document for the recipient at the recipient’s place of residence with another person who appears to be of or over the age of 14 years; or

(iii)

leaving the document for the recipient at the recipient’s place of business or place of work with another person:

(b)

by sending the document to the recipient by prepaid post addressed to the recipient’s last known place of residence or business:

(c)

if the recipient has a known electronic address, by sending it to the recipient at that address in electronic form:

(d)

by compliance with a means of service prescribed by regulations made under this Act.

(2)

For recipients to whom section 391 applies, subsection (1) is modified to the extent provided by that section.

(3)

Despite subsection (1), the following documents must be served in accordance with subsection (1)(a) or, where applicable, section 391(2)(b) or (4):

(a)

a summons issued under section 330, which must be served by an authorised process server:

(b)

a summons issued under section 331, which must be served by or on behalf of the judgment creditor or by an authorised process server:

(c)

a copy of the application and notice of the time and place appointed for the hearing of the application that is required to be served on the judgment debtor under section 346(5), which must be served by or on behalf of the judgment creditor or by an authorised process server.

(4)

This section is subject to section 342(4)(a).

(5)

In this section and in section 391,—

authorised process server means a person who is—

(a)

a constable; or

(b)

a Police employee authorised by the Commissioner of Police to serve documents under this Part; or

(c)

an officer of the court; or

(d)

a person or a member of a class of persons authorised by a Judge or Registrar to serve documents either generally or in respect of a particular case or class of case; or

(e)

an officer or employee of a corporation that is authorised by the Secretary for Justice to serve documents under this Part:; or

(f)

an individual who is authorised by the Secretary for Justice to serve documents under this Part

officer, in relation to a body corporate or Crown organisation, includes a person involved in the decision making or management of the body or organisation

recipient means the person required to be served

serve, in relation to a document,—

(a)

includes giving the document to a person; but

(b)

does not include filing the document in a court under rules of court.

Compare: 1947 No 16 s 108A

391 Service provisions modified in special cases

(1)

If a document is served in accordance with this section, it is, for the purposes of section 390, taken to be served on the recipient concerned.

(2)

If the recipient is a body corporate or a Crown organisation, a document may be served,—

(a)

if it may be served under section 390(1)(b) or (c), by being sent, in accordance with either of those paragraphs, to the body corporate or Crown organisation for the attention of an officer or employee of that body or organisation:

(b)

by being delivered to an officer or employee of the body corporate or Crown organisation at its head office, principal place of business, or registered office, or by bringing it to the officer’s notice or the employee’s notice if that person refuses to accept it.

(3)

If a lawyer has authenticated a memorandum stating that the lawyer is authorised to accept service of a document on behalf of the recipient, the document may be served on the lawyer in any way authorised by section 390.

(4)

In addition to the ways of service authorised by section 390, a document may be served by delivering or sending it to, or by leaving it with,—

(a)

in the case of a recipient who lives or works on board a vessel (including a vessel belonging to the Royal New Zealand Navy), the person on board who is apparently in charge of the vessel:

(b)

in the case of a recipient who is a member of the New Zealand Armed Forces, the officer apparently in command of the unit or detachment to which the recipient belongs:

(c)

in the case of a recipient who is a prisoner, the manager or other officer apparently in charge of the prison.

Compare: 1947 No 16 s 108B

Subpart 11—Miscellaneous and general provisions

Warrants to arrest

392 Arrest of debtor about to leave New Zealand

(1)

A Judge may, on the application of a plaintiff in a proceeding to recover an amount of money, issue a warrant to arrest a defendant in the proceeding and bring the defendant before the court.

(2)

A Judge must not issue a warrant unless the Judge is satisfied that—

(a)

the plaintiff has a good cause of action against the defendant; and

(b)

there are reasonable grounds to suspect that the defendant is about to leave New Zealand with the intention of evading payment of the amount claimed.

(3)

The Judge may require the applicant for the warrant to deposit in the court an amount not exceeding $10,000 or to give surety for that amount for the purposes of payment of any compensation that may be ordered to be paid to the defendant under subsection (9).

(4)

The defendant must be brought before the court unless the amount claimed in the proceeding is paid to the plaintiff before the warrant is executed.

(5)

The Judge may—

(a)

release the defendant; or

(b)

release the defendant on bail on any terms and conditions the Judge thinks fit and with a surety of an amount the Judge thinks fit (but not exceeding the amount claimed in the proceeding plus costs) or without a surety; or

(c)

remand the defendant in custody.

(6)

A defendant who is remanded in custody must be brought before the court within 4 days after the date of the order.

(7)

A defendant arrested under the warrant may either give to the enforcing officer, or deposit in the court, the amount shown on the warrant as the amount of the claim plus costs. If the defendant does so, he or she must be released and the amount must be retained and,—

(a)

if judgment in the proceeding is given in favour of the plaintiff, paid or applied in accordance with the judgment; or

(b)

if judgment in the proceeding is given in favour of the defendant, paid to the defendant.

(8)

The Judge may,—

(a)

if the defendant consents, hear and determine the proceeding at the time the defendant is brought before the court; or

(b)

fix a date and time for the hearing of the proceeding.

(9)

If judgment is given for the defendant, the Judge may order that the defendant be paid compensation for his or her arrest, or arrest and detention, of an amount not exceeding $10,000.

(10)

Where a Judge is not available through absence, illness, or any other cause, a Registrar may exercise any of the powers conferred on a Judge by subsections (1) to, (3) and, (5)(a) and 5(b).

Compare: 1947 No 16 ss 109, 110

Interpleader

393 Interpleader

If a person expects to be sued by 2 or more persons making adverse claims to the same subject matter, that person may, if the subject matter does not exceed $350,000 in value, apply for relief by way of interpleader in accordance with the rules.

Compare: 1947 No 16 s 111

Contempt

394 Contempt of court

(1)

This section applies if any person—

(a)

wilfully insults a judicial officer, or any Registrar, or any officer of the court, or any juror, or any witness, during his or her sitting or attendance in court, or in going to or returning from the court; or

(b)

wilfully interrupts the proceedings of a court or otherwise misbehaves in court; or

(c)

wilfully and without lawful excuse disobeys any order or direction of the court in the course of the hearing of any proceedings.

(2)

If this section applies,—

(a)

any constable or officer of the court, with or without the assistance of any other person, may, by order of a judicial officer Judge, take the person into custody and detain him or her until the rising of the court; and

(b)

the judicial officer a Judge may, if he or she thinks fit, sentence the person to—

(i)

imprisonment for a period not exceeding 3 months; or

(ii)

a fine not exceeding $1,000 for each offence.

(3)

Nothing in this section limits or affects any power or authority of the court to punish any person for contempt of court in any case to which this section does not apply.

Compare: 2011 No 81 s 365

Restriction on commencing or continuing civil proceedings

395 Judge may make order restricting commencement or continuation of civil proceedings

(1)

A Judge may make an order (a section 395 order) restricting a person from commencing or continuing civil proceedings.

(2)

The order may have—

(a)

a limited effect (a limited order); or

(b)

an extended effect (an extended order).

(3)

A limited order restrains a party from continuing or commencing or continuing civil proceedings on a particular matter in the District Court.

(4)

An extended order restrains a party from continuing or commencing or continuing civil proceedings on a particular or related matter in the District Court.

(5)

Nothing in this section limits the court’s inherent power to control its own proceedings.

396 Grounds for making section 395 order

(1)

A Judge may make a limited order under section 395 if, in at least 2 civil proceedings about the same matter in the court, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.

(2)

A Judge may make an extended order under section 395 if, in at least 2 proceedings about any matter in the court, the Judge considers that 2 or more of the proceedings are or were totally without merit.

(3)

In determining whether the proceedings are or were totally without merit, the Judge may take into account the nature of any other interlocutory application, appeal, or criminal prosecution involving the party to be restrained, but is not limited to those considerations.

(4)

The proceedings concerned must be proceedings instituted or conducted commenced or continued by the party to be restrained, whether against the same person or different persons.

(5)

For the purposes of this section and sections 397 and 398, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.

397 Terms of section 395 order

(1)

A section 395 order may restrain a party from instituting commencing or continuing any civil proceeding (whether generally or against any particular person or persons) of any type specified in the order without first obtaining the leave of the court.

(2)

A section 395 order, whether limited or extended, has effect for a period of up to 3 years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed 5 years) if he or she is satisfied that there are exceptional circumstances justifying the longer period.

398 Procedure and appeals relating to section 395 orders

(1)

A party to any proceeding may apply for a limited order or an extended order.

(1A)

A Judge may make a section 395 order either on an application under subsection (1) or on his or her own initiative.

(2)

An application for leave to continue or issue commence a civil proceeding by a party subject to a section 395 order may be made without notice, but the court may direct that the application for leave be served on any specified person.

(2A)

An application for leave must be determined on the papers, unless the Judge considers that an oral hearing should be conducted because there are exceptional circumstances and it is appropriate to do so in the interests of justice.

(2B)

A Judge’s determination of an application for leave is final.

(3)

A section 395 order does not prevent or affect the commencement of a private criminal prosecution in any case.

(4)

The party against whom a section 395 order is made in the District Court may appeal against the order to the High Court.

(5)

The appellant in an appeal under subsection (4) or the applicant for the section 395 order concerned may, with the leave of the High Court, appeal against the determination of that appeal to the Court of Appeal.

(6)

A court determining an appeal under this section has the same powers as the court appealed from has to determine an application or appeal, as the case may be.

Recusal

399 Recusal guidelines

The Chief District Court Judge must, in consultation with the Chief Justice, develop and publish guidelines to assist Judges to decide if they should recuse themselves from a proceeding.

Reserved judgments and Internet publication of final written judgments

400 Information regarding reserved judgments

The Chief District Court Judge must, in consultation with the Chief Justice,—

(a)

publish information about the process by which parties to proceedings before the court may obtain information about the status of any reserved judgment in those proceedings; and

(b)

periodically publish information about the number of judgments of the court that he or she considers is are outstanding beyond a reasonable time for delivery; and

(c)

publish information about reserved judgments that he or she considers is useful.