This Brief Counsel provides an overview to the areas the
Commission has identified for potential reform. Chapman Tripp will
produce separate Brief Counsels on each of these 'talking
The Commercial List and specialisation
The Law Commission has floated a number of proposals to speed up
the resolution of commercial disputes. These include:
expanding the Commercial List, and
creating a specialist commercial court.
The Commission's provisional view is that "cost
implications would immediately seem to rule out a standalone
commercial court." Instead it suggests a more feasible option
may be to move to a panel system under which the High Court would
be split into divisions with different specialties (such as
criminal, commercial, equity or similar).
Specific divisions beyond commercial matters may not be wanted
at this stage. The result of such a panel could be the need for
The District Court
The lower cost District Court option for civil litigants is
hamstrung by a jurisdiction fixed at disputes of no more than
$200,000, with scope for defendants to transfer any matter over
$50,000 to the High Court.
The Law Commission recommends extending the threshold to
$300,000, which is in line with inflation.
Vexatious litigants and interveners
The process for dealing with vexatious litigants currently
requires action by the Attorney-General or Solicitor-General. Other
jurisdictions have a "graduated response" system which is
more accessible to the parties involved.
Interveners are non-parties to the litigation that do not have a
stake in the direct outcome of the case, but may participate by
making submissions to the Court. The Law Commission has considered
spelling out rules for interveners, including procedures they must
follow and the costs they may be liable for.
The Law Commission asks whether the appointment process to
superior courts would be improved by having criteria and
requirements for consultation.
Annual reports to Parliament
The Law Commission has been mulling whether the Chief Justice
should be required to make an annual report to Parliament or
"State of the Union" type address on how the courts are
This would be a way to ensure accountability. But the Commission
has concerns that it may be contrary to the need for judicial
independence, and may require further resources.
Civil jury trials
Civil jury trials are hardly ever used. The Law Commission has
queried whether the option of a civil jury trial is necessary, or,
if it is, whether it is only useful for certain cases (such as
Chapman Tripp litigation comment
We generally support the Law Commission proposals, most of which
represent reasonably minor repairs to the status quo. The most
nuanced of the issues relates to the structure of the High Court.
Restructuring almost 50 judicial officers into panels would need to
be a delicate and incremental process.
The Chapman Tripp litigation team will comment on each of the
main talking points in more detail in an upcoming series of Brief
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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We discuss Robinson Helicopter Company Incorporated v McDermott  HCA 22 .
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