Not remotely fair: An examination of audio-visual links in civil proceedings

Abstract

Audio-visual links (“AVL”) allow parties to appear remotely in court proceedings. The Courts (Remote 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.