New Zealand litigation guide
Jack Hodder SC and Daniel Kalderimis
Chapman Tripp
Tel: +64 4 499 5999; Fax: +64 4 472 7111; Website: www.chapmantripp.com
New Zealand is a unitary state with a well-developed and stable legal system based upon common law. As a British colony, New Zealand was initially subject to laws made in the UK. Since 1852 the country has had capacity to make its own laws and since 1947 this power has been essentially exclusive, a position formalised in 1986.
In 2003, New Zealand abolished the right of final appeal to the Privy Council sitting in London and created its own Supreme Court. The court structure is thus the High Court (which is the court of general jurisdiction), sitting over the District Court (which is a first instance court of limited jurisdiction) and under the Court of Appeal and the Supreme Court. Both of the latter courts sit in Wellington. There is a general right to appeal from the High Court to the Court of Appeal but appeals from the latter to the Supreme Court are by leave only and leave is often refused.
Civil litigation
Civil litigation in New Zealand is adversarial and is conducted according to detailed rules that govern procedure in each court. A new edition of the High Court Rules, which apply to most significant civil litigation, was issued in 2008.
Civil remedies include damages and equitable compensation, specific performance, declarations, as well as a range of mandatory and prohibitory injunctions (including freezing and seizure orders). A notable feature of New Zealand contract law is s 9 of the Contractual Remedies Act 1979, which provides a broad statutory discretion as to the appropriate remedy for breach of contract or pre-contractual misrepresentation. Exemplary damages are an available remedy in New Zealand, but are rarely awarded. Civil trials are by judge only and not juries (except for some defamation cases).
New Zealand has mutual recognition of judgments treaties with a number of countries. These treaties have been incorporated into New Zealand law by orders made under the Reciprocal Enforcement of Judgments Act 1934, which allows for the registration of money judgments given in superior courts (as well as from certain inferior courts in Australia). The straightforward procedure for registering a foreign judgment under the Judgments Act is governed by Part 23 of the High Court Rules. The effect of registration is to give the New Zealand High Court the same enforcement powers as if the judgment had been given in the High Court.
Foreign judgments to which the Judgments Act does not apply may be enforced at common law by bringing an action on the judgment. To be enforced in New Zealand the foreign judgment must be: a money judgment which is not for a sum in respect of taxes or penalty; final and conclusive; and one in which the foreign Court had jurisdiction to make against the judgment debtor.
The Judgments Act provides special procedures for the registration and enforcement of judgments and orders of the Federal Court of Australia in competition law matters. The rules relating to the enforcement of Australian judgments will ease further by the end of 2009, as both countries introduce legislation implementing the concluded Trans-Tasman Court Proceedings and Regulatory Enforcement Treaty.
Commercial arbitration
New Zealand is a party to the 1958 New York Convention and the 1966 Washington Convention (as well as to the earlier Geneva Conventions). Its Arbitration Act 1996 effectively replicates the UNICTRAL Model Law on International Commercial Arbitration in its First Schedule, which is applicable to both domestic and international arbitrations. Domestic arbitrations are – and parties to international arbitrations may choose to be – governed by the Second Schedule, which includes certain additional rules such as the right to appeal on a question of law. New Zealand amended the Arbitration Act in 2006 to incorporate the recent amendments to the Model Law.
The Arbitration Act provides that the same rules for the recognition and enforcement of all arbitral awards apply irrespective of the country in which they were made. The procedure for enforcing an arbitral award is set out in the First Schedule, art 35. An arbitral award may be enforced either by having the award entered as a judgment in either the High Court or a District Court, or by ordinary proceedings such as for breach of contract for failing to comply with the award.
New Zealand court rulings, including the first decision of the Supreme Court involving arbitration, Casata Ltd v General Distributors Ltd [2006] 2 NZLR 721, have been generally supportive of arbitration and in line with international developments. The Arbitrators’ and Mediators’ Institute of New Zealand has recently created a private Arbitration Appeals Authority, which is available to hear appeals from arbitral awards in place of the court.