Civil Procedures in New Zealand

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Introduction

It is proposed to take up the civil procedure system in New Zealand. First of all, it is necessary to find out the main distinction between adversarial systems vis-à-vis inquisitorial systems that underpin legal practices in New Zealand. Under inquisitorial systems “Attorney questioning is often brief because the judge tries to ask all relevant questions.” (Inquisitorial system 2009).

Under inquisitorial systems, the courts are required to delve into the cases and ascertain the facts before passing their verdict. They need to go beyond the production of evidence and arguments of parties. However, under adversarial systems, the Courts, and more specifically the judges, act upon the evidence and arguments put forth by the attorneys of the contestants “Adversary theory holds that requiring each side to develop and to present its own proofs and arguments is the surest way to uncover the information that will enable the judge or jury to resolve the conflict.” (Adversary system – the adversary system). Thus, in real terms, they would just be referees of the deliberations between the applicants/plaintiffs and the defendants.

Individuals differ in style and approach and the Courts are well aware of it. The rubric of deliberations in one case may be entirely different from a similar case, even if it were the same lawyers engaged on both occasions. In the case of litigant-in-person, it is seen that due to certain reasons like costs, lack of confidence in lawyers, or some other reason, the litigant argues for himself, without seeking the help of counsel or lawyers.

While this has both pros and cons in terms of reduced legal expenses, satisfaction in defending one’s rights and legal privileges, there are cons in the form of being pitted against a stronger and more professionally equipped adversary, which may be self-defeating in certain cases. In the New Zealand context, “the adversary system is usually used to determine issues. In this system, the Judge generally plays the role of a neutral referee while each party presents evidence and arguments (on the facts and the law) in support of its own case. Rules of evidence determine what can and cannot be presented to the court. These rules are aimed at ensuring a fair trial of hearing for each party. The verdict (decision on the case) is given after all evidence and arguments have been presented. “(The New Zealand legal system).

It is seen that in the New Zealand legal system, the Crown has unprecedented powers and is the purveyor and protector of legal systems. The final authority of the Crown is absolute and to a large extent, unchallenged. However, a large portion of legal precedents has been set up by the New Zealand courts which draw heavily from English laws. This is because at one time New Zealand was a protégé of the British Empire and the influence of the British legal system is palpable. Thus English common law and other laws are also found in New Zealand legal systems.

It is seen that the adversarial systems rely heavily on juries and their preponderance on the subject matter under debate; the inquisitorial system however does not involve the aspect of juries and independent judges are empowered to conduct trials and award judgments.

Fallow Vs Calvert and Re Enock

“The learned counsel cited the cases of Fallow Vs Calvert and Re Enock. In all these cases the bottom line is that in a civil suit the role of the court is to decide cases on the evidence adduced by the parties and that a judge has no right to call a witness without the consent of the parties.” (In the Supreme Court of Zambia holden at Lusaka, p.J12).

While the circumstances and settings of the case have a material bearing, it is also to be seen that the absence of the jury, in effect, means that the element of bias and prejudice that takes place in the case of a one-man jury, does take place. This could also be seen in the context of the fact that likelihood of bias, prejudice, and discrimination against non-whites, or other racial or non-racial that could cloud a judge’s decision making could take place and therefore barriers to the free, fair, and equitable distribution of justice, could be compromised, or severely undermined. In the case of New Zealand, it is seen that the use of juries is preferred for most cases since they follow the adversarial system.

“The adversarial system is also subject to other controls. On 20 July 2000 the House of Lords in Arthur J.S Hall and Co. v. Simons (A.P.) Barratt v. Ansell and Others (Trading As Woolf Seddon (A Firm) Harris v. Scholfield Roberts and Hill (Conjoined Appeals) [2000] UKHL 38 (20th July 2000) swept away the traditional immunity of the advocate from suits for negligence in the conduct of proceedings, criminal or civil – as to the former, by a majority, as to the latter, unanimously. “(Joyce 2009, p.413).

However, considering a lot of factors involved, it is often seen that Alternative Dispute Resolution (ADR) may be used instead of long, protracted court battles which may not serve many purposes, except perhaps increase court fees and lawyers’ fees. ADR, especially mediation is seen as a viable option, to arrive at a quick solution that may be acceptable to all concerned. In such cases, it is seen that the main feature of mediation is acceptability, governance, and execution. However, while solutions proffered by mediators or negotiators may be acceptable in certain cases, in certain others, the need for lawyers may still exist, thus removing some shine from it.

Further, it is also seen that the aspect of equalizing balancing power between them does exist and of course, it is universally known that mediation decision cannot be enforced by all, and is a subject matter of individual party‘s decision-making process.

It is seen that cost is a major deterrent in negotiation and bargaining for a viable option. This may also be in terms of the fact that in the present context, Courts are overburdened with pending cases (?) the legal process is heavily bureaucratic and decisions take time for final settlements. Court expenses are heavy and a major burden on small and medium-class traders. Justice delayed is often justice denied, thus speed and expediency of legal processes need to facilitate judicial pronouncements that could be granted quickly and easily. Thus it is necessary that the legal procedure need not favor the rich and powerful, but should be so designed such that even ordinary people are accommodated and serviced via the judiciary process. Thus access to justice need not be restricted only in hands of a select few, but could also accrue with equal ease to poorer sections of society, who may not even be able to engage the services of a good lawyer to fight their case in court. Thus, it could be said that in the New Zealand context, living below the poverty line brings along with it a host of other major risks and daunting challenges. Thus, it could be seen that the law needs to protect the weak and oppressed classes of society by amending major and oft repeating laws into statutes that suit current requirements and needs of the litigating parties to conform to regulatory norms and procedures, over some time.

Reasons for a litigant in person phenomenon

Coming to the fact of a litigant in person phenomenon, it is believed that the main reasons could be in terms of the following facts:

Lawyer costs could be very high, and in certain cases, even prohibitive.
The defendant is confident that he is the best person to fight and win the case.
Technical aspects of the case can only be dealt with by professionals and the litigant happens to be one.
There is a total absence of faith in the judiciary and legal system, which prompts the litigant to take up the case himself.
The litigant has the kind of self-reliance necessary to fight the case by him.
It is in the interests of all concerned parties that the right verdict needs to emanate from the jurisprudential deliberations and it is acceptable to all parties.
The kind of legal activity to be handled does not justify such exorbitant legal costs.
If the legal system fails to deliver a decision, it would then be possible to resort to other out-of-court settlements for closing down the issue of contention.

It is now necessary to consider the above items in detail for getting a better position in this matter.

Prohibitive Costs: It is well known that court fees, including stamp & other duties, documentation charges, lawyer’s fees would be a large amount and need to be disbursed. Again, if the applicant loses the case, he would have to bear the full legal charges of the winner, which would be a huge sum indeed.
Self-confidence: Some litigants by a person are filled with confidence that they may have the legal potential to prevail over court and judge, as regards the authenticity and strong legal stand to be taken. It could also be in terms of the fact that certain critical aspects about the case may only be known to them, and no other person.
Technical aspects: There are several issues or sub-issues regarding the case that are technical and need to be couched and explained in non-technical detail in simple language by the litigant. This feature, he feels can only be done by him, and considering the importance, these details bear to the case as a whole, he must argue his case.
The total absence of faith in the judiciary system: Due to past indifferent experiences with courts and legal settings, it is possible that the litigant does not look upon lawyers with favor. Thus, under such circumstances, he would like to be a litigant by a person in order to represent himself.
Reliance on his own legal capabilities: It is possible that the litigant has a previous legal background which he would like to be put to good use and also to demonstrate his argumentative skills in court. The importance of the case is such that he cannot allow it to be in the hands of any other professional yet incompetent person.
Desire to see that the right outcome emanates from legal arguments: It is possible that, under healthy and positive deliberations, the right kind of judgment should come forth, that could be acceptable to all parties. More so, in an adversarial system, it is seen that the activities are carried out mainly by the litigants, and the role of the jury is that of just a passive spectator watching the proceedings until the deliberations are over.
Exorbitant costs: Legal proceedings in New Zealand are costly, and sometimes may not justify the result of the legal exercise. Thus, alternative dispute resolution (ADR) like mediation, arbitration, negotiation, etc is fast gaining currency due to its speedy and non-court demeanor. Besides, mediators would not be biased and would pronounce a judgment that would be arrived at on a consensus basis.
Out-of-court settlements: Considering the cost, efforts, and time factors, most contestants have come to realize the futility of long-drawn legal battles and are progressively seeking alternative methods, including out-of-court settlements.

To what extent is the current New Zealand court process capable of doing justice to Litigant-in-Person?

It is seen that the Environment Court has laid down elaborate arrangements and procedures for Litigant-in-Person (LIP) very much akin to court proceedings with the assistance of lawyers for the parties. The Court’s Consolidated Practice Note 2006 lays down the procedures to be followed for court proceedings. (Guidelines for litigants in person).

At the beginning of the case itself, the LIP is permitted to state his case and also make relevant references to the law which impinges upon the evidence produced by LIP. There is only a limited time during which LIP has to depose his oral argument, and except under extraordinary circumstances the time charts and norms have to be followed, failing which LIP would actively be debarred from deposing to Court.

The LIP is allowed to cross-examine witnesses in case he needs the witnesses for cross-examination. “Evidence given by witnesses which you seriously dispute should be the subject of cross-examination, so that the witness knows why you agree with him or her, and can comment on the reasons for disagreement. “ (Guidelines for litigants in person).

It is seen that the Court, at least on paper, follows a democratic setup and allows freedom and autonomy to the self–represented litigant, in much the same way as would have been offered an attorney-assisted litigant. However, the main aspects would be during cross-examination of the LIP, which could draw forth his full oratory and skill in the use of language, and the ability to convince people.

Are the courts less than well–equipped in their responsibilities?

In the context of District and High Courts, it is seen that either there is a single judge or a jury. The choice whether there is to be a jury or a judge would be decided by the aspects of the law. The Judge coordinates the activities of the jury in matters of law as deemed necessary. Using an adversary system, the jury must conduct trials in a fair and free manner. In most cases, where lawyers are present it is incumbent upon the sitting judge to hear the arguments and pass judgments. In the case of litigants in person, it is seen that the person argues and defends himself, possibly against more proficient and competent lawyers from the other party’s side. “Where a person is tried without a jury, the verdict is given by the Judge. Under an inquisitorial system, for instance, the judge or person in charge takes a more active role, asking questions and in general, the proceedings take the form of an investigation rather than a trial.” (The New Zealand legal system). It is seen that in the context of litigants in person, he does not have a professionally experienced attorney to represent his case in Court. It is quite possible that while in the witness box either as applicant or defendant, he could be subjected to intense and unprecedented questioning which he may not be able to put up with.

In April 2004, the Principal Environment judge announced that a new procedure would be installed to take care of multi-track case management systems to take care of its onerous tasks. (Case management). This has brought about a sense of purpose, urgency, and direction in court proceedings in New Zealand. The three-tier approach is designed to bring all-around improvements into the functioning of courts in the country by bifurcation as Standard, Complex, and Parties on hold system. Under the standard system, it is seen that not urgent and other miscellaneous appeal and applications are taken care of.” Under the second plan, complex, most plan appeals, complicated resource consent appeals, priority applications – including enforcement order applications are considered and finally in the Parties’ On Hold –“ proceedings where the parties are negotiating or mediating, or where a plan change or variation is promoted by a local authority.”. (Case management).

Constructive ideas and proposals that could help better equip to do justice

The main aspects that need to be covered during the trial proceedings are to ensure speedy justice in terms of punishment commensurate with the crime to the offender and succor and retribution to the aggrieved. It is seen that justice delayed is justice denied and therefore it is important that the trial needs least digression and speedy execution. The adoption of fast-tracking systems under the Environment court of New Zealand is to classify different kinds of cases in terms of their complexities, legal framework, and proposed time for the deliverance of justice systems. Thus this three-tier system proposes that one small case need not be held up due to large cases piling up and the administrative machinery necessary to cope with the backlogs and fresh cases. Thus the burden has been reduced to a large extent and also streaming has been done for the jurisprudential factors.

It is necessary that deadlines need to be issued for the delivery of pronouncements in long-pending cases, and these are carried out religiously and disposed of. Only hardened cases, which have eluded all possible solutions like sexual offenses, rapes, and murders, need to be brought within the purview of District Courts and High Courts. All cases leading to monetary losses and gains could either be handled by mediators or arbitrators and viable, out-of-court settlements could be pursued. Vexatious cases may also be referred to specially convened tribunals that could ease the burden of lower and middle order courts having to spend time and efforts in routine matters that could easily be either subcontracted or outsourced. The entire legal machinery needs to be overhauled and made accessible to e-Commerce deployment and internet usage. This could obviate the need for hard copy archives and library for Courts and all court matters could be efficiently stored in CD, CD Rom, etc.

Conclusions

It would not be wrong to conclude that the legal system in New Zealand is comparatively better than that existing in other European countries since it has brought about progressive laws which ultimately would be merged with current ones and become enforceable. It could also be seen in terms of the fact that enforcement and executive functions of laws need to be improved over time. Coming to the aspects of a litigant in person, which is also known as a litigant in propria persona or pro se litigant which fundamentally means a self-represented litigant, it could be said that the scope and meaning of this term have been undergoing conspicuous changes over time and changing legal frameworks. It is also to be noted that only a brave or a valorous person would care to be his attorney, especially when pitted against the best legal brains on the other side. While there are tinges of foolhardiness in this approach, it could also yield rich dividends if properly used. For one thing, financial or moral commitment to professional lawyers is avoided, and also the person could lay down the best strategy for legal warfare without fear, which may be productive to him in the long run. Therefore, it is necessary that future law business in New Zealand needs to consider the impact of precedents on verdicts. New Zealand does not have a written Constitution like the UK, and many laws of the country have been derived from UK laws. However, it is necessary that “The courts can be trusted to differentiate between errors of judgment and true negligence. In any event, a plaintiff who claims that poor advocacy resulted in an unfavorable outcome will face the very great obstacle of showing that a better standard of advocacy would have resulted in a more favorable outcome. “(Joyce 2009, p. 413).

Reference

Adversary system – the adversary system: who wins? Who loses?, further readings, Web.
Guidelines for litigants in person, Environment Court of New Zealand.
Case management, Environment Court of New Zealand.
Case management: Parties’ on hold, Environment Court of New Zealand.
Guidelines for litigants in person: some guidelines about procedure in the environment court.
Inquisitorial system: adversary system 2009. Web.
In the Supreme Court of Zambia holden at Lusaka.
Joyce, Roderick 2009, Civil Procedure, vol.810, p.413 University of Auckland (provided by customer)
The New Zealand legal system: court proceedings, Ministry of Justice Tahu o Te Ture.

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