NEW ZEALAND Law and Practice Contributed by: Kirsten Massey and Chris Curran, Russell McVeagh
The High Court of New Zealand is the principal institu- tion in which such proceedings are brought. A judg- ment of the High Court is conclusive unless overruled on appeal, first to the Court of Appeal and then to the Supreme Court. It is possible to bring representative actions in the Employment Court regarding employment law mat- ters. According to Employment Court Regulation 6, since there is no specific procedure for handling such actions in the Employment Court, these cases will be managed as often as practicable in accordance with Outside of Rule 4.24 of the High Court Rules, certain regulatory bodies in New Zealand have the power to bring collective proceedings. These mechanisms are statutory and include the following. • The Commerce Commission can bring proceed- ings on behalf of affected consumers under various statutes, including the Fair Trading Act 1986 and the Credit Contracts and Consumer Finance Act 2003. • The Financial Markets Authority (FMA) can, by High Court order, bring a representative proceed- ing on behalf of a class of persons for breach of the Financial Markets Conduct Act 2013 where the High Court considers that the claim is in the public interest. the High Court Rules. Statutory Mechanisms • The Human Rights Commission can initiate civil proceedings before the Human Rights Review Tribunal on behalf of a class of persons affected by a discriminatory practice that breaches the Human Rights Act 1993. 3.2 Overview of Procedure Class action-style proceedings are brought in New Zealand as representative proceedings, where a named plaintiff or plaintiffs bring a claim on behalf of themselves and those with the same interest in the subject matter of the proceeding, often referred to as the group or class. Under Rule 4.24 of the High Court rules, a representa- tive proceeding can proceed either:
• with the consent of those represented; or • as directed by the court on an application made by a party or intending party to the proceeding. Where the representative plaintiff has the consent of all persons it intends to represent, it may file a repre- sentative claim as of right. Without consent, a repre- sentative plaintiff requires a court direction and must apply to the court for a representative order. How- ever, even where consent is obtained, the courts have indicated that it is prudent for representative plaintiffs to apply for directions to confirm that they may act accordingly (J Flowers Ltd v Burns [1987] 1 NZLR 260 at 264). Given that class action proceedings typically involve a large number of potential group members, obtain- ing consent generally is not feasible. It is therefore commonplace for representative plaintiffs to apply to the court for a representative order under Rule 4.24 (b), often at the same time as the proceeding is filed. 3.3 Standing Any plaintiff who satisfies the same interest require- ment in Rule 4.24 of the High Court Rules can bring a representative action. See 3.2 Definition of Collective Redress/Class Actions as to the threshold adopted by the New Zealand courts in assessing the same interest requirement under Rule 4.24 of the High Court Rules. See also 3.1 Mechanisms for Bringing Collective Redress/Class Actions as to the statutory mecha- nisms to allow certain regulatory bodies to bring col- lective proceedings on behalf of a group of claimants. 3.4 Class Members, Size and Mechanism – Opting In or Out A representative order made under Rule 4.24 of the High Court Rules makes provision for how and when plaintiffs can become members of a representative group and therefore be part of a class action proceed- ing. Such an order can be sought on either an opt-in or opt-out basis. If the order provides for membership to be determined on an opt-out basis, all persons within the definition of the class are members of it unless they formally elect
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