Contents

Chapter 12
Rules of procedure

Conclusion

12.14The Law Commission does not consider that pecuniary penalty proceedings should take place within the criminal jurisdiction of the courts. At present, the alternative that presents itself is the civil jurisdiction, which brings with it the rules of civil evidence and procedure. But those rules of evidence and procedure were not designed with a State-imposed penalty in mind. Pecuniary penalties therefore differ from the forms of proceeding for which the rules are most apt.

12.15Having said this, where pecuniary penalty cases are concerned, we are not aware of the courts encountering particular difficulties or raising particular objections when applying civil procedural rules.251 Submitters did not raise any specific concerns in this area, nor has our subsequent consultation. We have no evidence of substantive unfairness having occurred, or of particular concern on the part of those involved in pecuniary penalty proceedings about the way the courts are handling them. As noted in Chapter 9, High Court judges have at their disposal rule 1.4(4) which provides:

If in any civil proceedings any question arises as to the application of any provision of these rules, the court may, either on the application of a party or on its own initiative, determine the question and give any directions it thinks just.

12.16This rule arguably provides judges with sufficient scope to depart from particular High Court rules where, given the nature of the proceedings, they will lead to unfairness. On balance, then, we propose that the civil rules of evidence and procedure should continue to apply.

12.17This approach is probably achieved by the standard formulation in section 509, set out above. We are not persuaded that the term “usual” is necessary, and it is possible that it is liable to confuse. However, it appears that even with the inclusion of that word, the majority of submitters have faith in the courts’ ability to adapt the civil procedural rules in a manner appropriate to the nature of pecuniary penalty proceedings.

12.18For completeness, we note that a direction like that in section 43V of the Securities Markets Act 1988 is unlikely ever to be appropriate. We also see no need for additional provisions relating to the ordering of discovery and interrogatories.

12.19In Chapter 9, we raised questions about the appropriateness of some of the High Court rules for pecuniary penalties (regarding a proposed “penalty privilege”).252  Such questions illustrate the, perhaps unforeseen, difficulties of applying standard civil rules to hybrid forms of penalty or order. While “civil” in name, they may have severe implications. We have referred in Chapter 6 to proceedings for orders under the Public Safety (Public Protection Orders) Bill, and another example is proceedings for “civil” forfeiture orders under the Criminal Proceeds (Recovery) Act 2009. We encourage policymakers to consider the appropriateness of applying standard civil rules, in their entirety, to punitive or coercive orders that are to be sought in the civil jurisdiction. Any such policy development process should take into account whether protections such as the penalty privilege are required, and whether aspects of the standard civil court process will be inappropriate or unnecessary.

12.20As suggested in Chapter 9, there may be a case for the Rules Committee to consider whether the High Court Rules have adequate flexibility for courts to deal with pecuniary penalties and similar sorts of orders, or whether a tailored process could be devised.

GUIDELINE

G9 Civil rules of court procedure and evidence should apply to pecuniary penalty proceedings

Pecuniary penalty proceedings take place in the civil courts, where the civil rules of procedure and evidence apply.

Nevertheless, policymakers should always consider potential problems with applying standard civil rules to proposed new punitive or coercive orders. Consideration should be given to whether tailored rules are required to balance principles of fairness, regulatory efficiency and certainty.

251For example, in Chief Executive of the Department of Internal Affairs v Mansfield [2013] NZHC 2064 at [38], Wylie J stated that: “The ‘usual rules of court’ can only be the High Court Rules. They govern the disposition of civil proceedings.”
252See for example ch 9 at [9.50].