Chapter 5 - Some judicial powers

Introduction

On the whole, litigation in New Zealand courts proceeds in a temperate and appropriate way. Although the subject matter of litigation can be highly charged, there are not a lot of outbursts in court, nor many occasions when counsel act inappropriately in advancing their client’s case. However, there will always be exceptional cases, and in those situations courts need powers to deal with them.

There are two powers in particular that fall within the scope of this review. The first is contempt of court. It has often been said that the contempt power of a judge is the single most powerful authority a judge has. If somebody is getting out of control in the court or refuses to recognise orders of the court, the judge has to have power to exercise – in an appropriate manner – punitive measures. These can range from requiring an apology, through to fines, and even imprisonment. There are a number of unsatisfactory features of our current law of contempt which led to the subject being included in this reference to the Commission.

A second area is the problem of legal counsel (as distinct from their clients) who spin a case out beyond all appropriate bounds, unduly consuming valuable public resources and causing great loss to the other party. Judges presently have limited inherent powers to deal with this, but the consequences often end up being visited upon the parties, rather than their counsel. A number of jurisdictions now have specific “wasted costs” provisions, which can be exercised against counsel and New Zealand has recently enacted such a provision in its criminal law.98 Should there be a similar provision in the civil jurisdiction where this kind of abuse, when it occurs, is even more marked than in the criminal domain?

We will deal with each of these areas in turn. We discuss issues relating to the courts’ power to deal with vexatious proceedings in the final chapter of this Issues Paper.

Criminal Procedure Act 2011, s 364.