General information



The Law Commission has a reference from the Minister of Justice to review the Judicature Act 1908, and the other legislation governing the operation of the New Zealand courts of general jurisdiction, with a view to creating a consolidated Courts Act and updating and reorganising other provisions of the Judicature Act 1908.

The principal focus of this review is, therefore, on reorganisation, consolidation, and modernisation. It is not the intention that the Commission should revisit major matters of policy underlining the present legislation, such as the structure of the courts or matters of that character.

Since it was enacted, the Judicature Act 1908 has been raddled with amendments, the antecedents of which are often difficult to follow as they have become lost in the mists of time. Other legislation governing the courts of general jurisdiction has also been passed. As a result, we now have a distinctly patchwork quilt appearance of statutes relating to our trial and appellate courts, some of which overlap in various respects, or have problems or gaps in them. Some provisions have become redundant or outmoded. Consequently, a New Zealand citizen will have grave difficulty trying to appreciate the picture as a whole, and even trained lawyers routinely have difficulty with some aspects of the relationships between the various courts and jurisdictions.

This is not satisfactory from a constitutional point of view. A clear and unproblematic regime for the architecture and relationship of the New Zealand courts is vital to the very basis of this arm of government. The present situation also has the potential to impede access to justice: all citizens are bound by the law and all are entitled to resort to a court to enforce lawful obligations. It is undesirable that citizens and their legal representatives should have to struggle to piece together the whole picture from diverse statutory sources.

At a more pragmatic level, inevitably when there are individuated statutes for individuated courts there will be gaps or ‘rubs’ between them, or particular problems emerge over the passage of time which could stand attention, although they would not warrant an isolated statutory intervention. Other provisions simply become outdated and need modification. At least in this instance, consolidation and revision can and should go hand in hand.

The ultimate objective of this reference is to establish in one place, in clear and modern terms, the institutional and architectural basis of each of the New Zealand courts of general jurisdiction.

A task of this kind involves an exercise in judgement as to what is within the reference and what is not. Where we have been in doubt about whether a provision should be repealed or modified, we have tended to retain the status quo. We have been anxious not to give rise to substantive law changes by a side-wind. Sometimes we note difficulties with a provision, but indicate that reform, if called for at all, would be better undertaken in a different context, or by a further limited reference.

However, there are some areas in which we suggest changes which go beyond the consolidation of existing legislation. In particular, there are proposals made in relation to the appointment of judges, the possible abolition of civil jury trials, changes in the approach taken to vexatious litigation, wasted costs, and the constitution of a single District Court. We welcome submitters’ comments on all of these matters.

In preparing this paper, we have had the benefit of views expressed by the heads of the various benches of the relevant courts as to any problems they see in the existing legislation. The release of this paper provides an opportunity for others, particularly members of the legal profession and the public, to comment on any matters raised, and identify other issues of concern and possible solutions. After further consultation, the Commission will issue a final report, setting out our recommendations.

We intend to include a complete draft bill for a new Courts Act in our final report (although this is dependent on drafting resources). This Issues Paper includes some draft provisions, where we have reached a preliminary view that new provisions may be helpful and that draft wording would be useful for consultation purposes. These also show that generic provisions relating to all courts are possible and useful.

Finally, I note that in March 2011, as part of this reference the Commission published Issues Paper 21, Towards a New Courts Act – A Register of Judges’ Pecuniary Interests? The Commission will make its recommendations on that subject in our final report on this matter.


Signature of Justice Grant Hammond

Hon Sir Grant Hammond KNZM
President of the Law Commission