Chapter 13 - Miscellaneous provisions of the Judicature Act 1908


Part 3 – General rules and provisions

Section 94: Effect of joint judgments

Under section 94 of the Judicature Act 1908, where parties are jointly liable, a judgment against one or more of those parties does not operate as a bar or a defence to a proceeding against the other jointly liable party or parties, except to the extent that the judgment has been satisfied.376 This section modified the common law.377

The case of W C Fowler and Sons Ltd v St Stephens Board of Governors, in which a school paid money to an agent who liaised with Gullivers Sports travel to book a rugby tour party to Europe, illustrates this provision in action.378 The agent misappropriated a substantial portion of the school’s payment for the trip and absconded to Australia, leaving Gullivers unpaid. Gullivers sued the school. Section 94 meant that the school could be sued by Gullivers despite judgment against the agent.

The scope of application of section 94 has been narrowed by section 17(5) of the Law Reform Act 1936. This section specifically excludes section 94 of the Judicature Act 1908 from applying in the case of persons who commit torts (ie tortfeasors). Section 17 of the Law Reform Act 1936 provides specific rules applying in the case of proceedings against and contribution between joint and severally liable tortfeasors. Judgment for damages recovered against one tortfeasor is not a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor.379

The Commission has recently received a separate reference to review joint and several liability. In the meantime, as it modifies the common law, section 94 (or its equivalent) should remain on the statute books. However, its scope could be made clearer on the face of the provision if the exclusion of tortfeasors in section 17(5) of the Law Reform Act 1936 was cross-referenced or made clear in the wording of what is currently section 94.

Section 98A: Proceedings in lieu of writs

Section 98A was inserted from 1 January 1986 by section 8(1) of the Judicature Amendment Act (No 2) 1985. It removed the court’s power to grant relief by writ and replaced this with the power to grant the same relief by way of judgment or order. The section explicitly does not apply to the writs of habeas corpus, execution and any writ in aid of the writ of execution, but does apply to all other writs.

This provision reflected a similar amendment made in England by section 7(1) of the Administration of Justice (Miscellaneous Provisions) Act 1938 (UK), but which only replaced the prerogative writs of mandamus, prohibition and certiorari.

There do not appear to be any cases in which section 98A has been at issue. Originally, it was essential to have a writ in order to have a case heard by a court in England. Numerous different writs developed as the basis for different types of claims. However, the importance of writs diminished in recent centuries, with the focus shifting from the need to have the correct writ to advance a claim to a more unified procedure for all civil actions.

Section 98A effectively removes the need for writs in New Zealand. They are now seldom referred to, with the exception of the writ of habeas corpus, which is not replaced by this provision, and the prerogative writs of mandamus, prohibition and certiorari, which continue to be available in the field of judicial review.

Section 98A is unsatisfactory in terms of being clear law. It refers to the court’s jurisdiction “to grant any relief or remedy or do any other thing by way of writ” immediately before the commencement of this section on 1 January 1986. It seems to be impossible to determine all of the writs that were replaced by the court’s power on this date. The provision was clearly phrased this way in order to maintain the courts’ powers as they were at the time of the commencement of the provision, and to avoid reinstituting any powers under writs that had been previously abolished.380 The provision should be rewritten in a way that retains its meaning and effect, but is phrased more clearly.


Do you agree with the proposals to retain and clarify:

(a)section 94 (effect of joint judgments)?

(b)section 98A (proceedings in lieu of writs)?

Laws of New Zealand Guarantees and Indemnities (online ed) at [118].

In King v Hoare (1844) 13 M & W 495, it was held that when a judgment was obtained against one joint debtor, the cause of action against both debtors merged into the judgment. This meant a subsequent action could not be brought against the other joint debtor.

W C Fowler & Sons Ltd v St Stephens College Board of Governors [1991] 3 NZLR 304.

Law Reform Act 1936, s 17(1)(a).

For instance, the writ of summons.