NEW ZEALAND Law and Practice Contributed by: Kirsten Massey and Chris Curran, Russell McVeagh
admit further evidence in limited circumstances). Court of Appeal decisions can be appealed to Aotearoa New Zealand’s highest court, the Supreme Court, only with the leave of the Supreme Court. Leave is only granted where the appeal involves a matter of general public importance or general commercial significance, or if a substantial miscarriage of justice may occur if the appeal is not heard. Judgments will be binding on all parties to the pro- ceeding, as determined by the relevant representative order made by the court at the outset of the proceed- ing. Representative proceedings may determine all issues for all members of the represented group or be structured to be binding only with respect to the common issues. Enforcement There is no particular mechanism for the enforcement of judgments in representative proceedings. The rel- evant mechanisms are therefore those provided in the usual procedural rules, which include attachment, charging, sale and possession orders. The Law Commission has conducted a first princi- ples review of class actions and litigation funding in Aotearoa New Zealand. Its terms of reference were to consider: • whether and to what extent the law should allow class actions; and • whether and to what extent the law should allow litigation funding, having regard to the torts of maintenance and champerty. The Commission has concluded its review and rec- ommended the creation of a statutory class actions regime, as well as the explicit permitting of litigation funding, subject to appropriate regulation. 4. Legislative Reform 4.1 Policy Development As already stated in 1.1 History and Policy Drivers of the Legislative Regime and 2.1 Collective Redress and Class Action Legislation , the Law Commission
submitted its final report to the Ministry of Justice on 27 June 2022. 4.2 Legislative Reform In its final report to the Ministry of Justice (see 4.1 Policy Development) , the Law Commission has rec- ommended the creation of a statutory class actions regime, with a new Class Actions Act as the principal source of law in relation to class actions in Aotearoa New Zealand. The Law Commission also recommend- ed that litigation funding should be expressly permit- ted, subject to appropriate regulation. Key features of the recommended new statutory regime include: • statutory objectives to improve access to justice and efficiently manage multiple claims; • a new commencement procedure, including a cer- tification stage – this will require court approval of class action proceedings and the consideration of a number of key issues, including class definition, the strength of the cause of action and the nature of the class action (opt-in or opt-out); • provision for both opt-in and opt-out class actions, with no presumption in favour of either approach; • a mechanism to deal with concurrent or competing class actions; • the possibility of “aggregate damages”, where the court is empowered to award such damages rather than requiring class members individually to prove their loss or damage; • court supervision and approval of class action discontinuances and settlements; and • court oversight and approval of litigation funding agreements, with the court empowered to make cost-sharing orders, enabling legal fees and fund- ing costs to be distributed equitably between all class members. The Law Commission also recommended that, in the interest of enhancing access to justice, the govern- ment should consider the establishment of a public action fund to provide funding for class actions that are unlikely to attract litigation funding. This could be funded initially by the government and then potentially by levies on future class action settlements.
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