Slowly Perhaps, Carefully for Sure: The Wheels of Justice

The wheels of justice often turn surprisingly slowly for some.

They also turn carefully however, and care would seem more important. Justice is principally about rightfulness after all, not speediness. But where is the justice in court decisions that arrive so late or at such a cost that they are not worth pursuing in the first place?

The difficulty then becomes that familiar balancing act or ‘project management triangle’ of time, cost and scope. All three factors are recognised by the objective of the High Court and District Courts Rules: “…to secure the just, speedy and inexpensive determination” of the matters before those Courts. The three factors in fact would appear to influence much of the day to day operation of the justice system in general from court fees to disclosure protocols to timetable directions.

If fairness is treating likes alike and differents differently then it may explain why cases are divided into categories, with each category having its own bespoke requirements. Criminal cases are not dealt with in the same way as cases before the family court, and civil disputes are different again.

Civil disputes are divided up by value. Claims of up to $15,000 can go before the Disputes Tribunal, which can in fact extend its jurisdiction up to $20,000 if all disputants agree. The District Court can hear claims of up to $200,000, and claims above that must go before the High Court. Claims in the Disputes Tribunal begin when a claim form is filed together with two additional copies and appropriate filing fee (the amount of the fee depends on the value of the claim). The Tribunal then sends a copy of the form to the other disputant and a notice of the hearing date to both.

The disputants are recommended to prepare their arguments and any evidence before the hearing, but there is no requirement to file these in the Tribunal or disclose them to the other side prior to the hearing. Judicial forums in New Zealand generally do not like surprises, so the lack of any requirement for disputants to show all their cards before they play them is unusual.

Perhaps the need for speed is of greater importance for claims of Disputes Tribunal value, with disclosure requirements foregone in exchange for shorter wait times to hearings. The lack of disclosure may be countered by the Tribunal being more inquisitive than other forums: It often goes further than listening to both sides by actively examining their arguments and the facts supporting them.

The District Court process is quite different. Claims usually begin when a Notice of Claim form is filed together with a copy for each disputant and filing fee (unless waived by the Court). The Court then completes the Notice and returns the copies to the disputant that filed it (the plaintiff), who must then serve the Notice on the others involved (the defendants) within a year.

Defendants have 20 working days to serve a Response form on plaintiffs. The time runs from the day after they are served with the Notice of Claim and, if they do not meet that deadline, then they may have judgment entered against them by default.

Plaintiffs served with a Response have their own 20 working day deadline to prepare and serve their evidence on the defendants. This takes the form of an information capsule that contains replies to arguments raised, documents to be relied on and witness statements.

Defendants served with an information capsule then have another 20 working days to prepare and serve theirs. The disputants are therefore required to explore each others arguments at an early stage.

A judge does not normally get involved in a District Court case until information capsules are exchanged and the plaintiff files a Notice of Pursuit of Claim. One of two things can happen after that: The case is either set down for a judicial settlement conference or otherwise a short trial.

Short trials are reserved only for the simplest cases that would last around half a day in the courtroom. Little need be prepared beyond what would have gone before the Notice of Pursuit of Claim is filed.

Judicial settlement conferences are required for more complicated cases. The parties sit down with a judge to try and negotiate a resolution, but if none is agreed then the judge will set the case down for a simplified or full trial.

Simplified trials are appropriate where there are relatively few issues and witnesses. Disclosure and presentation of evidence and argument are all more restricted than a full trial, which largely follows the procedure set out in the High Court Rules. That, like a High Court trial, is a far more involved process with extensive procedural steps leading up to trial.

Discovery of evidence is one of the more salient features of a High Court trial. Standard discovery involves the disputants going through all their documents, computer records, email and other evidence for information that is relevant to their case. Essentially, they must identify what evidence they would rely on and what would adversely affect their case, then catalogue it and disclose it to the other side. For large organisations it can be a massive task that takes years to complete, although technology and adjustments to discovery rules may reduce the time involved.

The pattern that emerges is that more care is taken where more is involved be it more issues, more evidence or more value. ‘Care’ tends to translate into ‘time’, although shortcuts are available for interim measures, avoiding certain procedural steps and partial or even full resolutions where a disputant has a hopeless case.

The courts tend to approach applications for shortcuts with the same degree of care as the cases those applications relate to however. Justice must be done and be seen to be done, although in very rare cases involving extreme urgency the courts might almost seem to shoot first and ask questions later.

Those kinds of decisions are usually underpinned by an extraordinary amount of background work by lawyers before the application is filed though, and all to do with satisfying the court that is should be granted. The bar for these kinds of urgent applications is set very high but illustrate that, so long as all due care is taken, the wheels of justice can sometimes turn very quickly indeed.