How are the Courts Operating During the Covid-19 Lockdown?

The Chief Justice of the Supreme Court, the Right Honourable Helen Winkelmann, has assured the legal profession and members of the public that the Courts will be operational during all Covid-19 alert levels, including lockdown during alert level 4:

       "Courts are an essential service. New Zealand courts must continue to uphold the rule of law and to ensure that fair trial
         rights, the right to natural justice and rights under the New Zealand Bill of Rights Act are upheld."

However, necessary changes have been implemented to keep the Courts running safely while ensuring that justice is administered.  

Only Priority Proceedings to be Heard

The heads of bench have decided that only proceedings affecting the liberty of the individual or their personal safety and well-being, or proceedings which are time-critical, should be heard while we are at alert level 4. Selection of priority proceedings are guided by these over-arching principles:

     -     Liberty of the individual;

     -     Protection of the at-risk or vulnerable, including children;

     -     The national and community safety interest; and

     -     Facilitating and promoting public order.

Most civil proceedings have therefore been adjourned by the Courts to such time after the lockdown is anticipated to end. Lawyers are being notified about each case individually by Court Registrars or Case Officers.

Remote Participation to be Used Predominantly

To the maximum extent possible, and to avoid the need for people to attend Court in person, the Courts will use remote participation to hear those priority matters. Remote participation may involve AVL (audio-visual link) where possible, or telephone or email.

Where physical appearances are required at the Courts, safety of the public, Court staff and members of the legal profession is paramount. The Chief Justice has placed limitations on members of the public entering courthouses during alert level 4. Members of the public who are not required to attend for that day's Court business are excluded from entering the courthouses, unless they have obtained prior approval to attend.

Lawyers will of course be allowed to enter the buildings but may need to show a form of identification which includes a photograph. Media will also be permitted access to courthouses to ensure that the principles of open justice are maintained.  

Jury Trials

Chief Judge of the District Court, Heemi Taumaunu, has released a District Court Interim Response notifying that all jury trials currently listed to be heard over the next two months, from Monday 23 March have been suspended. Trials are unlikely to be given new dates at this stage.

Filing by Email

Each Court is requiring filing of Court documents by email during the level 4 alert. Some documents may be received by mail, however the Court has warned that due to hygiene requirements, processing of documents received by post may be significantly delayed.

At McVeagh Fleming, we are successfully filing Court documents and proceedings by email.

Affidavits

The legislation governing the administration of oaths and declarations, and the swearing or affirmation of affidavits, contemplates the deponent being in close physical proximity to the administering person.

However, the High Court Rules, District Court Rules and s 24 of the Epidemic Preparedness Act 2006 provide for the validity of the document may be determined "in the manner that the Court thinks is best calculated to promote the objective of [the] rules" and allows for a Judge of the High Court and certain other judicial officers to modify any rule of Court to the extent necessary in the interests of justice.

Therefore, the New Zealand Law Society has provided practitioners with the following guidance and material for administering an oath or declaration remotely:

Before deciding whether to provide a certificate, any lawyer being asked to administer an oath or declaration remotely should also consider the following matters:

• The lawyer will need to be satisfied about the quality of the remote conferencing facility (Skype, WebEx, Zoom, or similar, referred to here as “AVL”) and that it enables the lawyer to clearly observe the deponent and the document.
• If the deponent is unknown to the lawyer (either as a client or personally) then the lawyer would be prudent to require the production of reliable photographic identification capable of being inspected by AVL.
• The lawyer will have to be acquainted with the document being attested, to a greater extent than would be the case if the deponent was present with the lawyer. That is because it will be necessary to provide an accurate description of the document in the certificate, to ensure the certificate is linked with the document being offered by the deponent to the Court or other authority.
• Assuming the availability of a satisfactory AVL facility, the lawyer will need to see each of the pages being signed or initialled by the deponent, including the jurat page, as they are being signed or initialled, and any exhibits. The document should then be scanned and sent to the lawyer.
• The lawyer must be satisfied, as far as possible, that the document received from the deponent is the same document the lawyer witnessed being signed by the deponent. If the lawyer is satisfied about that then the document should be attested and returned to the deponent with a completed certificate.

If these attestation and certification procedures are followed, in the absence of judicial or legislative authority permitting remote attestation or otherwise overcoming the problem of remoteness, those processes will assist the Court or other authority in deciding whether or not to accept the document as being formally binding on the deponent.

We are currently taking active steps to ensure that we can take, and have lawyers from other firms (where necessary) take affidavits during lockdown, in compliance with the above directions. In order for us to do this, clients will need to have access to a printer, scanner and reliable AVL connection, such as Zoom, Skype or similar programmes.

Some Filing Fees to be Waived

The Chief Justice has advised that the Courts will waive filing fees for documents filed during the level 4 alert to the extent they can do so under s 24 of the Epidemic Preparedness Act or pursuant to other relevant Court rule or regulation. However, filing fees can also be paid electronically as arranged by your lawyer with the Courts.

In most respects, nothing has changed in respect of the services we provide as litigation lawyers. Working From Home is now the new normal and we are set up to comply with the Court's new normal also. The list below will give you an idea of everything we can accommodate during lockdown:

     -     Meeting with clients over AVL such as Zoom or Skype

     -     Discussions over telephone or email

     -     Preparation of Court proceedings including having affidavits sworn as required

     -     Filing Court documents and proceedings electronically

     -     Payment of Court filing fees electronically

     -     Court attendances via AVL, telephone or email

     -     Court attendances in person as required

     -     Ensuring Court fixtures are appropriately adjourned and not 'missed' by the Court

Much of our litigation teams' work is done in preparation for Court, and in trying to keep you out of it. Therefore, we are well placed to assist with any Court-related issues or queries you may have during lockdown. Please get in touch with one of our litigation partners or the author of this article below to discuss your individual needs.

Please direct any enquiries to:

Craig Andrews on (09) 306 6745 (candrews@mcveaghfleming.co.nz)

John Burley on (09) 306 6741 (jburley@mcveaghfleming.co.nz)

James Turner on (09) 966 3603 (jturner@mcveaghfleming.co.nz)

Alissa Bell on (09) 966 3606 (abell@mcveaghfleming.co.nz) or

Peter Fuscic on (09) 306 6746 (pfuscic@mcveaghfleming.co.nz)

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