Chapter 14 - The commercial provisions in the Judicature Act 1908

Options for location of commercial provisions

Each of the commercial legislative provisions discussed in this chapter that are to be retained in statute require a home. We do not think the proposed consolidated courts legislation would be the most appropriate statute for these provisions, as its focus will be on the structure and processes of New Zealand’s courts system.

We have considered whether the commercial provisions discussed in this chapter could be dispersed among existing statutes relating to their subject matter, but there does not appear to be a strong case for this. The subject of each of these provisions is quite specific, and does not cohesively fit with other statutes. Further, dispersing the provisions into other statutes could lead to confusion about where they are located.

We have also considered the possibility of including all of the provisions in an existing Act, such as the Mercantile Law Act 1908. However, neither this Act, nor any other on the statute book, appears to deal with such similar subject matters that these provisions would be a sensible fit.

Ideally, any necessary commercial provisions should remain together. If they are not included in the courts legislation, there are two main ways to achieve this. First, the provisions could remain as “leftover” provisions in the Judicature Act 1908. Second, they could be included in a new stand-alone Act containing miscellaneous commercial provisions.

Leaving the commercial sections in the Judicature Act

One option for the location of the commercial provisions is to repeal all the substantive sections of the Judicature Act 1908, except for these commercial provisions. The substance of the repealed sections would for the most part be incorporated into the new courts legislation. The commercial provisions would then continue in force under the Judicature Act 1908.

The name of the Judicature Act could be changed at the same time. As the name “judicature” indicates that the statute is related to the courts, it could create confusion if a Judicature Act was still in force after the enactment of a new Courts Bill. Instead, the Act containing the remnants of the Judicature Act 1908 could be renamed appropriately to reflect the commercial nature of the remaining provisions. The provisions would retain their current section numbers. This approach has the advantage of simplicity in that a policy case would not need to be made out for the introduction of another completely new Act in addition to a Courts Bill. Any retained provisions would not need to be amended or modernised.

On the other hand, this approach would result in a somewhat messy former Judicature Act 1908 with all but a small number of sections repealed. It would mean that the 1908 statute could not be completely repealed when the consolidated courts legislation took effect.

While changing the name of the statute containing the leftover provisions would alleviate confusion about where provisions relating to the courts are, it could create confusion about which statute these commercial provisions are in. However, as the Judicature Act 1908 is already not an obvious choice for the location of the provisions, it would arguably be no worse than the current position for those not already familiar with the provisions.

Although the United Kingdom commonly uses this approach in law reform, retaining the Judicature Act 1908 for a small number of provisions would be a relatively unusual step in New Zealand. However, there are examples of other “rump” statutes, such as the Criminal Justice Act 1985, the Education Act 1964 and the Local Government Act 1974.

Introducing a new Act for the commercial sections

An alternative option is to repeal the Judicature Act 1908 completely and introduce a new bill containing only the commercial provisions of the Act. This approach would result in a much cleaner statute. Because the provisions would be redrafted, it would be necessary to modernise them so they are drafted in plain-English and in a straightforward style.

However, the option of a new Act would complicate the process of gaining policy approval for the new legislation resulting from this review. It may be difficult to justify a completely new statute for such a small number of provisions. Further, the sections in question have disparate and unrelated subject matters, meaning that a new Act would be no more cohesive than retaining these sections in the Judicature Act. It is also significant that redrafting the commercial provisions in a new bill would likely require policy changes to be made to them, rather than just modernising the language of the provisions.


Where should any necessary commercial provisions currently found in the Judicature Act be located in the future? For example:

  • in a “rump” Judicature Act? or
  • in a completely new statute? or
  • other?