NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
agement, the parties are usually required to file a joint memorandum or separate memoranda addressing case management matters within a certain time after a defence being filed. Such matters may include: • issues arising from the pleadings or parties; • proposed discovery orders and timetable; • any interlocutory applications; • readiness for trial; • timetable directions to trial; • hearing requirements; and • anything else discussed between the parties. Parties are expected to have conferred on these mat- ters before filing a memorandum. The court may then direct a case management confer- ence to address those matters, or allocate a trial date and make any directions to ready the proceeding for trial. Further case management conferences, issues conferences and pre-trial conferences may also be convened. Under the New Rules, the default position for ordi- nary proceedings is that the first judicial conference will be held after the parties have exchanged factual witness statements. Parties must file position papers and a bundle of key materials for the conference. Case management conferences may also be scheduled by the court of its own initiative or on the application of a party, but will cease to be a standard feature of the pre-trial process. 7.3 Jury Trials in Civil Cases Jury trials are only available in civil cases for defa- mation, false imprisonment or malicious prosecution. Such proceedings must be heard by a jury if either party requests it, unless the judge considers that the trial is likely to involve complex questions of law that are not appropriate for trial by jury. 7.4 Rules That Govern Admission of Evidence The starting point is that relevant evidence (ie, evi- dence that has a tendency to prove or disprove any- thing of consequence to the determination of the pro- ceeding) is admissible. However, relevant evidence must be excluded if its probative value is outweighed
by the risk that the evidence will have an unfairly preju- dicial effect on or needlessly prolong the proceeding. These general rules are given more specific expres- sion in relation to (for example): • (non-expert) opinions, which are admissible if nec- essary to help a witness express something they heard, saw or otherwise experienced; • hearsay, which is only admissible if the circum- stances provide reasonable assurance that it is reliable; • veracity evidence, which is only admissible if it is substantially helpful to the court; • previous consistent statements of a witness, which are admissible only in certain circumstances; and • evidence of uncommunicated subjective intentions of contractual parties’ views of a contract. 7.5 Expert Testimony Expert evidence is admissible if the judge or jury is likely to obtain substantial help from the expert in understanding other evidence in the proceeding, or ascertaining any relevant fact. Experts are subject to an overriding duty to assist the court impartially on relevant matters within their expertise: they must not be advocates for the party who engages them. Most expert evidence is called by the parties. Judges may appoint an independent expert, however, on their own initiative, to inquire into and report back on any question of fact. The court may also direct the parties’ experts to participate in a conference in the absence of the parties’ lawyers, attempt to reach agreement, and produce a joint report on the matters on which they agree and continue to disagree, including the reasons for their disagreement. Under the New Rules, the default position is that a party may call only one expert per topic, and experts must conference before trial, as noted in 7.1 Trial Pro- ceedings . 7.6 Extent to Which Hearings Are Open to the Public As set out in 1.3 Court Filings and Proceedings , the principle of open justice means that hearings are usu- ally open to the public. Judicial decisions are a matter
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