Changes to court operations during the COVID-19 lockdown

On Wednesday, 25 March 2020 the New Zealand Government enacted its national response to the COVID-19 pandemic by moving to Alert Level 4 in a bid to eliminate the virus. This has effectively shut down all but the provision of essential services in New Zealand.

Chief Justice Helen Winkelmann has advised the legal profession and members of the public, that the courts will be operational during all COVID-19 Alert Levels, stating that:

“Courts are an essential service. New Zealand courts must continue to uphold the rule of law and to ensure that fair trial rights, the right to natural justice and rights under the New Zealand Bill of Rights Act are upheld.”

Nonetheless, to ensure the safety of the public, court staff and legal practitioners, necessary changes have been applied to way the courts administer justice.

Only priority proceedings to be heard

The Heads of Bench have decided that only proceedings affecting the liberty of the individual or their personal safety and wellbeing, or proceedings that are time-critical, should be heard while Level 4 restrictions are in place.

Priority proceedings are guided by these over-arching principles:

Liberty of the individual;
Protection of the at-risk or vulnerable, including children;
The national and community safety interest;
Facilitating and promoting public order.

During the period that Level 4 restrictions apply, the registry will administratively adjourn all matters that are not priority proceedings. Defendants whose cases are not priority proceedings are excused from attending court during the lockdown period. Their cases will be adjourned to the next available date and the registry will advise each defendant of that date.

Remote participation to be used predominantly

To the maximum extent possible, and to avoid the need for physical court attendance, remote participation will be used to hear priority matters. Remote participation will involve AVL (audio-visual link) where possible, telephone or email.

Where court attendance is unavoidable, the safety of the public, court staff and members of the legal profession is paramount. Measures have been taken to achieve physical distancing and to improve courthouse hygiene. The Ministry of Justice has posted designated hygiene officers to each court to ensure that the increased hygiene standards are maintained.

Filing by email

Courts have requested that documents are filed by email while the Level 4 restrictions are in place. Documents may still be filed by post if necessary, but due to hygiene requirements, the processing of these documents may be significantly delayed.

Some filing fees to be waived

The Chief Justice has advised that the courts will waive filing fees for documents filed during the Level 4 restrictions to the extent they can do so under section 24 of the Epidemic Preparedness Act or pursuant to other relevant court rule or regulation.

Administration of oaths and declarations

The Level 4 restrictions pose difficulties to the administration of oaths and declarations and the swearing or affirmation of affidavits, as legislation requires the deponent to be in close physical proximity to the administering person.

The New Zealand Law Society has provided practitioners with the following guidance for administering an oath or declaration remotely.

Before deciding whether to provide a certificate, any lawyer being asked to administer an oath or declaration remotely should consider the following matters:

The lawyer must be satisfied with the quality of the remote conferencing facility (Skype, WebEx, Zoom, or similar, referred to here as “AVL”) and that it enables the lawyer to clearly observe the deponent and the document.
If the deponent is unknown to the lawyer (either as a client or personally) then the lawyer would be prudent to require the production of reliable photographic identification capable of being inspected by AVL.
The lawyer must be acquainted with the document being attested to a greater extent than would be the case if the deponent was present with the lawyer. That is because an accurate description of the document must be provided in the certificate, to ensure the certificate is linked with the document being offered by the deponent to the Court or other authority.
Assuming the availability of a satisfactory AVL facility, the lawyer must observe each of the pages being signed or initialled by the deponent, including the jurat page, and any exhibits. The document should then be scanned and sent to the lawyer.
The lawyer must be satisfied, as far as possible, that the document received from the deponent is the same document that they witnessed being signed. If satisfied, the document should be attested and returned to the deponent with a completed certificate.

If these attestation and certification procedures are followed, in the absence of judicial or legislative authority permitting remote attestation or otherwise overcoming the problem of remoteness, those processes will assist the court or other authority in deciding whether or not to accept the document as being formally binding on the deponent.

James & Wells professional staff are happy to assist with the administration of an oath or declaration remotely during the lockdown period. To comply with the above guidelines when administering an oath or declaration, deponents will need to have access to a printer, scanner and AVL facility.

Our firm is well-equipped to deal with the necessary changes to court operations during the COVID-19 lockdown. We routinely provide the below services and will continue to do so during the Alert Level 4 restrictions:

Meeting with clients over AVL (via Zoom, Skype and Microsoft teams);
Communications via telephone or email;
Preparation of court proceedings;
Administering an oath or declaration remotely;
Filing court documents and proceedings electronically;
Payment of court filing fees electronically; and
Remotely attending court via AVL, telephone or email.

We are closely monitoring any updates and developments from the courts regarding operations. Please get in touch with James & Wells staff if we can be of any assistance.