Review of Courts (Remote Participation) Act 2010

The Act governs use of remote participation in civil proceedings in any New Zealand court. Civil proceedings are defined as any proceedings other than criminal proceedings. This captures general civil proceedings, family proceedings, compulsory care proceedings, and cases in the specialist courts.

The Act simply allows for remote participation in civil proceedings (i.e. audio visual link (AVL) and audio link (AL) technology may be used). There are no presumptions in favour or against use. A judicial officer or Registrar must consider the impacts of remote technology use on the rights and interests of participants in the proceedings and take into account whether or not the parties consent to the use of AVL for the participant.

There is an opportunity to strengthen expectations for more use of remote participation in civil proceedings.

Many civil proceedings are likely to be suitable for remote hearings because of the subject matter and nature of the evidence. Civil proceedings do not involve New Zealand Bill of Rights Act fair trial considerations in the same way as criminal proceedings, nor are they dependent on AVL infrastructure across the justice sector.

Most suited to remote participation might be general civil proceedings (e.g. cases involving disputes between neighbours or over business contracts or debts) and cases in the specialist courts, which all currently make use of remote technology. Family and compulsory care proceedings, and coronial inquest hearings, are less evidently suited to remote participation. This is because of the sensitive nature of the matters, complex legislative and procedural requirements, and the vulnerability of many of the participants.

We have identified three options for adjusting policy settings ranging from small to significant changes. All options would increase expectations for use compared to current settings, but each has a different focus. The options are standalone, but Options 1 and 2 could be progressed together.

Option 1: Require decision-makers to actively consider whether a civil hearing should be held remotely

This would be more directive than the current state. Judges or Registrars would have to actively consider, case by case, whether a hearing should be held remotely or in-person. This preserves judicial independence, but signals that when remote participation could be appropriately used in civil proceedings, it should be. This option would add an extra step for courts to take in advance of all civil hearings, which would impact court resourcing and timeliness. These impacts may, however, be offset by efficiencies gained through more remote hearings.

Option 2: Introduce an entitlement for lawyers to participate remotely if requested

An entitlement would provide that if a remote appearance is requested by a lawyer, this must be approved by the court unless it is determined that doing so would be contrary to the interests of justice. Approval would depend on the necessary technology being available. This option would increase certainty and convenience for lawyers, many of whom spend significant time travelling for in-person appearances at short procedural civil hearings.

An entitlement could apply to all lawyers and all civil appearances or be limited to a subset. For example, it could apply only to lawyers who are far away from the registry hearing the case, or only to certain types of appearances. Other participants could also appear remotely if the judicial officer or Registrar determines it appropriate but would not be entitled to do so. Unless all participants joined the hearing remotely, hearings would still involve some participants in a courtroom.

Option 3: Introduce a legislative presumption in favour of remote participation in some or all civil proceedings

A presumption could be applied to all civil proceedings or to a subset. Another option could be a presumption applied to particular types of civil hearings. For example, ones that are ‘procedural’ or ‘short’ or ‘non-contentious’.

A presumption would function like a ‘default’ setting, signalling that most (or certain) civil hearings should be undertaken remotely. The presumption could set an expectation that the hearing will be 'fully remote', meaning all participants should join remotely.

Judicial officers and Registrars would be able to depart from the presumption in favour of holding an in-person hearing, but the bar would be high. They would need to determine that remote participation would be contrary to the interests of justice. Key considerations would be whether appropriate technology is available to the court and all participants, and whether the rights of the parties would be maintained.

Where supported by the appropriate technology and facilities, this option should result in much greater use of remote participation in civil proceedings. It could save time and money for participants and enable more efficient use of court resources, including by freeing up court rooms if all participants appear remotely.

Such a presumption would represent a major shift from current practice and could change the nature of many civil proceedings. Full implementation would rely on both the courts and participants having good technological capacity and capability, appropriate facilities, and court resources to support the hearings. Investment would be needed to realise the full benefits over time.