Chapter 24
The role of the courts

Disputes over jurisdiction

24.22Thus far, we have recommended that the High Court, the Family Court and the Māori Land Court have concurrent jurisdiction. Some disputes will clearly fall into one or the other category, and the claimants can be expected to make their application to the appropriate Court. For example, if the issue in question is a matter of complicated legal principle, the applicant will likely apply to the High Court for a determination. If the problem concerns tricky relationships within a family, the applicant will identify that the Family Court is better placed to determine the issue. If questions of tikanga are central to the issue, the Māori Land Court will be the obvious choice. Other matters such as cost, timeliness and accessibility may also determine the choice of court.

24.23However, there will be cases where one party wants the dispute heard in one court, and the other party wants it heard in a different court. There are a few different options for dealing with this situation. The legislation could provide specific criteria for which cases go to which court. For instance, the Māori Land Court submitted that disputes involving a Māori deceased or a burial site on Māori land should be heard in the Māori Land Court. This could be provided in statute. However, determining who is a “Māori” deceased for that purpose is not able to be governed by a bright line rule and may give rise to legal uncertainty.

24.24A second option is that the proceedings could be heard in the court where they are filed and that, if the opposing party disagrees with the proceedings being heard in that forum, they could make a special application for a judge of another court to sit together with the presiding judge in the court where the proceedings were filed.

24.25In Issues Paper 34, we suggested this might be impracticable and cause difficult jurisdictional questions (for example, if the judges disagree). However, some submitters favoured it. It might be achievable through the cross-warranting of judges.482

24.26However, our preferred option is that, if there is disagreement between the parties on which court hears the case, it should be heard by the High Court by default. This is the most straightforward option and will encourage parties to resolve any pre-trial forum issues or to go straight to the High Court if they cannot.

482 In its 2004 Report examining the structure of New Zealand courts and tribunals, the Law Commission recommended cross-warranting of judges to enable some Māori Land Court judges to sit in its proposed new Community Court so that their expertise and knowledge of tikanga would be available. See Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004) at [330].