This page explains the structure of the New Zealand court system and heirarchy, from the District Court up to the Supreme Court, and other relevant tribunals.
Please note the information is generalised, provided as at February 2023 only, and is not legal advice.
For any potential court situation, specific advice should always be sought.
Are the NZ Courts independent?
Absolutely. New Zealand has three distinct branches of government that operate independently from one another. These branches are legislature (Parliament, who make laws by passing statutes), the Executive – meaning Cabinet and Ministers (in a coalition some may be outside Cabinet) plus government departments, like the police, who enforce the laws, and finally the Judiciary (our court system, which applies and interprets those laws).
Although state funded and paid, New Zealand has a strong history of independent judges who believe in the rule of law and are willing to hold the other branches of government to account when necessary. Bear in mind, though, that ultimately Parliament is the supreme branch and if it passes a clear law by valid majority of MPs, the Courts cannot overturn it or strike it down. However, they may sometimes interpret its wording narrowly in specific cases, a process sometimes described as ‘reading it down’.
New Zealand has an adversarial court system, where in most cases counsel for each side of the dispute will present their evidence and argue their case before a judge who knows at the outset little about the matter. That Judge then makes their decision based on what evidence and arguments is presented to them; not usually going into their own inquisitorial lines of enquiry outside the bounds of what the parties choose to present.
What court sits at the top of the NZ tree?
We have a hierarchical court structure, derived from the British system, with rights of appeal up the tree. The Supreme Court sits at the top, and it was established in 2004 to replace the old English Judicial Committee of the Privy Council. Below that sits the Court of Appeal, the High Court, and the District Court, in that order. These are our main courts which all have a general jurisdiction, meaning they deal with the whole range of civil and criminal cases that society may throw up for resolution.
New Zealand also has a number of specialist courts that sit below, or at an equal level to, the District Court. Often they will be located in the same physical building as a District Court. Examples include the Environment Court, Youth Court or Family Court.
How do appeals take place?
Depending on which court the matter starts off in (frequently, the District Court) there is normally one appeal as of right available to the losing party, and then one further appeal possible if leave to appeal is granted by the appropriate judge(s).
As the court of final appeal, the Supreme Court is the end of the road for litigants, and it concentrates on cases having a wide impact, raising crunchy policy questions, or important to maintaining overall coherence in the legal system.
Appeals to the Supreme Court can be heard only with the leave of that court. It must give leave to appeal only if it is satisfied that it is necessary in the interests of justice; in any given year it will usually refuse leave to appeal in more cases than it will allow. In practice, this means that for many disputes the Court of Appeal (usually sitting in divisions of 3 judges) may end up the final appellate body for that particular issue, and so its rulings and precedents can be very important too.
Which court should I begin my case in?
Which court to make a claim in depends on a number of factors, so there is not an automatic choice. Key issues include:
- the value of the claim – where it is a small claim up to NZ$350,000, the District Court or even the Disputes Tribunal (up to NZ$30,000) may be the appropriate and likely choice;
- for larger value claims, the High Court is the place to commence a claim for most litigants; you cannot originate a claim in the Court of Appeal;
- what the claim is about – certain types of jurisdiction/areas of law, for instance Insolvency and Company Liquidations, must go to the High Court, and in addition there are many specialist tribunals and other courts (e.g. Employment Court) that are dedicated to particular issues of law.
For civil claims involving commercial cases or money claim, the person starting a case will be called the plaintiff, and the one being sued the defendant. It may also be the case that you cannot personally bring a claim for some kinds of issue. For example, criminal proceedings are brought by the Crown/Police or another government agency authorised under a statute. It is rare for private prosecutions to occur, and they generally require leave of the NZ Attorney-General before going ahead.
Can documents be sent electronically?
Delays in hearing cases are always a problem, especially in the District Court which handles a huge volume of criminal cases. Since Covid, the Ministry of Justice is finally investing to push the courts from paper/manual process towards online electronic systems. After a case has been commenced, many things can be achieved by electronic filing of documents, and sometime be direct email with the Court Registrar or Case Officers. But the systems remain a bit patchy.
It is best practice to start the case (first documents for a plaintiff or defendant) in paper hard copy form, as well as electronic. Your barrister can advise, depending on the specific case situation. There may be Court filing fees to pay as well.
Documents must be “filed” with the correct office of the court, and then “served” on the other parties (i.e. formally delivered or brought to their attention). After the first documents begin the case, electronic filing options are usually much improved from there.
A major Digital Strategy for Courts and Tribunals is being developed, hopefully to begin roll-out in 2023. The judiciary has clear objectives to improve use of technology in the courts. How fast this will happen, and how effectively, lies mainly with the Ministry of Justice. Ultimately, there remains a verbal hearing element and core of human qualities inherent to the NZ model of justice.
What do Tribunals do, compared to Courts?
Tribunals are a specific type of dispute resolution forum, created by lots of different statutes. Each will be set up to deal with a particular sector or topics – and usually tasked with trying to persuade warring parties to compromise or, if not, then administer justice in a common-sense way. They can address nuances of each individual case, and bring some finality to the dispute. Increasingly, they are in the in the front line of problems over access to justice and growing numbers of unrepresented litigants. The Courts can supervise them, via the mechanism of Judicial Review.
How are Tribunals organised?
There is a loose umbrella organisation known as Tribunals Aotearoa, representing abut 45 different Tribunals. But in fact Ministry of Justice data suggests there are over 100 tribunals, disciplinary and licensing bodies, or other authorities in this category. Their main organising force is the particular statute that set them up or controls what they can do. Tribunals range from consumer or specialist dispute resolution forums, to those offering specific appeals or administrative decision-making review, to those handling professional and vocational quality control. A host of different government ministries and funding agencies may sit behind, funding and supporting them, as these tribunals cover such a broad range of subject matters.
How can people access the appropriate Tribunal?
Each year, the reality is that most people get their measure of civil justice, or experience of a ‘hearing’ via one of these myriad tribunals – rather than through the courts. It is a lot cheaper. And they can use more flexible and informal procedures. Tribunals can make use of specialised knowledge and often appoint leading sector experts to be part of the hearings/decisions.
Although for most of these tribunals you do not need a lawyer to represent you, there can be real benefits in working with an experienced person who knows how to position your case/arguments for the most persuasive outcome.
Here are just some of the Tribunals where Gary has had experience:
- Banking & Financial Services Ombudsmen
- Private Investigator and Security Services Personnel Authority (along with other industry/vocation licensing & disciplinary tribunals)
- Weathertight Homes Tribunal
- Media Council (formerly the ‘Press Council’)
- Motor Vehicle Dealers Tribunal
- Advertising Standards Authority
- Human Rights Review Tribunal (only for Privacy claims)
- Immigration & Protection Tribunal (only in cases where financial crime is alleged)