Judicature (High Court Rules) Amendment Bill

Hon RICK BARKER (Minister for Courts) Link to this

I move, That the Judicature (High Court Rules) Amendment Bill be now read a second and a third time. I would like to express my gratitude to the Justice and Electoral Committee for its prompt consideration of this bill and to say I fully support its recommended amendments to the House.

The bill will implement a major rewrite of the rules that govern civil proceedings in the High Court, by replacing the current rules that are contained in schedule 2 of the Judicature Act 1908. These rules facilitate the expeditious, inexpensive, and just dispatch of core business or otherwise assist the due administration of justice. The new rules improve the structure and language of that important legislation, thereby improving their comprehension, and new provisions will ensure a consistent approach. The bill represents the first stage in improvements for civil procedure, which will commence in the High Court on 1 February 2009. Following the enactment of this legislation, the Rules Committee will finalise new District Court Rules, which will take effect later in 2009.

The reforms to the High Court Rules represent many years of endeavour by the Rules Committee. The project was led by the previous and present chairpersons of the Rules Committee, Justice Baragwanath and Justice Fogarty. It has greatly benefited from the considerable legal knowledge and drafting skills of Dr Donald Mathieson QC, special counsel for the Parliamentary Counsel Office.

The new rules closely follow the content of the current rules, and the majority of the changes could be made as secondary legislation. However, there are certain changes that require parliamentary approval because they go beyond mere practice and procedure. The main changes that require parliamentary authorisation are, firstly, to extend the power currently enjoyed by the District Court, so the High Court can make an attachment order to a person’s source of income in order to assist with the recovery of a civil debt; secondly, to clarify the rules of service outside New Zealand for civil court proceedings; thirdly, to clarify the High Court’s powers to grant interim relief in support of proceedings before a foreign court; and, fourthly, to enable the electronic filing of documents—called e-filing—from a date to be established by Order in Council.

The quality of work that has gone into this bill is reflected in the small number of amendments recommended by the select committee, as tabled in its report.

I express my gratitude to all those who helped to bring this bill to fruition. I have already made mention of some people, but others who have made a major contribution are the Chief Justice, Dame Sian Elias; the Chief High Court Judge, Justice Randerson; and other judges of the High Court. I also specifically acknowledge Mr Christopher Finlayson MP, as a member of the Rules Committee from 1999 to 2005; and also my parliamentary colleague Charles Chauvel, who has had some input into this bill; many senior members of the legal profession and law schools of our universities; Mr George Tanner QC, the former Chief Parliamentary Counsel; and many counsels from the Parliamentary Counsel Office. The consultation phase also involved groups of legal executives and senior court registrars, who closely examined the prescribed forms.

I would, finally, like to thank the House for supporting this bill through this expedited process. I gladly commend the bill to the House.

CHRISTOPHER FINLAYSON (National) Link to this

I want to thank the Minister in charge of the bill, the Hon Rick Barker, for those generous comments, and endorse what he said about thanks being due to many people who have made this very important project finally come to fruition. Indeed, the Judicature (High Court Rules) Amendment Bill has had, by the standards of this House at least, a very speedy passage, but there was a very lengthy gestation period. As I said in my first reading speech, the project really started in 2002, and got under way properly in 2004, and I will say a little bit more about that shortly. The Minister has accurately summarised the changes made by the Justice and Electoral Committee. There were not many changes, and I think it is, as the Minister said, a tribute to the work of those in the Parliamentary Counsel Office, particularly Dr Mathieson, who have done such a good job that the changes were few and far between. Indeed the opportunity was taken, given that this bill was going through the House, to make a couple of minor changes, for example, spelling out, through the new clause 4A, the functions of the Chief High Court Judge.

This is an extremely important project, because procedure is not just an aspect of justice; it is essential to justice. The key changes introduced by this reform are as follows. The first one, which is mentioned in the purpose clause, is to state and set out the rules in clear English, and in a logical order. In 1985 the former Code of Civil Procedure was replaced, and the new High Court Rules were introduced. At that time they were in a tidy order, but the passage of time and the encrustation approach to law reform in this area meant that the rules were something of a pigsty, and they needed to be reordered in a logical order, and in plain English.

The second point, and again it is stated in the purpose clause of the bill, is to provide for electronic filing. Subpart 16 in Part 5 has those rules although we do not yet have electronic filing of documents, unlike most other jurisdictions of our kind. I certainly express the hope on the behalf of the Opposition that we soon get electronic filing in this country, because it is long overdue and it will cut down the enormous amount of paper required in litigation.

The third major reform is Part 17, which deals with the enforcement of judgments. When the High Court Rules were reformed in 1985, this was one area that did not receive detailed consideration. Even though this exercise was mainly in the nature of a clean-up, when the rules were being reviewed an opportunity was afforded to look at the rules relating to execution or enforcement, and Part 17 does have some major changes. I refer, for example, to Subpart 4, which deals with attachment of judgments—bringing into the High Court procedures that have been in the District Court for some time.

The fourth reform, in Part 30, simply restates the existing rules relating to judicial review that are currently set out in the High Court Rules. I have a feeling that these rules will undergo some changes in the next few months, because the Law Commission has recently published a report on prerogative writs and this type of judicial review. I agree with the recommendations the commission makes.

The fifth reform is in Part 32, which deals with freezing orders. These orders, sometimes known as Mareva injunctions, are very important orders of the court. They were developed in England many years ago and, by a process of adoption of precedents from England, were adopted in New Zealand and in other jurisdictions. They are instant freezing orders, and are a very important ancillary tool when one commences proceedings and there is a fear that, if the ordinary rules are applied, by the time one gets to the execution of a judgment, assets could have been dissipated or removed out of the jurisdiction. So that is what the Mareva injunction is all about. Part 32 recognises the freezing order, and sets out some of the principles relating to obtaining these orders that are developed from authorities over the last 30 years.

The final reform relates to search orders, which arose out of procedures in England: the development of what is known as the Anton Piller order, particularly important in intellectual property litigation, but of general application now. Part 33 not only recognises the Anton Piller order—which is to be called a search order—but also sets out requirements for the grant of such an order and the obligations on the applicant.

Although most of the work that is being done could be said to be stylistic—putting things in plain English—there has been an opportunity to tidy up a couple of areas and reform the areas I have mentioned. As the Minister I think fairly acknowledged, there is still much to do. The Rules Committee is currently working on reform of the District Court Rules, but I think it will have to come back and look at some of these rules over the next few years. I think it is timely to review case management and the way to give evidence. In recent years evidence-in-chief has been given by way of brief of evidence or statement. As Mr Fairbrother would know, this was the subject of a lot of discussion when he and I were on a subcommittee looking at the Evidence Bill in 2006, and largely due to his and my efforts a subsection (2) was included in section 83 on the ordinary way of giving evidence. A written statement may be given in evidence only if it is the personal statement of the maker and does not contain a statement that is otherwise inadmissible under this Act. I regret to say there are many statements filed in court in civil proceedings that do not comply with section 83. I think those rules need to be toughened up.

The other areas requiring reform are the rules that relate to discovery. These are currently far too general and do not recognise the fact that there has been an explosion in the number of documents—both actual documents and e-documents—in recent years, which make rules developed in the 19th century wholly inappropriate for discovery. There need to be reviews of rules relating to appeals; electronic filing, as I said; and possibly also it is timely to look at whether there should be mandatory mediation in certain High Court proceedings. Just last week we were looking at another one of the Minister’s bills—the Family Courts Matters Bill. It is very fine legislation, which has extensive rules relating to mediation and Family Court proceedings. I think it is perhaps timely to consider whether those sorts of rules should be introduced to the High Court Rules.

Then, quite apart from rules, other major reforms are required for the law of limitation, the Crown Proceedings Act, and the Declaratory Judgments Act; and both the Judicature Act and District Courts Act need to be tidied up. I believe that this Government has not paid enough attention to civil justice over the last 9 years. The delays in the civil justice system are shocking. Sometimes it takes months to obtain a hearing on an interlocutory matter, and that is why this House needs to pay more attention to those matters.

I agree that the person who deserves the most thanks is Justice Baragwanath. He is the person responsible for this project. He is the one who ensured that it has come to fruition. George Tanner, former Chief Parliamentary Counsel, did an excellent job and engaged Dr Don Mathieson, a former professor of law and leading barrister, to do the work. Dr Mathieson can be very proud of this work. He has given to New Zealand in so many ways over the years, as the lead counsel for the Crown in some of its most difficult cases, and he has done a wonderful job here. I also want to express my thanks to members of the legal profession, many of whom gave hours of work to the reform of these rules. I particularly refer to those who worked on the part dealing with the enforcement of judgments.

So it is great that this project has finally come to fruition. As I said, it really got under way in 2004 but I do not think it is enough to rest on our laurels. There is much more to be done. Civil justice deserves a lot more attention than it has received from this Government over the last 9 years.

RUSSELL FAIRBROTHER (Labour) Link to this

I am delighted to follow the previous speaker, because I am aware of the tremendous input he has had into the formulation of these High Court Rules. About half a decade ago someone kindly thought I should be kept in the email loop of the development of the rules, and my email box has been continually full of email changes and interesting discourse, as, by electronic means, changes have been debated—sometimes restrained and sometimes not so restrained.

The rules are often mistaken for being procedural and a hiccup to the administration of justice, but in my experience at the Bar, which was not concentrated around the civil courts, the rules were in fact often a very powerful tool, which, if used properly, cut down much wasted time and expense in litigation. I have to say, regarding the formation of the rules, I was pleased to find when I came into the House today and looked at rule 6.6 that it brings into the rules the common law I was responsible for developing in the Jenssen case, where we argued that a caveat that was due to lapse after 14 days could be extended on service of proper application. As the solicitor we served the application by facsimile, and the opposing side, an oil company, opposed that as being an improper form of service. His Honour Justice Gallen upheld that facsimile, in its then primitive form, was an appropriate form of service, and that was the common law development of the service rules, which are now taken into a codified form in rule 6.6 of these rules.

Then I turned to rule 17.83, which contains the enforcement provisions. I looked at that because many years ago I was responsible for acting for an individual who was continually being arrested for camping on a piece of land in the Heretaunga. Eventually he was imprisoned for disobeying a High Court order, and he was held in custody indefinitely, under what is now rule 17.83, because he refused to obey an order by the judge, His Honour Justice McGechan. Time and time again that individual came before the court and time and time again he was held in custody, because he would not move from his habit of camping on the land. He claimed it was family land that was taken dishonourably by the Crown. The Crown claimed it was not family land, but I dare say it is now going to be resolved by way of a Treaty claim.

That experience in those days reinforced to me how powerful the rules can be, because in fact the High Court Rules enabled a citizen who believed he had a grievance to be held in custody on an almost open-ended basis. I never saw how that man was finally released, but I assume he was released because he agreed to move off the property, and thus came the end to his time in detention.

The other area in which I had some involvement before I came into this place was the Anton Piller order procedure. I remember being involved in obtaining an Anton Piller order just prior to my leaving practice, and that was a journey into the unknown. I am glad to see that Anton Piller orders are now codified, and for someone not frequently using Anton Piller order procedures, that may be a little bit easier to follow.

I have to say that in the adversarial processes of the High Court we do need rules as detailed and specific as the rules we have here. I listened to the comments of my friend Mr Finlayson, who spoke of the work required in the District Court. I have to say that my recent experience in the Privileges Committee, and also an experience I had when I conducted a case in the coroner’s court about 2 months ago, indicate to me that when we move to inquisitorial justice, much as is happening in the Family Court, then there is the need for a better set of rules so that those involved in the inquisitorial process understand what the procedures will be.

My experience in the Family Court, which is now some time ago; my experience in the coroner’s court, which was just 2 months ago, under the new Act; and my recent experience in the Privileges Committee show that no matter how well a tribunal endeavours to work through the inquisitorial process, if there is a lack of clarity of rules, then intuition is not always the best guide to procedure. So I welcome Mr Finlayson’s suggestion that there is a movement to clarify the District Court Rules, which have always seemed to me to be a little strange in that they stand apart from the High Court Rules, but there are differences in practice, of course. But I do think that the Law Commission and the Rules Committee should also investigate the tribunals of this land, which are usually an inquisitorial process, where advocacy is involved by paid advocates, because the inquisitorial process without a clear set of rules leads to intuitive reasoning and intuitive rule-making, which is not consistently followed from case to case or in different tribunals.

These new High Court Rules are a weighty document. From my observation of the email traffic over the last 5 years, I know that they have been well considered and deeply thought of. I was taught jurisprudence by Professor Mathieson, as he then was. Shortly afterwards at the Bar, I appeared in the Court of Appeal as junior counsel, and Professor Mathieson appeared on the other side. I revisited the rigour of his intellectual teaching ability in the way he appeared as respondent for the Crown in that case in the Court of Appeal, which involved an issue of defamation arising from a police summary of facts that wrongly named a third party. His advocacy then was indeed detailed to the highest degree. With Dr Mathieson’s oversight of these rules, one can assume that no stone has been left unturned, and I trust that these rules are as clear to follow as some of his jurisprudence lectures were.

In concluding, I must say these rules are long overdue. They will be welcome by the Bar. I do hope that our other tribunals—particularly the coroner’s court and the Family Court—can receive the same attention as to the rules that guide their processes. The rules of a court are the rules that determine that justice is in fact delivered.

Dr RICHARD WORTH (National) Link to this

It was a delight to hear Mr Finlayson keep us informed with his careful analysis and review of the Judicature (High Court Rules) Amendment Bill. As he spoke, I was reminded of the comments that Professor Jeremy Waldron recently made at the inaugural John Graham Lecture at the Maxim Institute. Dr Waldron is an American academic, although a New Zealander by birth, and he spoke about a number of aspects of our parliamentary system that he found lamentable. One of the things he spoke about—taken from the work of Sir Geoffrey Palmer—touched upon the fact that we are the fastest lawmakers in the West.

I reflect on that as I look at the Judicature (High Court Rules) Amendment Bill, because it is an illustration of it. This legislation came to the House for its first reading on 26 August, and just a few days later—11 September—we see it about to go through the further rites of the second reading, Committee stage, third reading, and Royal assent. For some legislation such speedy action is perfectly appropriate. I can think of many other illustrations that we have been treated to in the period of this Labour-led Government where legislation has languished for very substantial periods of time. But where there is a will—and we have seen it here—legislation can be progressed with expedition.

A few lawyers in Parliament have some knowledge of the rules of civil procedure. I think it is interesting that a number of procedural texts have given depth to these High Court Rules. The older court lawyers here would have been brought up with a text by a Queen’s Counsel called Sim. Sim’s Court Practice continues today, and is now edited by Justice Quilliam. There are a number of other publications. McGechan has a distinguished work on procedure, and Laws of New Zealand contains a significant amount of material on that same subject.

I want to dwell on several matters, starting with the primary objective in this legislation, which is set out in rule 1.2, “Objective—The objective of these rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.” I shall reflect for a moment on what it is about procedure, and on what the limitations of procedure might be as laid down by the judges in a number of cases. I shall refer to two. The first is a case very well known to Mr Finlayson: Food-Tech Ingredients Ltd v APV Bell-Bryant (New Zealand) Ltd in1989, and the comment made there.

DAIL JONES (NZ First) Link to this

This is a very big, important, and excellent bill. By contrast, this speech is short and sweet. New Zealand First supports the bill.

Dr WAYNE MAPP (National—North Shore) Link to this

Well, I guess that speech said a great deal about the way New Zealand First sees its future in this House, did it not? It will be very short—possibly only 1 more week. I am actually surprised that Mr Jones, in recognition of the fact that he may be here for only 1 more week, did not take the opportunity to give a somewhat longer speech. It may, after all, be one of the last speeches he makes in the House.

My colleagues Mr Finlayson and Dr Worth have indicated—and indeed I have to acknowledge the speech made by Mr Fairbrother, as well—that they are experienced advocates in the courts. They know how important this sort of legislation is.

One of the intriguing things about this Judicature (High Court Rules) Amendment Bill—and it is an extremely thick bill—is that it was referred to the Justice and Electoral Committee on 26 August 2008 for a report back by 9 September. Ironically, the committee states, in the commentary on the bill: “Given the short timeframe for consideration, we were not able to hear submissions on the bill.” It is huge, thick bill, but there were no submissions, at all. But, as the committee members quite properly pointed out, this work has been the subject of work over many, many years by relevant committees, primarily the Law Society, and also by the judges and the Bar council, and so forth.

One of the things that is perhaps not as well understood amongst the legal profession as it should be is the status of the rules. A lot of people think that the rules are something that are essentially created by the court itself, or through the process of the court, and that they have a subsidiary aspect about them. That is not the case. These rules are legislation—creatures of statute. The vast bulk of this bill is schedule 2, which is the new High Court Rules themselves. The bill is a complete and comprehensive rewrite of the rules. The bill is called the Judicature (High Court Rules) Amendment Bill, but that should not give people the impression that it is a simple amendment to the rules. This is a new set of rules, with some of the issues set out by my colleagues.

One of the extraordinary features of sitting today, and I must take the opportunity to say this, is that anyone would think this Government believes it is a 4-year Government. The reason I say that is that when I look at the business of the House—and this is an issue of procedure that I need to speak about—we have some 52 items on the Order Paper. There are actually 66, including notices of motion. Huge numbers of these bills have been set down for first reading. I wonder whether the Government intends all of them to have a first reading, because I am aware there are other bills yet to be introduced that would also be put down for first reading. But we have only 1 week of sitting time in which to undertake that exercise.

Why on earth, I ask myself, would a Government with 1 sitting week to go have an Order Paper with 56 items of business, many of which were introduced this week? Why would it do that? The Government has had 9 years. It has had plenty of time to organise a logical and natural flow of business. We would think the peak period of Government business would be in the second and third years—the second year in particular.

One of the remarkable things we noticed late last year and early this year was how incredibly thin the Order Paper was. It got down to about 21 items of business. I find it frankly almost an abuse of procedure for a Government to think, after 9 years, that it can load the House with 56 items of business, pretending that the House will be sitting for weeks and weeks, or for months and months, and that it will send all of these bills off to select committees as if there was no election coming at all. Frankly, that shows a Government that is arrogant, a Government that is tired, and a Government that thinks it can fool people by looking busy when, in fact, we are about to terminate.

I wanted to specifically raise that point with the House because I think the public needs to know the way this Government operates, and the way it essentially abuses the democratic procedure. There is a lack of appreciation that the people have a say, and that they will have a say in just 8 or 9 weeks’ time. Surely we would expect a Parliament to respect that judgment and not pretend that this is a 4-year Parliament.

I congratulate—well, it is less the Parliament in this instance, because although this is said to be a Government bill, it originated directly from the legal profession and the judiciary, and in a sense we are acting as a conduit. Nowhere is that more demonstrated than by the fact that we have a bill of 766 pages. The bill itself, which introduces the schedule, is less than half a dozen pages long—it is 5 pages, in fact—but it does one significant thing in relation to the role and functions of the Chief High Court Judge. It is a very important function.

At one stage, the Chief Justice of New Zealand used to be in the High Court, and then we had a Court of Appeal presided over by a president, and our top court was the Privy Council. With the establishment of the Supreme Court, it was appropriate and necessary that the Chief Justice be in that court. It is proper that our highest judge be represented in our highest court. It always was a rather odd circumstance that our Chief Justice was in a lower court, and that the decisions of the Chief Justice could be appealed and overruled by the Court of Appeal. One would have to say that it was somewhat idiosyncratic. Once we had a Supreme Court, there had to be an administrative judge within the High Court itself to manage the organisation of the judges, such as the planning of cases, the establishment of rules, and so forth. So the judges—and it is the judges, in this instance—have added some additional powers for the Chief High Court Judge in the exercise and management of that court, to make it rather more sensible.

National supports this legislation. The observation that it has taken 9 long years to get it here should, I guess, properly be made. But more seriously, I find there is a pattern of what I see as essentially an abuse of approach by the Government. Loading this Parliament, right at its very terminating point, with 56 bills is, frankly, an example of Government arrogance. I say to those members, some of whom I suspect will not be returning to this Parliament, that the reason they will not be returning is this example of arrogance and pretence that the people do not count. Let me say to those members that the people do count, and they will have their say in 8 weeks’ time.

TIM BARNETT (Labour—Christchurch Central) Link to this

I listened intently to the previous speaker, in the hope that with the extension of his time to 10 minutes we might hear something interesting at the end, and, sure enough, I was waiting for this Government to be attacked on the basis that we are a busy Government. We have 56 items of legislation, all of which have gone through a planning process, all of which have been negotiated through the MMP system, and all of which are sitting on the Order Paper of this Parliament. I think it must be many years since a Government, with 9 proud years behind it, has had a good 6 months of House business sitting there on the Order Paper, ready to go. So if I could respond initially to that, I think that having 56 bills on the Order Paper, far from being a sign of Government arrogance, is actually a sign of Government confidence, of Government efficiency, and of a Government that understands how the MMP system works.

We are here this evening to talk about the Judicature (High Court Rules) Amendment Bill. This is a good example, in spite of the factional nature of the last speech, of MMP in action, because this matter has taken what one could reasonably call a casual and an elongated route through to our Parliament, starting with the Rules Committee beginning to redraft the High Court Rules back in 2004. Now here we are, four-and-a-bit years later, at the end of that process. The legislation is massive; it is detailed. In that sense, in my head it is very similar to the process we recently went through on the Income Tax Act, which produced equally voluminous legislation and was a good example of parties in this Parliament working together to good advantage. Next on our Order Paper is the Walking Access Bill, which again, in a shorter period, has produced a similar level of agreement.

I commend the bill to the House.