NEW ZEALAND Law and Practice Contributed by: Kirsten Massey and Chris Curran, Russell McVeagh
may be required (subject to any necessary redactions in respect of confidential, litigation-sensitive or privi- leged material), where that is necessary to determine an application before the court. Proactive disclosure of (redacted) funding agreements is an emerging prac- tice in funded class actions in New Zealand. Common Fund Orders The New Zealand Court of Appeal recently held that New Zealand courts have jurisdiction to make com- mon fund orders (CFOs) in representative proceedings (Simons v ANZ Bank New Zealand Ltd [2024] NZCA 330). A CFO allows a funder to take a share of each class member’s recovery regardless of whether the class member signed up to the funding agreement. The Court of Appeal held that the High Court Rules confer jurisdiction to make CFOs, and that this juris- diction is consistent with a key objective of Rule 4.24, which is to enhance access to justice. 3.10 Disclosure and Privilege The rules regarding disclosure in representative pro- ceedings are the same as those in any other civil pro- ceeding in Aotearoa New Zealand, with disclosure occurring at a number of stages throughout the liti- gation process. The most significant obligation is the requirement on the parties to disclose relevant docu- ments in their control in accordance with any disclo- sure order made by the court. The court can order standard disclosure of all docu- ments that may advance or damage a party’s case, tailored disclosure based on the particular circum- stances of the case, or dispense with discovery alto- gether. In representative proceedings, discovery is typically subject to close case management by the court. In addition to discovery orders against the parties, the court may order non-parties to give discovery. In representative proceedings, members of the repre- sented group who are not representative plaintiffs may be required to provide discovery if the court orders it as a matter of case management.
Parties are not required to provide disclosure of doc- uments that are subject to privilege, including legal advice and litigation privilege. 3.11 Remedies All relevant civil remedies are available in Aotearoa New Zealand, including injunctive, declaratory, equi- table and monetary relief. 3.12 Settlement and ADR Mechanisms In the absence of a set of rules governing representa- tive proceedings, the usual range of alternative dis- pute resolution (ADR) mechanisms is open to the par- ties. These include mediation and arbitration. Lawyers are required by the relevant professional rules to keep clients advised of alternatives to litigation that are rea- sonably available, but whether to engage in ADR is a matter for the parties and there is no requirement for them to do so. Mediation is commonly used in the context of settle- ment negotiations in commercial disputes in Aotearoa New Zealand. New Zealand’s Arbitration Act 1996 notably limits the enforceability of arbitration clauses in contracts with consumers. This means that a defendant in a class action brought by consumers may not be able to force the action to proceed by arbitration, even if there is an arbitration clause in their standard form contracts. For an arbitration clause to be enforceable in such circumstances, each consumer must agree (again) to arbitrate after the dispute arises. 3.13 Judgments and Enforcement of Judgments Judgments and Appeals The High Court of New Zealand is the principal institu- tion in which representative proceedings are brought. A judgment of the High Court is conclusive unless overruled on appeal. In most circumstances, there is a right of appeal to the Court of Appeal. Leave to appeal may be required in some circumstances. Appeals to the Court of Appeal are by way of rehearing, which in practice means that it will be conducted on the record of the evidence giv- en in the High Court (subject to the Court’s power to
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