NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
relief that the parties have agreed is appropriate (eg, a pecuniary penalty). 4.4 Requirements for Interested Parties to Join a Lawsuit A judge may, at any stage of a proceeding, make an order adding as plaintiff or defendant a person who ought to have been joined, or whose presence is necessary to adjudicate on and settle all questions involved in the proceeding. The order may be made upon application by a party or non-party, or of the court’s own volition, and on such terms as the court considers just. A person cannot be added as a plaintiff without that person’s consent. 4.5 Applications for Security for Defendant’s Costs A defendant can apply for an order that a plaintiff must pay a sum of money as security for the defendant’s costs where: • the plaintiff is resident or a corporation (or a sub- sidiary of a corporation) incorporated outside of New Zealand; or • there is reason to believe that the plaintiff will be unable to pay the defendant’s costs if the plaintiff is unsuccessful; and • it is just in all the circumstances to make an order for security for costs, balancing the interests of the plaintiff and defendant. Security for costs are typically paid into and held by the court. 4.6 Costs of Interim Applications/Motions Costs on defended interlocutory applications follow the costs principles that apply to substantive pro- ceedings. The key costs principle is that the party who fails should pay costs to the successful party. The amount of costs is determined by reference to a “scale” in the High Court Rules. The scale sets out recovery rates and time allowances for steps in a proceeding, and these vary according to the complexity of the mat- ter. Scale costs represent a portion of a party’s actual legal costs. In rare circumstances, increased costs or indemnity costs (ie, full/solicitor-client costs) may be
awarded. The courts retain an overriding discretion in relation to costs. Ordinarily, costs on opposed interlocutory applica- tions must be fixed at the time the interlocutory appli- cation is determined. 4.7 Application/Motion Timeframe Currently there are no formal timeframes for the deter - mination of interlocutory applications. Parties may request that an interlocutory application is dealt with on an urgent basis. Under the New Rules, only a small number of interloc- utory applications will be dealt with at an early stage of a High Court proceeding. These include applications to add or remove parties, for security for costs, which raise a protest to jurisdiction, for summary judgment, and to strike out. These are referred to as “dispositive” applications. The New Rules envisage that non-dispositive applica- tions will be filed before service of factual evidence only in exceptional circumstances, and that it will be exceptional for any such applications to be deter- mined before a judicial issues conference. Parties can request that an application is dealt with on an urgent basis.
5. Discovery 5.1 Discovery and Civil Cases
At the time of writing, discovery is available in most civil proceedings. Parties must co-operate on discov- ery and inspection processes. The default position is that a party is required to conduct a reasonable search for and to disclose documents that are, or have been,
in that party’s control and: • on which that party relies; • adversely affect that party’s case; • adversely affect another party’ case; or • support another party’s case.
In some large or complex cases, “tailored” discovery – involving more or less discovery than the “standard”
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