NEW ZEALAND Law and Practice Contributed by: Shane Campbell and Thomas Westaway, Campbell Westaway
Common fund orders are an established feature of the representative proceedings landscape following Simons v ANZ Bank New Zealand Ltd [2024] NZCA 330, addressed in 5.2 Third-Party Funding . 7.4 Class Actions, Mass Claims and Arbitration Class actions brought in arbitration are not common. The Act contains no provisions addressing multi-party or representative arbitration, consolidation requires the agreement of all parties, and it is not generally possible to bind non-signatory class members to an arbitration agreement. 7.5 Trends Representative proceedings are a significant and growing feature of the New Zealand litigation land- scape, driven by appellate clarification, judicial devel- opment of existing procedural rules, and the increas- ing participation of third-party funders. The most significant recent development is Giel- en v Johnson & Johnson , in which the High Court addressed a major opt-out representative proceeding, engaging with substantially all of the key structural questions in funded opt-out litigation: opt-out orders, the same interest requirement, aggregate damages, and common fund orders. If permitted to advance on an opt-out basis, the proceeding would be among the largest representative actions ever brought in New Zealand. Representative proceedings and third-party funding have developed in a mutually reinforcing relationship. Southern Response made funded class actions more commercially attractive; that growth generated the litigation that produced the common fund order juris- diction confirmed in Simons ; and Simons has in turn strengthened the proposition for funders considering the New Zealand market. Both domestic and interna- tional funders are now active. The combined trajectory points toward a rapidly maturing ecosystem in which funding availability and procedural development con- tinue to shape each other. The Law Commission’s 2022 recommendation for a dedicated statutory class actions regime remains out- standing. Legislative reform, if enacted, would provide
greater procedural certainty and is expected to further accelerate growth.
8. Evidence 8.1 Disclosure
The New Rules have fundamentally reformed docu- ment disclosure, abolishing standard discovery for most civil proceedings and replacing it with a two- stage framework. At the first stage, a party serving its pleading must provide initial disclosure of documents it intends to rely on and all adverse documents it knows to exist or has good reason to believe exist, verified by affida- vit. Confidential documents are excluded from initial disclosure. Privileged documents must be identified in the affidavit but need not be produced. At the second stage, the court or the parties may agree on further disclosure. A judge will consider at the Judicial Issues Conference whether further dis- closure is warranted and, if so, its scope. Further dis- closure will be ordered only where proportionate and necessary for the fair determination of the proceeding. Parties and their legal representatives are subject to an overriding duty to co-operate in the disclosure process. Non-compliance may attract adverse costs orders or other judicial intervention. 8.2 Privilege New Zealand recognises legal privilege under the Evidence Act 2006. Solicitor-client privilege protects communications made for the purpose of seeking or receiving legal advice, including with in-house counsel to the extent the communications concern legal rather than commercial advice. Litigation privilege protects documents prepared for the dominant purpose of liti- gation that has begun or is reasonably apprehended, and extends to communications with third parties, including prospective witnesses and experts. Settle- ment negotiation privilege protects confidential com- munications made in connection with an attempt to settle or mediate a dispute, giving statutory effect to the common law without prejudice rule.
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