Chapter 9 - Civil jury trials in the High Court

Use of civil jury trials in New Zealand

Although sections 19A and 19B of the Judicature Act 1908 have been used and relied upon in the past, these days civil jury trials are seldom used in New Zealand. The Ministry of Justice’s electronic Case Management System, which was introduced in 2003, records that in the last eight years only three civil jury trials actually took place in New Zealand.197  Eight cases had initially been scheduled for a civil jury trial during that time. Four of those eight cases proceeded to trial, but only three civil jury trials took place, as two of the cases were heard together in a single trial. Four cases were discontinued before trial.

Sections 19A and 19B are now most commonly invoked in defamation cases.198 In seven of the eight cases referred to above, the cause of action was defamation; one was a claim for damages resulting from imprisonment and assault by Police.

Where defamation proceedings are tried before a judge and jury, the judge must determine, on the basis of the evidence, whether the words complained of are reasonably capable of referring to the plaintiff. The question of whether or not the words complained of refer to the plaintiff is a question of fact to be determined by the jury.199

Similarly, the judge must rule on whether the words used are, in the circumstances, reasonably capable of bearing a defamatory meaning in the minds of reasonable persons. If they are, the jury determines whether the words did in fact bear such a meaning.

The submissions of the parties on whether the matter in question is capable of a defamatory meaning, and the ruling of the judge on that issue must be made or given in the absence of the jury.200 The jury assesses the level of damages to be awarded to a successful plaintiff.201

Applications for civil jury trials are rare, and most applications for a civil jury trial since 2005 have been declined, with the courts finding that either the grounds in section 19A(5) apply or that the matter can more conveniently be tried by judge alone under section 19B.202

The most likely reason for the rare use of civil juries in New Zealand is the accident compensation scheme and the corresponding lack of tort liability for accidents. Personal injury claims, and motor vehicle claims particularly, have made up a significant proportion of civil jury cases overseas. These types of claims are not tried in New Zealand because of the accident compensation legislation.

Email from the Ministry of Justice to the Law Commission (16 August 2011).

For example, Television New Zealand Ltd v Haines CA96/06, 6 September 2006; Haines v Television New Zealand Ltd HC Auckland CIV-2002-404-2102, 5 April 2006; Television New Zealand Ltd v Quinn [1996] 3 NZLR 24 (CA); Television New Zealand Ltd v Prebble [1993] 3 NZLR 513 (CA).

Laws of New Zealand Defamation (online ed) at [215].

Defamation Act 1992, s 36.

Delaney v News Media Ownership Ltd [1976] 1 NZLR 322 (SC).

Reekie v Attorney-General HC Auckland CIV-2008-404-5757, 21 September 2009; Berryman v Attorney-General HC Wellington CIV-2006-485-751, 31 July 2009; Gregory v Gollan SCNZ SC4/2009, 30 March 2009; Gregory v Gollan (2008) 19 PRNZ 450 (CA); Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 23 October 2008; Siemer v Fardell CA171/07, 22 November 2007; Siemer v Fardell HC Auckland CIV-2003-404-5782, 3 April 2007; Television New Zealand Ltd v Haines CA96/06, 6 September 2006; Haines v Television New Zealand Ltd HC Auckland CIV-2002-404-2102, 5 April 2006; Order of St John Northern Regional Trust v Gemini 10 Ltd HC Auckland CIV-2002-404-1559, 16 August 2005.