NEW ZEALAND Law and Practice Contributed by: Kirsten Massey and Chris Curran, Russell McVeagh
2. Legal Framework 2.1 Collective Redress and Class Action Legislation Currently, class action-style proceedings are con- ducted in Aotearoa New Zealand as representative proceedings under Rule 4.24 of the High Court Rules. In contrast to many other jurisdictions, there is no for- mal class action regime or rules. While Rule 4.24 was not originally drafted to facilitate class actions, the New Zealand Supreme Court has endorsed its use in that manner. In the Feltex share- holder proceeding (Credit Suisse Private Equity LLC v Houghton [2014] NZSC 37), the Court expressed the view that flexibility in how the Rule is applied accords with the modern approach to representative proceed- ings and that it is legitimate for the scope of the Rules to continue to adapt to ensure that the overall object of the High Court Rules is achieved. While the principles for managing and conducting class action-style proceedings have been developed and continue to evolve in case law, there is a prospect of legislative reform in this area. The Law Commis- sion has conducted a first-principles review of class actions and litigation funding in Aotearoa New Zea- land, recommending the creation of a statutory class action regime. As stated in 1.1 History and Policy Drivers of the Legislative Regime , the Law Commis - sion submitted its final report to the Ministry of Justice on 27 June 2022. 2.2 Scope of Areas of Law to Which the Legislation Applies Representative proceedings are available in any civil matter where the same interest requirement under Rule 4.24 of the High Court Rules is fulfilled. 2.3 Definition of Collective Redress/Class Actions Class action-style proceedings are, strictly speaking, called representative actions in Aotearoa New Zea- land, as they are conducted as representative pro- ceedings under Rule 4.24 of the High Court Rules. Rule 4.24 on persons having the same interest states:
“One or more persons may sue or be sued on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding – • (a) with the consent of the other persons who have the same interest; or • (b) as directed by the court on an application made by a party or intending party to the proceeding. The threshold concerning the ‘same interest’ require- ment is relatively low. In practice, the representative plaintiff(s) is required only to establish that: • the representative group is capable of clear defini- tion; • there are issues of fact or law common to all mem- bers; and • the representative plaintiff(s) fairly and adequately represents the group.” Additionally, the representative order cannot confer a right of action on class members who would not have such a right in separate proceedings, nor can it bar a defence that might have been available to the defendant in a separate proceeding. If the above requirements are met, the court will con- sider whether to exercise its discretion to make a representative order (Body Corporate Number DPS 91535 v 3A Composites GmbH [2023] NZCA 648). A court will not exercise its discretion to make a rep- resentative order if the proposed representative pro- ceedings would not advance the objective of the High Court Rules to secure the just, speedy and inexpen- sive determination of the proceedings. 3. Procedure for Bringing Collective Redress/Class Actions 3.1 Mechanisms for Bringing Collective Redress/Class Actions The primary mechanism by which class action-style proceedings are brought in Aotearoa New Zealand is by way of a representative proceeding under Rule 4.24 of the High Court Rules.
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