Tēnā koutou

Justice Susan Thomas

The stakeholder meetings I held in Auckland, Wellington, Christchurch and some circuit courts this year provided a valuable opportunity to engage directly with members of the profession and to hear your concerns and experiences of working in the High Court. They also gave me the opportunity to explain the pressures facing the High Court and the steps we are taking in the criminal and civil jurisdictions to improve case management.

The experience emphasised to me the importance of understanding one another’s perspectives. The purpose of this article is to explain the High Court’s perspective to a wider audience, to outline the measures put in place to help the Court run as smoothly as possible, and to highlight how counsel can assist us in this aim.

Ngā mihi

Justice Susan Thomas

Chief High Court Judge

The High Court

The High Court is an extremely busy court. The 40 High Court Judges, plus the four Judges with full time acting warrants¹ are based in three home registries, Auckland, Wellington and Christchurch, and sit on circuit in 15 cities across Aotearoa New Zealand. High Court Judges sit in both the civil and criminal jurisdictions. Senior High Court Judges also sit on divisions of the Court of Appeal.

Our seven Associate Judges have a specialist civil jurisdiction. In their insolvency jurisdiction, they hear applications relating to bankruptcies and company liquidations as well as other applications under the Insolvency Act 2006 and Companies Act 1993. Associate Judges determine a range of claims including applications for summary judgment, to sustain caveats and to strike out claims or stay proceedings on jurisdictional grounds.

They play an important role in civil case management including dealing with applications concerning discovery, requiring more detailed claims or defences, and for security for costs.

Despite the challenges of COVID-19, workforce issues across the justice sector agencies, and other external disruptions, in 2022, the High Court:

1. disposed of 126 criminal trials and 1,346 criminal appeals;
2. disposed of 1,851 civil proceedings and 217 civil appeals; and
3. delivered 3,583 judgments (1,695 criminal and 1,888 civil).

The criminal jurisdiction

The High Court deals with the most serious criminal charges including murder, manslaughter, attempted murder, and serious sexual, drug and violent offending. It conducts all sentencings in which preventive detention is a possible outcome.

The implications of COVID-19 were acutely felt in the criminal jurisdiction, most obviously jury trials. Given the seriousness of the charges dealt with in the High Court, most defendants are remanded in custody awaiting trial. Their right to be tried without undue delay as well as the interests of victims, complainants and witnesses required the High Court to give priority to dealing with COVID-19-affected trials.

As a result of the considerable effort of all involved including the Crown, defence counsel and the Court, all but one COVID-19 rescheduled cases have now been completed.²

Although our trial numbers are now similar to those pre-COVID, trials themselves are lasting longer for reasons such as multi-defendant trials, increased complexity, and increased numbers of charges. The case type has changed markedly following a sharp increase in Category 4³ charges, with the consequence that we are unable to retain protocol cases⁴ at the same levels as previously.

Criminal case management

The High Court closely manages its criminal trials.

At the first appearance in the High Court, a trial date is allocated on the first date available for the location and expected duration of the trial. This is regardless of whether resolution is under discussion or whether issues concerning fitness to stand trial are to be investigated. We do this to ensure that the earliest possible trial date is reserved and that the trial does not lose its place in the queue. Counsel are consulted on trial dates and every effort is made to accommodate their availability, within the interests of justice and the defendant’s right to be tried without undue delay.

“Although our trial numbers are now similar to those pre-COVID, trials themselves are lasting longer for reasons such as multi-defendant trials, increased complexity, and increased numbers of charges”

The seriousness and complexity of the charges tried in the High Court mean the prosecution and defence usually require a minimum of 12 months to be ready for trial. The earliest available dates for criminal trials requiring up to 15 days currently range from 12 to 19 months from the first appearance. Dates are further out in some circuit courts as a result either of limited courtroom availability or where there are several multidefendant trials requiring significant hearing time.

The High Court aims to address pre-trial applications in good time prior to trial and we urge counsel to give early consideration to pre-trial issues. Late pre-trial applications are disruptive to the trial and discourteous to jurors if time has to be spent during the trial addressing matters which should have been dealt with pre-trial. They also risk a trial overrunning.

A trial overrun is a significant problem. Obviously, the trial must continue but any overrun will have implications for the criminal and civil work scheduled to follow it.

Counsel will understand, therefore, the importance of accuracy in their trial estimates and of identifying pre-trial applications during the callover process.

Disclosure

Following the report of the High Court Criminal Disclosure Working Group, which included representatives of the New Zealand Police, Crown prosecutors and the defence bar, I issued the High Court Criminal Disclosure Practice Note in March 2023. Its purpose is to require the Crown and defence to address disclosure issues at an early date to avoid late disclosure. Late disclosure puts enormous pressure on counsel, the alternative being the trial is adjourned or the evidence cannot be called. Early signs are that the Practice Note is making a real impact. Its most important feature is the requirement for Crown and defence counsel to meet. This has resulted not only in disclosure issues being addressed earlier but also in the identification and, in some cases resolution, of other issues.

Specialist reports

We are all concerned at delays in obtaining specialist reports, particularly those addressing fitness to stand trial and those required for consideration of a sentence of preventive detention. The Ministry of Justice is working with Te Whatu Ora and the Department of Corrections to agree improvements to the timing and delivery of reports.

High Court civil jurisdiction

The High Court civil jurisdiction includes general proceedings, judicial reviews, originating applications, appeals from the District, Environment and Family Courts and other specialist tribunals, and applications for injunctions and freezing orders.

The civil jurisdiction was adversely affected by COVID-19, but to a somewhat lesser extent than criminal. Work to address the availability of early hearing dates has seen an improvement in our earliest available dates for short cause work (five days or less) and we are implementing changes in case management to free up hearing time generally.

Cases requiring significant amounts of hearing time are increasing which has a major impact on our ability to schedule work (as well as having implications for judgment writing time).

The High Court will, of course, always make time available for urgent matters.

Civil case management

The Senior Courts (High Court Commercial Panel) Order 2017 sets out a procedure whereby certain types of commercial proceedings are assigned to a Commercial Panel Judge for case management and hearing. Proceedings covered by the Order include high value disputes (over $2 million), complex matters of commercial law, and proceedings brought by public authorities to enforce regulatory standards of commercial behaviour.

We have now moved to a system whereby more cases will be assigned to High Court Judges for case management. This includes complex cases (not assigned to the Commercial Panel) – for example, cases involving extensive expert evidence – and others that would benefit from intensive case management including some cases involving litigants in person. This decision will be made at the r 7.3 first case management review.

The intention is to ensure cases are better prepared for hearing and to allow those that should resolve prior to trial do so at an earlier stage, thereby removing them from our case list and freeing up time.

Standard timetabling directions have changed. Except where otherwise warranted, the close of pleadings date is fixed shortly after it is anticipated that interlocutory matters will be completed. The timetable for the exchange of briefs of evidence then works forward from the close of pleadings date rather than backwards from the trial date. This approach compels counsel and parties to focus on the issues earlier in the life of the proceeding and promotes early settlement. It is also a move towards the new procedure recommended by the Rules Committee.

As cases resolve earlier, we will be able to bring cases on for hearing sooner than scheduled if they are ready.

How counsel can help

We rely on information from counsel when scheduling. Please be realistic and as accurate as possible about hearing time estimates. Part-heard cases cause us real problems. Civil and criminal work is scheduled so far in advance that it is extremely difficult to find time close to the original hearing date for a part-heard case to resume. If it is apparent that a case will require more time than has been scheduled that fixture may need to be vacated. That will not be in the parties’ best interests and I am sure counsel will do their best to avoid this.

Counsel are encouraged to agree a timetable of how a hearing will run including time for oral submissions. This should ensure counsel turn their minds to the management of hearing time and that the trial can run according to the timetable.

Marine and Coastal Area (Takutai Moana) Act 2011

Marine and Coastal Area (Takutai Moana) Act 2011 hearings relate to the recognition of Māori customary rights in the foreshore and seabed arising from exclusive use in occupancy of the relevant part of the Takutai Moana since 1840. There are around 200 such claims.

Hearings are conducted in accordance with tikanga with the involvement of Pūkenga (experts). The complexity of the overlapping claims requires significant hearing time and substantial time for judgment writing.

An informal panel of Judges with relevant experience has been formed. I have also signed a protocol with the Chief Judge of the Māori Land Court to address a procedure for the High Court in appropriate cases to state a case to the Māori Appellate Court seeking the Māori Appellate Court’s opinion on a question of tikanga. This is provided for under the Act.

Criminal Proceeds List

Applications under the Criminal Proceeds (Recovery) Act 2009 can be complex and lengthy. The documentation involved is voluminous and the cases take considerable time to reach finality, particularly given they are usually dependent upon conclusion of associated criminal charges in the District or High Court. To assist in better case management, these cases will now be managed in criminal proceeds lists to be held in Auckland and Wellington.

Registries under pressure

Like other government departments, the Ministry of Justice has had issues with the recruitment and retention of staff. Although significant progress has been made to fill registry vacancies, the training and development of new staff remains a work in progress.

While your first query about any issues or delays should be to the relevant case officer, please contact the relevant Court Manager if a problem persists.

Concluding remarks

The Judges and staff of the High Court are dedicated to ensuring our work is managed and undertaken as efficiently and smoothly as possible. The measures outlined above have been put in place with that as their aim in order to improve access to justice. The hard work and cooperation of counsel are fundamental to the effective operation of the Court and I am grateful to you all for your continued commitment.

1. The acting warrants, and one Judge with a part-time acting warrant, were made possible as a result of COVID-19 funding and expire in December 2024.
2. The September 2023 trial was aborted.
3. Category 4 charges include murder, manslaughter and attempted murder, which must be tried in the High Court.
4. Protocol cases are those category 2 and 3 which must be considered for transfer to the High Court.