Not Remotely Fair: An Examination of Audio-Visual Links in Civil Proceedings

36 Pages Posted: 8 Sep 2019 Last revised: 18 Sep 2019

See all articles by Mitchell Fraser

Mitchell Fraser

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: September 3, 2018

Abstract

Audio-visual links (“AVL”) allow parties to appear remotely in court proceedings. The Courts (Revictomote Participation) Act 2010 (“CRPA”) is the enabling legislative scheme for AVL use in New Zealand. While the scheme strictly regulates AVL deployment in criminal matters, s 7 of the CRPA adopts an intentionally more permissive approach to civil proceedings. This paper addresses the concern that s 7 poses a unique risk to prisoners in civil litigation against the Department of Corrections (“Corrections”). There, Corrections bears the costs and risks of facilitating their counter-party’s presence in court. These burdens are markedly reduced when the litigant appears remotely from prison. Corrections accordingly has an unusual incentive to apply for an order compelling their counter-party to participate remotely. The New Zealand High Court has been divided on the permissibility of granting such an order. This paper contends compelling participants to appear via AVL in substantive civil proceedings is a breach of those affected participants’ natural justice rights guaranteed at common law and by s 27(1) of the New Zealand Bill of Rights Act 1990. This paper concludes that reform to the CRPA is necessary to fully address these rights concerns and protect all participants under the scheme, as intended.

Keywords: Audio-Visual Links, Courts (Remote Participation) Act 2010, Civil Proceedings, Natural Justice, New Zealand Bill of Rights Act 1990

JEL Classification: K00

Suggested Citation

Fraser, Mitchell, Not Remotely Fair: An Examination of Audio-Visual Links in Civil Proceedings (September 3, 2018). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 9/2019. Available at SSRN: https://ssrn.com/abstract=3448940 or http://dx.doi.org/10.2139/ssrn.3448940

Mitchell Fraser (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

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