Chapter 9 - Civil jury trials in the High Court

The current law in New Zealand

Section 19A of the Judicature Act 1908 provides the right for a party to civil proceedings to have the case heard by a judge and jury in the High Court where:

  • the relief claimed is payment of a debt, pecuniary damages, or recovery of chattels;
  • the value of the debt, damages or chattels exceeds $3,000; and
  • notice is given to the Court and the other party.

The notice must be given at least five working days before the setting down date for the proceeding, or before the notice date set down by the judge.182

The courts have held that “pecuniary damages” in section 19A does not include public law compensation sought for a breach of the New Zealand Bill of Rights Act 1990,183 but does include a claim by one tortfeasor against another for contribution or indemnity under section 17(1) of the Law Reform Act 1936.184

 

If a party meets the above criteria, the judge has an overriding discretion under section 19A(5) of the Judicature Act 1908 to order that a trial will be by judge alone, on application by either party, where:

  • the trial or any issue within it will involve mainly difficult questions of law;185 or
  • the trial will involve prolonged examination of documents or accounts,186 or investigation of difficult questions relating to scientific, technical, business or professional matters.187

The onus of establishing one of the factors identified in section 19A(5) falls on the party resisting trial by jury.188

The judicial discretion in section 19A(5) was introduced in 1960 to the forerunner of this section.189 The amendment was intended to remedy the defect in the law that a party that requested a trial by jury could not be denied that right, however inconvenient and unsatisfactory a trial before judge and jury might be.190

Section 19B provides that all civil proceedings where no application is made for jury trial are to be tried before a judge alone, unless the judge considers the proceeding or issues within it can be more conveniently tried by a jury.

Together, sections 19A and 19B essentially give a prima facie right to trial by jury in any civil proceeding where the relief claimed exceeds $3,000. This right is subject to a judicial discretion in the precisely defined circumstances set out in section 19A(5).

The courts will not interpret the prima facie right to a jury trial narrowly by basing the decision on considerations such as the greater efficiency and reduced cost of a judge alone trial.191

In M v L, the family of a student who had been the victim of sexual abuse by a school teacher sued the Crown, among other defendants, as the teacher’s employer on the basis that it was vicariously liable for the teacher’s actions and applied for the case to be heard by judge and jury.192 The Crown opposed the application for jury trial, arguing that the case would involve difficult questions of law such as vicarious liability, exemplary damages and fiduciary relationships. Giles J discussed Guardian Assurance Co v Lidgard,193 where the Court of Appeal considered that a narrow interpretation to the grounds for declining a jury trial was appropriate. This was contrasted with the judgment of Barker J in Shattock v Devlin.194 The judgment in Shattock did not refer to Lidgard and instead found that the court should discourage jury trials for pragmatic reasons. While sympathetic to Barker J’s views, Giles J accepted that later cases had followed Lidgard rather than Shattock,195 and found that, once the questions of law had been determined by the judge, it would be possible for a jury to satisfactorily consider the questions of fact raised by the case.196

High Court Rules, r 7.14.

However, claims for compensation for breach of the New Zealand Bill of Rights Act 1990 may be considered under the section 19B(2) discretion to direct trial by jury: Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA) at 677−678; Reekie v Attorney-General HC Auckland CIV-2008-404-5757, 21 September 2009 at [8]−[9].

Collinson v Wairarapa AA Mutual Insurance Co [1958] NZLR 1 (CA).

See, for example, Prebble v TVNZ Ltd [1993] 3 NZLR 513 (a defamation case that was held to involve difficult questions in relation to business matters, which was an investigation that could not conveniently be made with a jury).

See, for example, Siemer v Fardell CA171/07, 22 November 2007; Rawlinson v Purnell, Jenkinson & Roscoe (1996) 10 PRNZ 177 (CA) (examination of a considerable, but not vast, number of documents held not to involve a “prolonged examination”).

See, for example, Wyatt v Iversen HC Napier CP15/98, 30 June 2000 (application for judge-alone trial refused in case regarding a claim of negligence for a misdiagnosis of emphysema); X v Y [1996] 2 NZLR 196 (application for judge-alone trial refused in case regarding a claim of negligence for a treatment of a newborn).

M v L [1998] 3 NZLR 104 (HC); News Media (Auckland) Ltd v Young [1989] 2 NZLR 173 (CA).

Judicature Amendment Act 1960, s 4, introduced by s 2(5) of the Judicature Amendment Act (No 2) 1955.

Guardian Assurance Co Ltd v Lidgard [1961] NZLR 860 (CA) at 863.

McGechan on Procedure (online looseleaf ed, Brookers) at [J19B.01].

M v L [1998] 3 NZLR 104 (HC).

Guardian Assurance Co Ltd v Lidgard [1961] NZLR 860 (CA).

Shattock v Devlin (1988) 1 PRNZ 271 (HC).

See, for instance, Willis v Katavich (No 1) HC Auckland A547/85, 19 November 1987; Smith v Television New Zealand Ltd (1994) 7 PRNZ 456 (HC).

M v L [1998] 3 NZLR 104 (HC) at 124-125.