Schedule 1 Consequential amendments to High Court Rules 2016

s 183(a)

High Court Rules 2016

In rule 1.3(1), replace the definition of Act with:

Act means the Senior Courts Act 2016

In rule 1.3(1), definition of court, paragraph (b), replace “section 26J” with “section 148”.

In rule 1.3(1), definition of Judge, replace “section 26J” with “section 22”.

Replace rule 1.4(3)(a) with:

(a)

the enactments referred to in section 146(5) of the Act:

In rule 1.4(3)(d), replace “section 51C” with “section 148”.

After rule 1.4, insert:

1.4A Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

In rule 2.1(2), replace “section 26I of the Act” with “section 20 of the Act”.

Replace rule 2.1(3) with:

(3)

Despite subclause (1), an Associate Judge does not have jurisdiction or powers in respect of the matters specified in section 22(4) of the Act.

In rule 2.2, replace “section 26N(1) of the Act” with “section 26(1) of the Act”.

Revoke rule 2.3.

Revoke rule 2.4.

In rule 2.11(3), replace “Part 1 of the Judicature Amendment Act 1972” with “the Judicial Review Procedure Act 2016”.

In rule 3.3(3)(b), delete “despite section 54 of the Act,”.

Replace rule 4.4(3) with:

(3)

A third party notice may be issued only with the leave of the court if an application for judgment is pending under rule 12.2 or 12.3.

In rule 4.6(3), replace “Rule” with “Rules”.

In rule 5.1(d)(i), replace “Part 1 of the Judicature Amendment Act 1972” with “the Judicial Review Procedure Act 2016”.

In rule 5.64(1), replace “made under section 43, 44, or 45 of the District Courts Act 1947” with “made under any of sections 86 to 91 of the District Court Act 2016”.

In rule 5.64(2), replace “made under section 43(6) of the District Courts Act 1947” with “made under section 89 of the District Court Act 2016”.

Replace rule 5.69 with:

5.69 Transfer under section 91 of District Court Act 2016

(1)

An application under section 91 of the District Court Act 2016 must be by interlocutory application.

(2)

It must,—

(a)

if made by the counterclaimant, be made within 5 working days after the counterclaim or set-off and counterclaim is filed in the District Court:

(b)

if made by the party against whom the counterclaim or set-off and counterclaim is made, be made within 5 working days after service on that party.

(3)

At any time after an application under subclause (1) has been filed, the court may order the proceedings in the District Court to be stayed pending its disposal.

(4)

The order in subclause (3) may be made without notice and subject to any conditions or undertakings that the court thinks just.

(5)

If the court orders that the counterclaim or set-off and counterclaim alone be transferred, references in these rules to the plaintiff must be read as references to the counterclaimant and references to the defendant must be read as references to the party against whom the counterclaim or set-off and counterclaim is made.

Compare: 1908 No 89 Schedule 2 r 5.69 (as substituted by 2008 No 90 s 8)

After rule 5.73A, insert:

Subpart 15—Registration of users for e-filing purposes

5.74 Interpretation

In this subpart and in subpart 16, unless the context otherwise requires,—

e-file means to file a document electronically (as those concepts are defined in rule 1.3)

formal undertaking is an undertaking by a party or a party’s solicitor on the record to do or abstain from doing some specified thing

registered user means a lawyer or a firm of lawyers registered to e-file documents under these rules

working hours means hours, whether on the same day as the day on which a document was received in a registry or on that day and the next day during which the registry of the court is open.

5.75 Registration procedure

(1)

A lawyer or a firm of lawyers may apply in writing to a Registrar for registration under this subpart.

(2)

The Registrar must register the applicant as a registered user if—

(a)

the applicant has, in the Registrar’s opinion, instituted sufficient measures to prevent unauthorised persons filing documents in the applicant’s name; and

(b)

the applicant has nominated an acceptable electronic address for service; and

(c)

the applicant’s name is sufficiently distinctive to avoid confusion between the applicant and another firm or lawyer (including that part of a partnership that has an office in a different place).

(3)

The Registrar may require an applicant to supply the names of those persons who are, from time to time, authorised to e-file on behalf of the applicant.

(4)

No fee is chargeable for registration.

(5)

When granting the application, the Registrar must—

(a)

assign the registered user an electronic identity for use whenever a document is e-filed; and

(b)

open an account in the name of the registered user.

(6)

The Registrar must keep a register recording the name, electronic address for service, and electronic identity of each registered user and the date of that user’s registration under this subpart.

(7)

The register kept under subclause (6) may be searched by or on behalf of a registered user.

5.76 Effect of registration

(1)

A registered user may e-file any document that complies with subpart 16.

(2)

A registered user may file any document in hard copy by physical lodgement (whether or not that document has already been e-filed).

(3)

If there is any difference between the content of an e-filed document and the filed hard-copy version of the same document, the hard-copy version prevails, and the document is treated as filed when it is physically lodged.

5.77 Renewal of registration

Registration lasts 36 months and is then renewable.

Subpart 16—E-filing documents

5.78 Requirements for e-filing

(1)

A document may be e-filed if it complies with this rule.

(2)

An electronic communication sent with a document for e-filing must be authenticated by a current electronic identity assigned by the Registrar.

(3)

A document that is e-filed, and any electronic communication by which the document is e-filed, must comply with the requirements set out in a practice note issued by the Chief Judge or by a list Judge for a particular registry of the court with the approval of the Chief Judge.

(4)

The practice note may also limit the number of documents that may be filed on a single occasion or in a stated period, and impose other requirements to ensure that electronic filing is convenient to registered users and is efficient and reliable and causes no injustice to other parties.

(5)

A document that is e-filed other than in imaged form need not comply with the rules as to shape, size, and format in subpart 2 (formal requirements for documents).

(6)

A document that is e-filed in imaged form must comply with subpart 2.

(7)

An e-filed document must be adequately labelled so that it is obvious what it is (for example, “Interlocutory application without notice for interim injunction”).

(8)

If, under these rules, a document can be filed only if it is signed or otherwise authenticated, use of the registered user’s electronic identity to authenticate the electronic communication sent with the document must be treated for all purposes as equivalent to that user’s signature or other authentication of that document.

(9)

This rule is subject to rule 5.81.

5.79 Provisional filing

(1)

An e-filed document must be treated as provisionally filed on the date and at the time it enters the information system designated for this purpose in the applicable practice note issued under rule 5.78(3), and that date and time must be recorded on the court file.

(2)

The Registrar or a Deputy Registrar must ensure that every provisionally filed document is checked to ensure it meets the requirements imposed by this subpart and by that practice note.

(3)

Checking must—

(a)

be completed within 2 working hours of the provisional filing of an e-filed document; and

(b)

comply with operational standards not conflicting with this subpart issued by the Ministry of Justice and available on request to registered users and any person considering registration under subpart 15 or the practice note issued under rule 5.78(3).

5.80 Acceptance of provisionally filed documents

(1)

Acceptance of a document by the Registrar or a Deputy Registrar must be recorded by dating and timing that acceptance and endorsing the document “Accepted for filing” and verifying that date, time, and endorsement.

(2)

The Registrar must immediately notify the registered user if an e-filed document is not accepted.

(3)

If an e-filed document is accepted it must be treated for all purposes as having been filed on the date and at the time when it is recorded as having been provisionally filed.

(4)

Upon acceptance of an e-filed document, the Registrar must direct debit the registered user with the appropriate fee for filing that document.

5.81 Affidavits and formal undertakings

(1)

An affidavit or a formal undertaking may be e-filed if the e-filing complies with this rule.

(2)

If an affidavit or a formal undertaking is being e-filed, it must be transmitted to the court in imaged form.

(3)

Rule 5.78(2), (3), and (7) applies to the e-filing of an affidavit or a formal undertaking.

(4)

The original hard-copy form of the affidavit or formal undertaking, sworn or signed or authenticated as required by these rules, must be retained by the registered user,—

(a)

if the affidavit or formal undertaking is filed in connection with an application under Part 18 or 19, or in a proceeding that does not go to trial, for 12 months from the date of e-filing:

(b)

if it is filed in connection with a proceeding, and that proceeding goes to trial, until no appeal or further appeal from a judgment given in that proceeding is possible.

(5)

If uncertainty as to the content of an affidavit or formal undertaking arises, or a Judge considers that justice requires its production, the Judge, on application or on the Judge’s own initiative, may order that it be filed in court and served on the other party or parties in hard copy form, and may make such order as to a further hearing as the Judge thinks just.

Revoke rule 6.19(2).

Replace rule 7.1AA(5) with:

(5)

An application for judicial review may be subject to case management under section 13 of the Judicial Review Procedure Act 2016 and any rules relating to the case management of those proceedings.

In rule 7.16, replace “section 19A” with “section 16”.

In rule 7.49(2)(b), delete “; or”.

Revoke rule 8.9(b).

In rule 9.32(2), replace “section 100(1)” with “section 44(1)”.

In rule 9.53, replace “section 56A(3)” with “section 41”.

Replace rule 10.24(1) with:

(1)

A Judge may, by video link, preside at the hearing of any matter referred to in section 20 of the Act.

In rule 15.20(1)(a)(iii), replace “section 8 of the Judicature Amendment Act 1972” with “section 15 of the Judicial Review Procedure Act 2016”.

In rule 17.40(2), replace “form E 4, form E 5, or form E 6” with “form E 4, E 5, or E 6”.

In rules 17.88(1), 17.89(1), and 17.90(1), replace “section 55” with “section 40”.

In rule 19.2(c), replace “299,” with “and 299,”.

Replace rule 19.2(g) with:

(g)

section 89 of the District Court Act 2016:

Replace rule 19.2(k) with:

(k)

section 172 of the Senior Courts Act 2016:

In rule 20.13(5),—

(a)

replace “under the District Courts Act 1947” with “under the District Court Act 2016”; and

(b)

replace “under section 74” with “under section 126 of that Act”.

In rule 23.1(2)(b), replace “(section 56 of the Judicature Act 1908)” with “(see section 172 of the Senior Courts Act 2016)”.

In rule 23.1(3), replace “under section 56(4) of the Judicature Act 1908” with “under section 172(5) of the Senior Courts Act 2016”.

In rule 28.7(1), replace “section 56G of the Act” with “under section 84 of the Trans-Tasman Proceedings Act 2010”.

In rule 28.11(3)(b), replace “section 56D of the Act” with “section 81 of the Trans-Tasman Proceedings Act 2010”.

Revoke Part 29.

In rule 30.3(1) and (2), replace “under Part 1 of the Judicature Amendment Act 1972” with “under the Judicial Review Procedure Act 2016”.

In rule 31.39, replace “coming into force of these rules applies” with “commencement of the Schedule of the Judicature (High Court Rules) Amendment Act 2008 applies”.

In Schedule 1, form G 22, paragraph 5, replace “under section 56G of the Judicature Act 1908 of New Zealand. Section 56G of the Judicature Act 1908 provides” with “under section 84 of the Trans-Tasman Proceedings Act 2010 of New Zealand. Section 84 of the Trans-Tasman Proceedings Act 2010 provides”.

In Schedule 1, form G 23, paragraph 2, statement A and statement B, replace “section 56 of the Judicature Act 1908” with “section 84 of the Trans-Tasman Proceedings Act 2010” in each place.

Insert the following Schedule 1AA as the first schedule to appear after the last rule of the principal rules:

Schedule 1AA Transitional, savings, and related provisions

r 1.4A

Part 1 Provisions relating to Senior Courts Act 2016 as enacted

1 References to enactments not yet in force

(1)

A reference in these rules to an enactment not yet in force (enactment A) is, until enactment A comes into force, a reference to the provision that (with or without modification) enactment A will replace or that corresponds to enactment A.

(2)

To avoid doubt, subclause (1) does not affect the application of section 22 of the Interpretation Act 1999 (references to repealed enactments).

(3)

In this clause, enactment means the whole or a part of the Senior Courts Act 2016, the District Court Act 2016, the Judicial Review Procedure Act 2016, the Interest on Money Claims Act 2016, the Electronic Courts and Tribunals Act 2016, or any other Act, regulations, or rules.

2 Other transitional provisions applying

(1)

Part 2 of Schedule 5 of the Senior Courts Act 2016 contains further provisions about how proceedings that are begun before the Senior Courts Act 2016 comes into force are to be dealt with, including—

(a)

the High Court Rules under which those proceedings are to be continued, completed, and enforced:

(b)

the application of Part 2 of the former High Court Rules (which relates to the Commercial List):

(c)

the continued effect of certain transitional provisions in the former High Court Rules.

(2)

In this clause, former High Court Rules means the High Court Rules as in force immediately before the commencement of this clause.