NEW ZEALAND Law and Practice Contributed by: Shane Campbell and Thomas Westaway, Campbell Westaway
Documents subject to privilege may be withheld from disclosure. Privilege may be waived by voluntary dis- closure of the privileged communication or by putting it in issue in the proceeding. 8.3 Confidentiality New Zealand law recognises the right to withhold evidence on grounds of confidentiality, subject to the court’s overriding interest in ensuring relevant evi- dence is before it. Under the New Rules, confidential documents are not required to be included in initial disclosure. A court may order disclosure of confiden- tial documents as part of further disclosure where pro- portionate and necessary. Documents may also be withheld to protect a journal- ist’s source, matters of state, including national secu- rity, and information affecting relations with foreign governments. Where disclosure of sensitive commer- cial or personal information is compelled, the court will generally impose confidentiality restrictions. 8.4 Witness Evidence Under the New Rules, plaintiffs must serve factual wit- ness statements within 25 working days of the last pleading, and defendants within 45 working days of receiving the plaintiff’s evidence. They must be in the witness’s own words, confined to admissible and rel- evant matters within their personal knowledge, and must avoid document summaries or submissions. There are no witness depositions in New Zealand civil proceedings. At trial, evidence-in-chief is given by reference to the witness statement, which may be taken as read, read aloud, or supplemented by further oral evidence per- mitted by the court. Witnesses are subject to cross- examination and re-examination is confined to matters arising from it. Oral evidence is expected to focus on relevant factual disputes, with the narrative of events addressed through written opening submissions and the merged chronology filed before trial. 8.5 Expert Evidence Expert evidence is permitted where it will substantially assist the court in understanding other evidence or ascertaining relevant facts. Admissibility is governed by the Evidence Act 2006. Experts owe an overriding
duty to assist the court impartially, which takes prec- edence over any obligation to the instructing party. Expert evidence is ordinarily called by the parties. A court also has power to appoint an independent expert on its own initiative, though this power is exer- cised sparingly. Under the New Rules, a party may call only one expert per topic at trial without leave of the court. Experts appointed by opposing parties on the same topic are required to confer before trial, without the presence of the parties’ lawyers, and to produce a joint statement identifying matters of agreement and disagreement together with the reasons for any con- tinuing disagreement. The procedure for recognising and enforcing a foreign judgment in New Zealand depends on the judgment’s origin. Judgments from countries covered by the Reciprocal Enforcement of Judgments Act 1934, including the United Kingdom and certain Commonwealth coun- tries, may be registered in the High Court on appli- cation. Once registered, the judgment is enforceable as a New Zealand judgment. Registration may be set aside on grounds including fraud, lack of jurisdiction, breach of natural justice, or conflict with public policy. Judgments from Australian courts are subject to the dedicated registration regime under the Trans-Tasman Proceedings Act 2010. Registered Australian judg- ments are enforceable as New Zealand judgments subject to limited grounds for refusal. 9. Enforcement 9.1 Enforcement of Judgments For Commonwealth country judgments not covered by the 1934 Act, a memorial may be filed in the High Court under the Senior Courts Act 2016 to register the judgment as a New Zealand judgment. For all other foreign judgments, enforcement pro- ceeds at common law by bringing a fresh action in New Zealand on the judgment as a debt.
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