[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

11 Jurisdiction of District Court

199 IN OUR PRELIMINARY PAPER we raised the issue as to whether the District Court should be given increased jurisdiction in respect of matters relating to arbitrations. In paragraphs 58–60 we said:

58 The 1996 Act differentiates between powers which can be exercised by the High Court or the District Court.

59 The provisions of the Act follow a consistent approach:

(a) Applications for a stay are heard in the court where the proceedings were filed.

(b) Applications where “assistance” is sought may be heard in either the High or District Court.

(c) The other types of application involve contested matters, involving either review of an arbitrator’s decision or making orders against the arbitrator or enforcing the award. These are heard in the High Court.

60 The issue is whether the District Court should be given jurisdiction to hear contested matters falling within the scope of category (c).

200 As paragraph 60 of our preliminary paper indicates, the question is whether the District Court should be given jurisdiction to hear contested matters falling within the scope of category (c) of paragraph 59. In particular, enforcement of arbitral awards might be enhanced by the ability to execute through District Court procedures and given the wider range of locations at which District Courts are to be found.

201 The main ground for seeking an extension of District Court jurisdiction is based on difficulties of cost and access faced currently by consumers. Although that submission was made by the Minister of Consumer Affairs, it can be said, we think legitimately, that the same concern applies to small businesses. On the other hand, the major objection to an extension of jurisdiction is that High Court judges are likely to have greater experience in dealing with arbitration issues than judges in the District Court.

202 We see merit in the view that the jurisdiction to deal with contested issues should continue to be exercised in the High Court. The role of the High Court in supervising arbitral proceedings is akin to the public law function which it performs in areas such as judicial review. It is a case of the public justice system overseeing the administration of a private dispute resolution mechanism. We think it is desirable to retain the jurisdiction of the High Court for contested matters.

203 However, we think there is also merit in seeking to overcome the difficulties, caused by cost and accessibility, that are faced by consumers, and small businesses which may need to enforce an award. We think that the balance can be properly struck by allowing an application to be filed in a District Court to recognise and enforce an award of a sum within the jurisdiction of the District Court. But, if there is any challenge to the recognition or enforcement of the award, then the recognition and enforcement proceedings in the District Court should be removed to the High Court for determination. Thus, in uncontested recognition and enforcement proceedings, consumers and small-to-medium-sized enterprises will have the ability to use a wider range of courts at different locations in New Zealand and to take advantage of the wider, and cheaper, enforcement procedures in the District Court.

204 We note that a judgment obtained initially in the High Court can be transferred to a District Court, and then District Court execution processes can be utilised. The transfer procedure is in fact simple and inexpensive.²¹³ This would tend to indicate that the increased jurisdiction recommended is not required simply to enable parties to utilise cheaper execution processes. However, the new High Court Fees Regulations 2001 now require payment of a commencement fee in the High Court of $900. This compares with $120 in the District Court. This effectively means that for small parties there is now considerable benefit in being able to commence enforcement of awards in a District Court.

205 An ancillary recommendation which we are minded to make is as follows: an arbitrating party which wishes to have an award recognised and enforced is simply using an administrative process to ensure that the award is enforced. It does not seem to us to be right that such a person should be charged with commencement fees of the type we have just mentioned. We suggest that it would be more appropriate to charge a modest filing and sealing fee for the recognition and enforcement proceedings, and require any party opposing recognition or enforcement to pay a commencement fee. In real terms, it is the opponent who will be the initiator of the contested application.