Authors: Jenny Catran, His Honour Judge Bruce Corkill
Published: 20 July 2022
Pages: 23

Introduction

It has been widely acknowledged around the globe that years of progress in remote hearings were achieved very rapidly – in some jurisdictions within weeks – due to the COVID-19 pandemic. This is as true in New Zealand, as it is elsewhere.

Fortunately, some of the New Zealand systems for accommodating remote hearings were in place well prior to 2020, although they had been utilised in a somewhat piecemeal fashion. The main tool related to the provision of evidence by video links.

In the late 1990s and early 2000s, courts began to debate the pros and cons of such a mode of giving evidence. A useful summary of the position as it was in 2007 is found in Deutsche Finance New Zealand Ltd v Commissioner of Inland Revenue, where Stevens J emphasised that the use of technology such as video link communications “may well contribute to the just, speedy, and inexpensive conduct of litigation”. He was able to conclude that giving evidence by video-link was an accepted feature of litigation. He went on to say that such technology enabled remote litigants to be spared costs, and in some instances, the stress of travelling significant distances to give evidence. But he noted that against such positives, there needed to be an assessment of the requirements of natural justice, and in particular, fairness to all parties. At that stage, applications for the use of this mode of giving evidence fell under the High Court Rules and the provision in the Evidence Act 2006 which deals with alternative ways of giving evidence. But, in 2010, the utility of using audio visual links (AVL) was recognised by the enactment of the Courts (Remote Participation) Act 2010 (RPA). Its enactment was driven in part by the desire to reduce transport of prisoners from correction facilities to court for more routine court events.

As is well known, the statute provides criteria against which judges, and registrars, can assess and determine the use of AVL in a civil proceeding. As we shall explain later, the statute spells out “whether or not” to allow the use of AVL.

Over the next few years AVL facilities were enabled in many courthouses throughout the country. The use of this mechanism became more frequent in all courts. Other digital enhancements were also introduced. These included the introduction of electronic bundles particularly for document-heavy cases, and the introduction of File and Pay, which is an online mechanism for use when commencing a proceeding.

Content outline

• Background
• The state of play in 2020
• Modes of cirtual hearing
• Pre-hearing
• Hearing
• Virtual mediations and authority investigations