NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
of public record, and the names of parties to proceed- ings may be published prior to the hearing. The High Court may exclude the public from a hear- ing, including where legislation confers a discretion to do so and under its inherent jurisdiction, frequently to protect sensitive information or privacy. Orders excluding the public or restricting publication must not go further than necessary to protect those inter- ests. Generally, the threshold for excluding the public is high, given the importance of the principle of open justice. Judges may clear criminal courts where necessary to avoid prejudice to fair trial rights, maintenance of the law, the safety of any person, or national security. Transcripts of Supreme Court oral arguments are typi- cally published online; most other hearings are not transcribed and/or published online. A person seeking to have a transcript prepared must obtain the leave of the court by demonstrating a “good reason in the interests of justice” for that transcript to be prepared. 7.7 Level of Intervention by a Judge A feature of the adversarial common law system is that the judge’s role is that of a procedural referee during trial, primarily tasked with ensuring that the trial is conducted, and evidence adduced, in a lawful way. Judges are also able to ask witnesses any questions that justice requires, although in practice this is usually limited to clarification of the witness’s evidence. The parties then have a right to cross or re-examine the witness on the matters raised by the judge. In most civil cases, judgment is reserved and given at a later date, along with detailed written reasons. Oral judgments delivered immediately after a hearing are increasingly rare. On occasion, a results judgment may be given in advance of reasons. 7.8 General Timeframes for Proceedings See 1.2 Court System regarding the average time- frame between commencement of a complex High Court civil proceeding and trial. That timeframe may depend on the complexity of the proceeding (includ- ing the number of parties and interlocutory steps), the
length of trial and when the court can accommodate it. Simple claims may be determined much more quickly. The typical duration of hearings that do not involve oral evidence from witnesses is a matter of days. Tri- als for complex commercial disputes, especially those involving expert evidence, can take weeks or months. 8. Settlement 8.1 Court Approval Court approval (leave) is not required to settle a law- suit, except where: • an interim order (eg, an interim injunction) has been granted; • an undertaking has been given to the court; • the terms of a representative order (see 3.7 Rep- resentative or Collective Actions ) provide that the representative action be settled or discontinued only with leave of the court; • a plaintiff wishes to discontinue a proceeding in which there is more than one plaintiff (in which case, leave or the consent of the other plaintiff(s) is required); or • a plaintiff wishes to discontinue a proceeding against a particular defendant(s) where there is more than one defendant (in which case, leave or the consent of the other defendant(s) is required). 8.2 Settlement of Lawsuits and Confidentiality Parties can agree that a settlement will remain confi- dential. Typically, the court will only be informed that the matter has settled, and that the proceeding is discontinued. The fact that the proceeding has been discontinued, however, is not confidential. 8.3 Enforcement of Settlement Agreements Where the terms of a settlement have been recorded in an agreement and a party breaches the terms, the other party may sue for breach of contract, subject to any alternative dispute resolution mechanisms con- tained in the agreement. Alternatively, the parties may use a Tomlin order to formalise the settlement of proceedings. The parties agree on the terms of settlement and submit them to
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