NEW ZEALAND Law and Practice Contributed by: Kirsten Massey and Chris Curran, Russell McVeagh
1. Policy Development of Collective Redress/Class Action Mechanisms 1.1 History and Policy Drivers of the Legislative Regime In contrast to many other common law jurisdictions, Aotearoa New Zealand does not have formal class action rules or legislation. However, class action-style proceedings have nevertheless increased in promi- nence in the last decade. In the absence of a class action regime, group litigation is conducted as a rep- resentative proceeding under Rule 4.24 of the High Court Rules. Rule 4.24 allows a person or persons to bring a claim on behalf of a group of people sharing the same interest in the subject matter of the pro- ceeding. The details of the procedure to be applied to such a representative proceeding are not set out in Rule 4.24. However, a reasonably well-developed set of princi- ples for the management and conduct of class action- style proceedings has been developed in recent case law under the existing procedural rules and the inher- ent jurisdiction of the High Court, as outlined further in 2.1 Collective Redress and Class Action Legislation . Consideration of a Legislative Regime The possibility of legislative reform has been consid- ered at various points. Between 2006 and 2008, the Rules Committee (a statutory body responsible for the procedural rules of the New Zealand courts) considered and investigated the possible introduction of legislation to introduce a class action regime. In late 2008, a draft Class Action Bill and draft High Court Amendment (Class Action Rules) were submitted to the Ministry of Justice for consideration, but were not acted upon. Again in 2018, the Rules Committee released new draft procedural rules for consultation; however, the most realistic pathway to reform in this area is now through the work of Te Aka Matua o te Ture, the New Zealand Law Commission (the “Law Commission”). Initially announced in 2017, the Law Commission began a comprehensive review of class actions and litigation in Aotearoa New Zealand in 2019. Its terms of reference were to consider:
(i) whether and to what extent the law should allow class actions; and (ii) whether and to what extent the law should allow litigation funding, having regard to the torts of main- tenance and champerty. The Law Commission submitted its final report to Te Tāhū o te Ture, the Ministry of Justice, on 27 June 2022. As signalled in earlier consultation papers, the Law Commission has recommended the establish- ment of a statutory class actions regime, including a new Class Actions Act. The proposed legislative regime is outlined further in 4.2 Legislative Reform . 1.2 Basis for the Legislative Regime, Including Analogous International Laws New Zealand does not have a formal class action regime as exists in other jurisdictions. Proceedings that would be advanced as class actions in other juris- dictions may be pursued as representative proceed- ings in Aotearoa New Zealand. Such proceedings are brought pursuant to Rule 4.24 of the High Court Rules, which permits a person or persons to bring a claim on behalf of other people who share the same interest in the subject matter of the proceeding. An equivalent to Rule 4.24 has existed in Aotearoa New Zealand since the late 1800s, based on an Eng- lish model. However, class action-style proceedings have been slow to emerge in New Zealand compared to several overseas jurisdictions. The Law Commis- sion noted in its December 2020 Issues Paper that only 44 cases have proceeded under Rule 4.24, with the majority of these being filed after 2000. As the principles for managing and conducting class action-style proceedings in Aotearoa New Zealand have been developed through case law under the existing procedural rules and the Court’s inherent jurisdiction, they are not modelled to a material degree on any other country’s regime. 1.3 Implementation of the EU Collective Redress Regime There is no relevant information in this jurisdiction.
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