NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
1. General 1.1 General Characteristics of the Legal System Like the United Kingdom, New Zealand’s constitution is not found in a single document. It is derived from a variety of sources, including: • legislation (including historical statutes from Eng- land); • the Treaty of Waitangi/ Te Tiriti o Waitangi • the common law; and • established constitutional practices known as conventions. A fundamental principle underpinning the constitution is the separation of the three branches of govern- ment: the executive, legislative and judicial. The three branches operate independently, and in accordance with the principle of comity. Parliament is sovereign. It has the power to create, amend or repeal any law. Its decisions cannot be overturned by another body. New Zealand courts do not have the power to invalidate legislation passed by Parliament. Because New Zealand is a common law jurisdiction, courts are bound by the principle of precedent, with lower courts bound to follow the decisions of higher courts. Cases from other common law jurisdictions, such as Australia and the United Kingdom, may be persuasive (but not are binding), although New Zea- land law is becoming increasingly indigenised. The New Zealand legal system is primarily adversarial. Parties put forward their position in written submis- sions and in oral argument. 1.2 Court System New Zealand’s court system has four main levels. • The District Court hears civil claims for up to NZD350,000, and most criminal trials. The Fam- ily Court and the Youth Court are divisions of the District Court. District Court decisions may be appealed to the High Court. The District Court also hears appeals from some specialist tribunals.
• The High Court hears civil claims for more than NZD350,000, as well as very serious or complex criminal trials, and applications for judicial review. It has unlimited civil jurisdiction. High Court decisions may be appealed (although leave may be required) to the Court of Appeal. • The Court of Appeal only hears appeals. Its deci- sions can be appealed to the Supreme Court, but only if the Supreme Court grants leave. • The Supreme Court is New Zealand’s highest court. It replaced the Privy Council (the superior court of other commonwealth countries) in 2004. There are also specialist courts, including the Environ- ment Court, Employment Court, Māori Land Court and Coroners Court. New Zealand also has a range of specialist tribunals. Some have no right of appeal, while others have a right of appeal to the District Court or the High Court. Time from commencement of a proceeding to trial var- ies depending on jurisdiction, location, the nature and complexity of the case, and any urgency accorded to it. As of 31 December 2024, the average time between the date on which a High Court civil proceeding is ready for hearing and its defended hearing date was 566 days. Matters can also be accorded urgent status, or decided on the papers in some circumstances. 1.3 Court Filings and Proceedings The starting point is that the principle of open justice requires trials and appeal hearings to be open to the public. Judgments are a matter of public record, and the names of the parties to proceedings are published prior to hearings. Most procedural matters are heard in chambers. On the application of parties or the judge’s own motion, parties or witnesses may be granted name suppression, evidence or judgments may be redacted, and the public may be cleared from the court. Parties to a proceeding and members of the public may apply for access to court documents, including pleadings, submissions and evidence, under access to court document rules. The media may also apply to a court to record court hearings.
792 CHAMBERS.COM
Powered by FlippingBook