Chapter 13 - Miscellaneous provisions of the Judicature Act 1908

Part 1 − The High Court

Section 18: Crimes before 1840

Section 18 of the Judicature Act 1908 provides that “[t]he Court shall not have jurisdiction to try any felony or misdemeanour committed before the 14th day of January 1840”. This is a straightforward section restricting the High Court’s jurisdiction to crimes committed on or after 14 January 1840, the date of the proclamation of the British Crown’s right of pre-emption in New Zealand.351

Given that more than 170 years have passed since the date to which the section refers, it is safe to conclude that it would now be impossible for a living person to have committed a crime outside of the temporal jurisdiction of the High Court. Section 18 is therefore no longer necessary to New Zealand’s law, and we propose that it be repealed.

 

Section 23: Special sittings of the High Court

Section 23 provides that the Governor-General in Council may appoint special sittings of the High Court for the despatch of civil or criminal business, to be held at such time and place or places, and before such judge or judges as he or she considers fit.

We do not think there is any reason to retain this cumbersome process. Rather, the new legislation should enable the Governor-General to declare by way of a Gazette notice that an office of the High Court is established at a place and on a date stated in the notice, and there should also be a provision enabling judges to hold a sitting of the High Court at a time and place the judge thinks fit (as section 52 of the Act currently provides).

Section 26IB: Video link

Section 26IB enables a judge or associate judge to preside at a hearing of specified matters by way of video link. This section appears to now be unnecessary in light of the enactment of the Courts (Remote Participation) Act 2010 and the Evidence Act 2006. We are inclined not to include a similar provision in a draft Courts Bill.

Section 26P: Decisions of associate judges amenable to review or appeal

We are aware there are differing views on the scope of section 26P of the Act, which has spawned a number of appeals. This section provides that orders or decisions made by an associate judge in chambers may be reviewed by the High Court, whose decision is final, whereas an order or decision of an associate judge in any proceedings may be appealed to the Court of Appeal. Distinguishing between what is reviewable and what is appealable can be difficult, and should be clarified in legislation to the extent possible.

The Commission has been advised that the Rules Committee is presently examining this issue, and we therefore do not intend to propose any amendment to section 26P while the Rules Committee’s work on issues relating to this section is still in progress.

Section 54B: Discharge of juror or jury

Section 54B, which provides that nothing in the Judicature Act 1908 affects the powers to discharge a juror or jury under section 22 of the Juries Act 1981, appears to have been rendered meaningless by earlier amendments to the section. We can see no reason for including an equivalent provision in new legislation. The Juries Act 1981 would still apply without this provision.

 

Section 55: Absconding debtors

Section 55 provides judges with a power to order the arrest and imprisonment of an absconding debtor if the debtor does not give security guaranteeing that he or she will not leave New Zealand without leave of the High Court.352

Section 55(1) provides: “A person shall not be arrested upon mesne process in any civil proceedings in the High Court”. In England, “mesne process” described the writs issued subsequent to the original writ, but before a final process to enforce execution. The subsection has been described as “both obsolete and confusing”.353

Subsection 2 is written in equally archaic language. It essentially provides that the court has a discretion before final judgment in civil proceedings to order the arrest of a defendant, unless payment of a security, not exceeding the amount claimed, is made, where:

  • the plaintiff has good cause of action in the sum of $100 or more;
  • there is probable cause for believing the defendant is about to depart New Zealand; and
  • there is evidence that the defendant’s absence will materially prejudice the plaintiff in the prosecution of the proceedings.

Section 55 is concerned with the arrest of a defendant who is absconding before judgment, with the aim of frustrating the plaintiff’s action and ability to obtain judgment.354 The court will only order the arrest of the defendant where the defendant’s evidence is materially necessary for the plaintiff’s case. It is not sufficient that the defendant’s absence would make it difficult or impossible for the plaintiff to obtain payment from the defendant if the defendant left New Zealand.

A slightly different scenario applies in the case where the proceedings are for a penalty, or a sum in the nature of a penalty, in respect of any contract. For these, it is not necessary to prove that the absence of the defendant from New Zealand will materially prejudice the plaintiff in the prosecution. The security given, instead of being to ensure that the defendant will not go out of New Zealand, must be to the effect that any sum recovered against the defendant in those proceedings will be paid or that the defendant is to be sent to prison.355

When there is judgment against a defendant, the order for arrest previously obtained against the defendant is discharged.356

The High Court Rules detail the process for the plaintiff to apply for an order, and for the defendant to apply to have it rescinded, as well as the details of how a security may be given.357

The provision was used in Kelly v Schofield where the defendant was an aircraft repairer hired to repair the plaintiffs’ glider after a crash.358 While the glider was in the defendant’s possession, the defendant crashed the glider again in circumstances where he may have been liable for the damage. The plaintiff sought and received an order from the court under section 55 because the defendant appeared to be on the verge of shifting permanently to Australia. The defendant was arrested with an order that he be imprisoned for three months unless and until he gave security by way of a $55,000 deposit.

The impact of freezing orders

The development of the Mareva injunction is relevant to whether section 55 should be carried over into new courts legislation.359  A Mareva injunction is an interim injunction preventing a defendant from removing, disposing of, or charging assets either within or outside of the jurisdiction. It provides an alternative means through which plaintiffs can obtain some protection against absconding debtors. The injunctions have been renamed freezing orders.360 The power of the Court to issue freezing orders is recognised and confirmed in the High Court Rules.361

There are four essential requirements for the granting of a freezing order:362

  • the plaintiff must have a good arguable case;363
  • the defendant must have assets to which the order may apply;364
  • there must be a real risk that the property will be moved out of the jurisdiction or dissipated;365 and
  • the Court must stand back and weigh the interests of justice and balance of convenience.366

Freezing orders appear to be used much more frequently than section 55 of the Judicature Act 1908. This is likely to be because they are available on a wider basis than section 55 orders, which need evidence that the defendant’s absence will materially prejudice the plaintiff in the prosecution of the proceedings. The focus in the freezing order requirements on the risk that property will be removed or dissipated gets to the heart of what is more often the risk or problem in cases of absconding debtors. A freezing order is likely to be the better option in many cases, which raises the issue of whether section 55 remains relevant and necessary.

Arresting a defendant in a civil proceeding does seem a relatively extreme step, and we doubt whether it is appropriate for the courts to continue to have this power in addition to the power to issue a freezing order. It has been suggested that section 55 could be used in support of a freezing order to compel the attendance of a defendant at court for examination.367

 

District Courts Act 1947 provision

It is useful to note that the equivalent provision in the District Courts Act 1947 provides for a similar power, but in a somewhat more modern form.368 The key differences in the District Courts Act provision are:

  • the defendant’s intention to evade payment must be proven, rather than the effect of prejudicing the plaintiff’s case;
  • there is no requirement for the debt to be at least $100;
  • the judge is given the discretion to discharge the defendant or hold the defendant on bail. If imprisonment is resorted to, it can be for a maximum of four days rather than six months; and
  • the judge can require the person asking for the order to lodge a security of up to $2000.

The District Courts Act 1947 provision is drafted in a manner that is more accessible than section 55 of the Judicature Act 1908, and it seems to be a more measured response to the circumstances. We are not convinced that section 55 should be retained, but if it is, the drafting should be similar to the District Courts Act 1947 provision.

Q34

Should the new Courts Bill include a provision enabling the arrest of absconding debtors?

Section 56A: Failure to respond to a witness summons

Section 56A provides for a fine of up to $500 to be imposed on a person who fails to respond to a witness summons. It has been suggested to us that the maximum penalty is too low.

The penalty for “neglecting a witness summons” in section 54 of the District Courts Act 1947 is a fine not exceeding $300. Section 159 of the Criminal Procedure Act 2011,369 dealing with the failure to respond to a witness summons in the criminal jurisdiction, provides for a fine not exceeding $1,000. We note the fine for failing to attend for jury service under the Juries Act 1981 is also $1,000.370

The maximum fines for failing to respond to a witness summons under the Judicature Act 1908 and the District Courts Act 1947 do seem low in comparison to the $1,000 fine in the Criminal Procedure Act 2011. We suggest the provisions in the criminal and civil jurisdictions should be consistent. Our provisional view is that the relevant provision in the new Courts Bill should reflect section 159 of the Criminal Procedure Act 2011.

Q35

Do you agree that the maximum fine for failing to respond to a witness summons in the civil jurisdiction should be the same as in the criminal jurisdiction ($1,000)?

At the time of enactment, the old Supreme Court had this jurisdiction.

Section 55 appears to have been introduced as a substitute for the prerogative writ of ne exeat regno: Gorlitz v Kubelik (1908) 10 GLR 705. The writ remains available in England, but appears to be no longer available in New Zealand in respect of civil claims for debt, although it may still be available in the public law arena: Parsons v Burk [1971] NZLR 244.

McGechan on Procedure (online looseleaf ed, Brookers) at [J55.04].

At [J55.01], cited with approval in Kelly v Schofield HC Auckland CP1327/86, 10 December 1986.

Judicature Act 1908, s 55(3).

Felton v Callis [1968] 3 All ER 673; Hunter v Sullivan (1911) 14 GLR 293. In Lawson, Swain & Walker Ltd v Montefiore [1919] NZLR 666, Cooper J said (at 668): “Section 55 of the Judicature Act 1908 was not intended to give any right to a plaintiff to arrest a defendant if the absence of a defendant would render it difficult or impossible for a plaintiff to obtain the fruits of his judgment if the defendant left the Dominion, but is limited to cases where the evidence of a defendant is materially necessary for the plaintiff to prove his case.”

High Court Rules, rr 17.88−17.92.

Kelly v Schofield HC Auckland CP1327/86, 10 December 1986.

The Mareva injunction developed from Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093 and Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509. It was adopted in New Zealand in Mosen v Donselarr (1978) 2 PRNZ 482 and Hunt v BP Exploration Co (Libya) Ltd [1980] 1 NZLR 104.

High Court Rules, r 32.2.

Part 32.

Laws of New Zealand Creditors’ Remedies: Part II Pre-judgment remedies/Freezing Orders (online ed) at [9]; Rt Hon P Blanchard (ed) Civil Remedies in New Zealand (Brookers, Wellington, 2003) at 284.

High Court Rules, r 32.5(1)(b); Bank of New Zealand v Hawkins (1989) 1 PRNZ 451.

Under r 32.2 of the High Court Rules, the injunctions apply to assets located in or outside New Zealand. The defendant must have a beneficial interest in the assets: Westpac Banking Corporation v Gill (no 1) (1987) 2 PRNZ 52.

Sich v Sich [1992] 2 NZLR 544 (CA); Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645.

Whitmarsh v A’mon Corporation Ltd (1988) 2 PRNZ 576 at 579; Bank of New Zealand v Hawkins (1989) 1 PRNZ 451.

Rt Hon P Blanchard (ed) Civil Remedies in New Zealand (Brookers, Wellington, 2003) at [6.2.1].

District Courts Act 1947, s 109.

Not yet in force.

Juries Act 1981, s 32.