Overview of civil proceedings

Please note that the responses set out below are of a general nature and should not be relied on in the absence of specific legal advice.

How are proceedings brought?

A civil proceeding is usually commenced by filing a statement of claim in the Court closest to where a defendant resides. The District Court is now able to deal with claims up to $350,000 and claims over that amount need to be filed in the High Court.

The statement of claim sets out the main factual matters relied on in support of one or more legal causes of action against a defendant. The statement of claim must provide sufficient details to inform each defendant of the nature of the claim and the remedy being sought. If a defendant believes that there is insufficient information in the statement of claim then it may request the plaintiff to provide further particulars of the claim. If necessary, an order may also be obtained from the Court for the plaintiff to provide those details. The plaintiff will usually also have to serve a bundle of all documents referred to in the statement of claim and any additional principal documents used in preparing the statement of claim.

How are proceedings defended?

A defendant usually has 25 working days from the date on which the proceeding is served to file a statement of defence to the claim. An overseas defendant needs to consider whether to oppose the jurisdiction of a New Zealand court before filing any document in the proceeding.The statement of defence responds to each of the factual allegations in the statement of claim. Sometimes, a defendant will also set out a claim against the plaintiff (i.e.) a counterclaim and the plaintiff is then required to file a statement of defence to that claim.

A defendant may also sometimes seek to join another party into the proceeding on the grounds that the defendant has a right to relief from that party or that it has another related claim against that party which should be heard in the same proceeding.

What is a summary judgment application?

A summary judgment application is a fast track procedure which is usually sought by a plaintiff at the commencement of the proceeding to obtain judgment where a defendant has no arguable defence to some or all of the claim. The plaintiff is required to file an affidavit(s) in support of the application which sets out the factual background to the claim and why the plaintiff believes there is no defence.

If a defendant considers that it has an arguable defence to the plaintiff’s claim then it may oppose the application for summary judgment by filing affidavit(s) in opposition setting out its defence. If the plaintiff does not establish that the defendant has no arguable defence then the proceeding will continue as an ordinary proceeding with the parties undertaking discovery and proceeding to trial in the usual manner.

What is discovery?

Discovery is the process by which each party to a proceeding discloses to every other party all documentation in its control that is relevant to the issues between them.

Documentation includes written documents and electronically stored information. It also includes documents within a party’s control but not necessarily in that party’s possession, e.g. documents belonging to that party which are held by its lawyers or accountants. Confidential and/or commercially sensitive documentation is required to be disclosed although it may be possible to restrict access to such documentation. All relevant documentation must be discovered and this includes documents that adversely affect that party’s own case.

The relevant documentation is collated into an affidavit listing the documents, which is divided into different parts. The first part sets out documentation which other parties may inspect. The second part lists documents for which privilege is claimed (ie) other parties may not inspect. For example, privileged documentation includes correspondence between a party and its lawyer which records legal advice.

Each party then has an opportunity to inspect documents contained in the first part of the affidavit of documents. If a party does not provide full discovery of all relevant documents then an order may be sought from the Court requiring further discovery to be carried out. It is also possible to seek discovery against a non-party to the proceeding but this is usually ordered on the basis that the party seeking discovery will pay the non-party’s costs in providing discovery.

How is the proceeding controlled?

The Court will allocate a case management conference after a statement of defence has been filed. The purpose of the conference is to identify the issues between the parties, the scope of discovery and any other directions required for the future conduct of the proceeding.

What are interlocutory applications?

At any time prior to trial the parties may apply to the Court for orders in relation to the proceeding. For example, a party may apply to the Court for an order for further discovery of documents by another party. If the application is opposed then the Court will conduct a hearing and make a decision. The party that is unsuccessful at the hearing is likely to have to pay a contribution towards the legal costs of the successful party in relation to that application.

How does a trial work?

The Court will allocate a date for a trial and this includes a timetable for each party to present its evidence prior to trial. Generally, the plaintiff will first prepare its briefs of evidence, which set out the evidence that each of its witnesses will swear to at trial. The defendant will then prepare its briefs in response. The plaintiff will then usually prepare a common bundle of the particular documents that the parties are relying on at the trial.

The trial usually commences with the plaintiff’s counsel making an opening statement setting out the plaintiff’s claim. The plaintiff then calls each witness to read his/her written brief of evidence following which the defendant’s counsel has an opportunity to cross-examine each witness. The defendant may then make an opening statement and call its witnesses in the same manner.

After all the evidence has been heard the parties make closing submissions to the Judge based on the evidence that has been given and the relevant legal principles. The Judge will then make a decision although this is often delivered at a later date after he/she has had an opportunity to reflect on the evidence and/or the relevant law.

Who bears the legal costs in bringing or defending the proceeding?

A plaintiff may decide to discontinue its claim prior to trial but is likely to be required to pay a contribution towards the legal costs of the other parties unless there is an agreement reached that no costs will be sought. If a proceeding proceeds to a trial then the Court will usually make an order requiring the unsuccessful party to pay a substantial proportion of the legal costs and expenses of the successful party. On rare occasions a party may be awarded its actual costs.

Is it possible to appeal?

A party that is aggrieved by the Judge’s decision may file an appeal in the High Court from a District Court judgment and in the Court of Appeal from a High Court judgment.

Civil Proceedings – Peter Davey, Auckland Barrister