NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
A plaintiff may file amended statements of claim, with leave of the court being required in some instances (eg, where a cause of action has arisen since the filing of the statement of claim). 3.5 Rules of Service Once the court has accepted a statement of claim for filing, the plaintiff must serve the statement of claim and notice of proceeding on the defendant. Initial ser- vice must be in person, that is, the plaintiff must locate the defendant and bring the document to their atten- tion unless the defendant agrees to accept service by another means (such as email). If the defendant is a legal person, service can be effected at their regis- tered address. The first document filed and served by each party is required to provide an address for service (gener- ally the address of the party’s solicitor, including an email address). The party may then be served at that address. A defendant may be served outside New Zealand: see 3.3 Jurisdictional Requirements for a Defendant . 3.6 Failure to Respond If a defendant who has been properly served with a statement of claim fails to file a statement of defence in response, the plaintiff can apply for judgment by default. The proceeding then moves to a formal proof hearing. The defendant does not need to be notified of the hearing. The plaintiff must appear at the hear- ing and provide evidence to satisfy the judge that the statement of claim was properly served and that the causes of action are made out, and to enable the judge to assess any damages. The defendant may only file a statement of defence with the court’s leave. An abbreviated procedure for judgment by default exists for liquidated demands and claims for the return of property. 3.7 Representative or Collective Actions New Zealand does not have a specific class actions regime. The primary mechanism for seeking collec- tive redress is a representative action commenced under rule 4.24 of the High Court Rules 2016. This rule allows one or more persons to sue or be sued
on behalf of, or for the benefit of, all persons with the same interest in the subject matter of a proceeding. A representative action may be brought in two ways: • as of right with the consent of the other persons who have the same interest; or • by the High Court granting an application to com- mence a representative action brought by the intended representative plaintiff(s). Where leave is required, it has been routine for repre- sentative actions to be brought on an opt-in basis. In 2020, the Supreme Court of New Zealand confirmed that opt-out orders could be made in appropriate cases. Opt-in and opt-out mechanisms do not define the class of persons with the same interest on whose behalf proceedings are brought. Rather, they are used to limit membership of the class. The principles governing the application of rule 4.24 are as follows. • The rule should be applied to serve the interests of expedition and judicial economy. Single determina- tion of issues that are common to class members reduces costs and duplication of effort, and avoids the risk of inconsistent findings. • Access to justice is also important. Representa- tive actions make claims affordable that would otherwise be unaffordable for an individual claim- ant. They deter misconduct by undermining the assumption that minor but widespread harm will not result in litigation. • The test is whether the parties to be represented have the same interest in the proceeding as the named parties. “Same interest” means a significant common interest in the resolution of any question of law or fact arising in the proceeding. • A representative order can be made for only some issues in the claim. • It must be for the benefit of other class members that the plaintiff can sue in a representative capac- ity. • The court should take a liberal and flexible attitude in determining whether there is a common interest – it is not a high threshold. • A representative action should not:
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