CHARLES CHAUVEL (Labour)
: The High Court Rules set out the rules of operation for the High Court in its civil jurisdiction. As we have heard, in 2004 the Rules Committee commenced separate projects to redraft the High Court Rules and District Court Rules respectively. That followed the Government’s acknowledgment that it was appropriate for the Rules Committee to decide on the content of any redrafting project, as recommended by the Law Commission. In April 2007 an exposure draft of the new rules was produced. This was released for public consultation. Particular targets of that consultation exercise were the New Zealand Law Society; all of the 14 district law societies that then existed; the New Zealand Bar Association; the New Zealand Institute of Chartered Accountants, as it then was; the New Zealand Business Roundtable; the Ministry of Economic Development; and the Commerce Commission. The Ministry of Justice then commissioned an independent review from David Goddard QC, and his report was included in the nine submissions that were examined in October 2007, which led to further drafting improvement. So it was that in June 2008 the Rules Committee concluded its redrafting project.
I wish to commend the legislation to the House. In its full form it comprises 759 pages: the Judicature (High Court Rules) Amendment Bill, which has 10 clauses, the explanatory note of the bill, and a schedule, which is, of course, where the meat to the legislation is. It contains the new rules, and prescribed forms totalling 223 pages. Although the legislation is massive in size, it is quite straightforward and simple, even for those provisions that require parliamentary authorisation.
Most of the proposed High Court Rules in the new schedule follow the content of the existing rules, but they also improve accessibility. They adopt a plain English drafting style. There is a new layout, with a logical series of parts and subparts that follows the sequence of general proceedings, and then special topics, such as those dealing with the insolvency or admiralty jurisdictions of the High Court.
One of the key changes that require the authorisation of this House and, therefore, of Parliament is the repeal of section 52 of the Judicature Act 1908, which is an obsolete provision. Also, attachment orders are modernised. The practice available in the District Court that provides for attachment orders on wages and benefits to recover civil debts is brought to the High Court. As with District Court orders, employers will, on a conviction, be liable for a fine of up to $1,000 for failing to administer an order—that is
by virtue of clause 10, which is an amendment to the Summary Offences Act—or for discriminating against an employee who is subject to an order. That is dealt with in clause 9 in an amendment to the District Courts Act.
Service out of New Zealand is also modified. The legislation clarifies service out of New Zealand for civil proceedings and the High Court’s powers to grant interim relief in support of proceedings before a foreign court. Indeed, Mr Finlayson and I were at a meeting of the rules subcommittee just this morning, where this matter and several others were considered in some last-minute work on the rules that are now before the House. There are changes relating to international and trans-Tasman court proceedings. Of course, the House will be aware that a treaty has been concluded between the Commonwealth of Australia and New Zealand to make the enforcement of court judgments in all superior courts across the commonwealth and in New Zealand more easy, and the rules that will ultimately emerge from this exercise will also facilitate that process.
The rules codify some common law practices such as freezing orders, encompassing Mareva injunctions; freezing assets, including those of third parties, where there is a real prospect that the assets may be required to satisfy a judgment; and search orders, such as Anton Piller orders, where the ability to search and seize evidence required for a civil proceeding is dealt with.
There are four other important changes. The e-filing provisions, which will commence at a later date by Order in Council once the operational and financial implications for the Ministry of Justice are settled, are important provisions. The former rules relating to constituency election petition rules are omitted. They will be dealt with in stand-alone rules to be made by Order in Council. Rule 1.16, which I want to draw particular attention to, operationalises the use of New Zealand Sign Language in the High Court. This was a matter that I raised at my first meeting of the subcommittee, and I am delighted to see that the provisions have been incorporated appropriately into the rules. Then there is rule 1.22, which is an example of some of the new rules that enable the High Court to respond to modern requirements where procedural safeguards allow, with the agreement of the parties, the court to correspond with foreign courts.
Some tributes have been paid tonight. I think it would be remiss if Justice Fogarty were not recognised. He is the new chair of the Rules Committee, and the judge is doing a fine job in that role. It is not easy to bring together the differing arcane perspectives of lawyers who enjoy debating procedure, as can probably be imagined, but the judge is doing an excellent job in that respect, if I may say so.
It is delightful to hear that this very sensible series of amendments, bringing in these new rules, will receive support from across the House.
Dr RICHARD WORTH (National)
: Others have said that this is not exactly a bowel-gripping topic, but what a delight it is to see with us tonight the Judicature (High Court Rules) Amendment Bill—some 759 pages and 33 parts of closely written material, full of information that will be of great help to lawyers practising in the civil jurisdiction of the High Court.
I would like to start, if I might, in just offering three propositions to the House reflective of core legal principles that should, in my view, underline any successful civil litigation process. The first is picked up in the tagline “Justice delayed is justice denied”, and we all know that. We all know of the sorry state of the civil lists in a number of registries throughout New Zealand, where litigants wait, sometimes for many years, for their cases to come to court, and, as I will seek to develop in the course of the short time I have available tonight, these issues are of real concern.
The first tagline then is “Justice delayed is justice denied”, and the second is “The courts are open to everyone, like the Ritz Hotel”. That is quite a profound but sad
statement, because it indicates that for those who have money there is access to justice, and for those who have legal aid there is access to justice, but there is a big swathe of players in the middle who are denied the opportunity, in an effective way, to exercise rights of access to Her Majesty’s courts and Her Majesty’s judges.
The third proposition that I would seek to advance is founded in a case decided by Lord Denning, a very famous English judge. I am indebted to the Hon Mr Barker for giving me this reference to
Burmah Oil Co Ltd v Bank of England. He noted accurately, I found when I had checked it, that the case citation is  1 WLR 473. When we were talking of this the other day he reminded me briefly of the facts. Documents were inadvertently disclosed in the discovery process of litigation relating to an oil company’s challenging the fairness of a commercial agreement with the bank. What happened was that the lawyers had covered over the part of the material that was privileged, but it was possible, in holding the documents up to the light, to see what had been blanked out. Lord Denning said—in words that I think should be inscribed on every court lawyer’s heart—“In litigation, as in war. If one side makes a mistake, the other can take advantage of it.”, and then closed the comment, as Mr Barker reminded me: “No holds are barred.” That is a reference to the adversarial aspect of litigation, and I am very much aware that there are philosophical schools that would say the time has come to review those adversarial processes and perhaps move to a more inquisitorial system. For myself, I do not agree with that stance.
Here we have these High Court Rules. When I first commenced in practice there were rules known as the Code of Civil Procedure. Now there are the High Court Rules in what I think is the second version. I just want, though, to say something about one aspect of those rules, centring on the regulatory impact statement, because what we are talking about here is basically amending the Judicature Act to provide by way of a schedule this amount of material that I now hold up. These High Court Rules will implement a major rewrite of the current rules, making them more accessible and more understandable for new users, and they closely follow the content of the existing High Court Rules.
Others have spoken about the history of the rules. I do not want to deal with that. But it is asserted with some merit, I am bound to say, that the current rules are outdated. They create a barrier to justice. They are overly complex. They use outdated language. They do not contain current statutory or technological references, and I suppose, for some, they can be difficult to follow, and for some matters contain relevant provisions in different parts. In addition, some necessary improvements to court processes require primary legislation to enable their adoption. I think it was Mr Finlayson who very wisely said to the House that it would have been possible to make most of these changes simply in the context of delegated legislation. Instead the opportunity has been taken to make these changes by primary legislation. So the principal objective is to increase the accessibility of the High Court Rules for court users.
A second objective has been to adopt a plain English drafting style, and to reorganise the rules into a more logical structure. The sequence of the rules now follows the sequence of proceedings for a High Court case with special topics. Those special topics include insolvency and admiralty, and that forms the latter part of it. As Mr Finlayson has also said, there are other objectives, which include allowing electronic filing of documents at the beginning of proceedings, enabling the High Court to issue attachment orders to recover debt like the District Court practice, clarifying the requirements for service outside New Zealand, and codifying the common law tests for Mareva injunctions and Anton Pillar Orders, which can assist the successful conduct and outcome of civil proceedings.
Surprisingly, when I looked through the rules I found no reference to emphyteutic leases. I hope that body of the law is not going to be lost to us, because in that there is certainly fine legal principle that remains of immediacy today. But emphyteutic leases, for the present, will remain, it seems, outside the scope of the rules.
There are, of course, a number of ways in which disputes between parties can be resolved, and there is a classic taxonomy of what those various possibilities are. I guess they start from what in international law have been called good offices, and they include conciliation, mediation, arbitration, and finally litigation. I just pause for a moment on arbitration, because arbitration and mediation in the face of process failures in the High Court have become much more commonly used. I think that is really for two reasons. The first reason is that the delays in the court process are so unacceptable in the context of commercial transactions, and to some extent transactions that have quasi commercial character, that parties are simply not interested in processes of that type with those delays.
The second issue revolves around interlocutory proceedings such as discovery. I have referred to the Burmah Oil case, which was a case about discovery of documents. Discovery of documents is where one, as a party to the litigation, is required to disclose on oath the documents in one’s possession that may be relevant to the proceeding—
Christopher Finlayson: Custody or control.
Dr RICHARD WORTH: Yes, custody or control. And it is right to say that that discovery process can, in major litigation, be a task that drags on over a substantial period of time, is not without complexity, and is often the subject of confrontational challenge. So I do express regret that, in these rules dealing with discovery, there was a better process to be followed, which has not been. If there is any change that Mr Barker might care to make to these rules when he has a careful look at the discovery provisions—if there is time to do that before the next election and a change of Government—I am sure he will come up with a formula that is more suited for more effective, cost-efficient discovery of documents. Of course, when the parties contemplate their choices and think of mediation that is non-binding, think of arbitration that is binding, and think of resolution by court determination, they are probably going to be drawn to a mediation arbitration possibility. Why would that be, and what are the advantages of arbitration? Well, arbitration, of course, is enforceable, and results in an enforceable award. It is the determination, is it not, on disputed questions of fact and law by an arbitrator. And, as a matter of history, it is the oldest adjudicative mechanism of dispute settlement.
Mr Barker is going to be under test for this. I am hoping there will be some changes made. I am hoping that his advisers will blindly lead him down a number of paths, and he will seize on the very best outcome. We in National are certainly keen to help him.
DAIL JONES (NZ First)
: When I saw the Judicature (High Court Rules) Amendment Bill it brought a very warm glow to my heart, because it reminded me of something that Justice Barker once said, before he became a judge. We were discussing civil procedure and a most important issue arose—that is, the question of costs. How does one work out one’s costs on a case? Justice Barker said: “Well, you just hold up the file.” The nice, heavy weight of this particular folder made me think quite warmly that it must have cost a lost of money to get this bill through the system, and it will be very interesting to see how it is carried out.
The High Court Rules, or, as Mr Worth would say, the Code of Civil Procedure, were in existence when I started practice. In looking at this set of new High Court Rules—New Zealand First, of course, will be supporting the bill and its quick passage through the House—I have just a couple of queries. Very little has been done in the mortgagee sale area. Once upon a time mortgagee sales were the domain of the High
Court. One had to lodge one’s documents through the High Court until, I think, the late 1980s, when, as a result of the economic times, High Court mortgagee sales were dispensed with. I notice also the provisions for company liquidation, and I expect practitioners will be very interested in the simplification of the process for winding up companies, which will be big business in the not too distant future and will get even bigger still.
The area that is of greatest interest to me is Part 27 of the new schedule 2 to be inserted in the Judicature Act, which deals with grants of probate and letters of administration. This area of law is something that I was involved with from, I think, as early as 1963, as a clerk in a law firm that had a reasonable High Court probate practice. It is useful to see the new provisions—the new draft affidavits and suchlike—in the schedule. I know that some practitioners have experienced problems with regard to changes in the affidavit for a planning grant of probate, and the probate form and the application itself were brought about by confusion in the Law Society’s draft form on the Internet. I suggest that any practitioner who is having difficulties gets a copy of these rules in advance, to get a better idea of what is required by the Law Society.
These rules have become more complicated over the years, and what was pretty simple once upon a time is now confused. For example, if a deceased person has no will and there is an intestacy, it can become complicated in so far as administration is concerned where a claim is made by the deceased person’s spouse, de facto spouse, or civil union partner, or by one or more of them, as the case might be. Furthermore, the decision of which option to choose in the application in terms of the relationship property legislation can be complicated.
It is something of a minefield at the moment to try to get letters of administration through the courts. I had a dreadful case a while ago where a 76-year-old lady who had been happily married for more than 40 years had to include in her documentation a provision that, no, she did not have a lesbian partner. It is quite crazy the way that the rules have developed, but I guess this is a consequence of modern times.
However, I am sure that these rules will simplify matters. I look forward to them being put through the House as soon as possible. I am sure that the select committee will hear from the Law Society and will take up any comments it has to make. In fact, New Zealand First wants to make sure that the Law Society and any other legal groups that want to make submissions can make submissions and be heard. I doubt that there would be any objections to that at this stage, bearing in mind the 800 or 900 pages of this legislation and the amount of time that has been taken on it. I look forward to the legislation being put through the House before the election.
TE URUROA FLAVELL (Māori Party—Waiariki)
: Tēna koe, Mr Deputy Speaker. Thank you very much for the opportunity to take a call on the Judicature (High Court Rules) Amendment Bill. I have to say that it is a bit of an irony for the Māori Party to be considering yet another bill that presents for debate a set of rules, in this case to help determine and assist the practice and procedures of the High Court. Further up the Order Paper we discussed the development of a code of responsible conduct for users and landholders in the context of the Walking Access Bill, and here we are debating rules that will facilitate the “expeditious, inexpensive, and just dispatch of court business,” through the revision of the High Court Rules. The irony, of course, is that we in this House are debating appropriate codes of conduct, when the majority of the members of this House themselves have been unable to sign up to the code of desirable conduct.
We think the nation noticed that it was only the Māori Party, the Greens, ACT, and United Future that were prepared to sign up to the standards of behaviour and appropriate codes of decorum that uphold integrity, honour, and respect in this House.
Fourteen months ago those four MMP parties united to sign a voluntary code of conduct and invited other parties to follow suit. We were concerned that the behaviour of some MPs in the House had for some time created a poor environment for political debate—unfortunately—and we are of the view that it is not surprising that the general New Zealand public have such little confidence in politicians, when they observe the abusive slanging matches and the level of rudeness that sometimes shape the parliamentary Chamber. So it is a little bit rich, we say, to be sitting and considering legislation to assist the due administration of justice when some parties themselves in this House are unprepared to abide by desirable standards of behaviour.
Māori Party was proud to sign up to the code of conduct, as the code is consistent with the standards we have set for ourselves. The Māori Party, as members will know from the numerous speeches given by us, is driven by kaupapa Māori, by values and principles that have been passed down from our tūpuna, so the concepts of rules that regulate the practice and procedure of the High Court are concepts that we readily understand.
We are also pleased to accept recommendations that have come, we understand, from consultation within the sector. I noted that the draft went through a 3-month consultation process, which especially targeted the New Zealand Law Society, the district law societies, and the New Zealand Bar Association. I am not a lawyer in any way, shape, or form, but I presume that if anyone can understand the significance of the revised rules, it will be those sorts of groups. Yet here is the thing: the Law Commission report states that pending wider constitutional discussions to consider a more just relationship between tikanga Māori and Western law, the law could be more bicultural.
In this bill we have a whole heap of amendments to make the justice system, and therefore the courts, more accessible. Others have outlined some of these issues, and this in itself, we think, is a response to the Law Commission’s 2004 report,
Delivering Justice for All: A Vision for New Zealand Courts and Tribunals. The question we ask, however, is whether it is a case of justice for all. How are the views of tangata whenua, of Māori legal experts, of whānau, hapū, and iwi incorporated in this bill, or is the assumption that the only ones interested in the procedures of the High Court are the judiciary and the legal professionals? Successive Governments have sidelined constitutional discussions, and have failed, really, to take up the opportunity to entrench the Treaty in legislation. Tangata whenua have frequently raised the issue that the very structure of the court system pays inadequate respect to Māori tradition and is insensitive to our needs. Too many Māori simply do not feel that the justice system can be relied upon to deliver justice to them.
Members might be aware that 20 years ago Moana Jackson’s ground-breaking report at the time,
He Whaipaanga Hou: A New Perspective,
described the issue of Māori responsiveness, with particular reference to the courts. That report stated: “Of all our institutions the courts are probably the most determinedly monocultural. The trappings of horse hair and silk, the ritual of procedure, and the very language of the law, are obvious illustrations of their essentially English origins.” The report continues: “They are seen to deny real Maori access to justice, to effectively exclude defendants’ whanau from the process, to favour Pakeha who have power and status, and to be culturally biased in the presentation and disposition of cases.” Fortunately, some of those things have changed dramatically over the two decades, to improve access to justice for all. The traditional bleached hair wigs and 18th century headwear have been out of sight since they were abolished, I am told, in 1996. The language of the law has, with this bill today, come around, and we welcome not only plain, simple English but also te reo rangatira, the language of other peoples, and sign language.
We are pleased to see that recommendation 100 has been taken up, where attention is paid to clarity and simplicity of language, and to proportionality of procedure. The complex and prescriptive rules as they previously stood, acted against due access to justice, so it is very positive to see that we now have rules that make plain sense. We in the Māori Party have always supported any moves to create a system that is more responsive to, and effective for, all New Zealanders, and we say that creating plain language is a pretty good place to start.
We support the focus seen in Part 3 relating to the use of Māori language, translations, and sign language in any proceedings, conferences, or hearings. There is also consideration within the rules to enable the translation of documents into te reo Māori, and indeed there is provision for an affidavit in any language other than English to be filed in a proceeding.
There are still unresolved issues, as set out so clearly in that statement from
He Whaipaanga Hou, Moana Jackson’s paper. Māori have spoken about the desire to incorporate key Māori cultural practices in the courts, such as the ability of whānau to speak in court and to support victims and defendants in culturally appropriate ways. Ongoing emphasis has been placed on the capacity to put culturally relevant factors before the court, and there has been a strong desire to move the court experience away from the process focus towards the making of court appearances meaningful and resolution-based, which includes community involvement.
This bill, like any other bill, could have been an opportunity to do something about these concerns; again, it has not done so. But we will support this bill because we agree with the principal focus of the revision of this legislation, which is to enhance the accessibility of rules to all court users. We support easier-to-understand language, we support the pretty practical changes, the pragmatic changes, such as rules to enable electronic filing of documents, and we support the overall concept that court procedures must be simplified and costs minimised. But we remain of the view that there is still much to be done in enhancing access to justice for all. Kia ora tātou.
KATE WILKINSON (National)
: Like my National colleagues, I rise to speak in support of the first reading of the Judicature (High Court Rules) Amendment Bill. Throughout the debate we have heard that the purpose of the bill is to repeal and then substitute schedule 2 of the Judicature Act; schedule 2 contains the High Court Rules. The rules govern practice and procedure of the High Court, and their purpose is to ensure the just, speedy, and inexpensive determination of proceedings.
The explanatory note of the bill clarifies that the High Court Rules apply to civil proceedings and that they facilitate expeditious, inexpensive, and just dispatch of the High Court business and otherwise assist the due administration of justice by regulating the practice and procedure of the High Court. Although these rules could have been made by way of secondary legislation or Order in Council, there are certain provisions that should be made by way of primary legislation—hence this bill.
New rules are introduced by this bill—for example, the right to make urgent applications orally; the ability of unrepresented litigants, when approaching the courts without notice to the other side, to do so without legal help in appropriate cases; or the ability of the High Court to correspond with foreign courts under procedural safeguards. However, if the Minister believes that this is the panacea to all court delay problems and issues, then he is sadly misguided. More can certainly be done to improve the quality of civil justice in the High Court.
We need to have confidence in our New Zealand legal system, not just in the criminal jurisdiction but also in the civil jurisdiction. Unfortunately, as a recent poll has shown, 62 percent of those surveyed do not have full trust and confidence in the justice
system. Is that surprising? Well, probably not, considering the lack of understanding of the current regime.
When we lodge a question to the Minister asking for the court waiting-times, the delay is almost as bad as the delays in the courts themselves. For example, it took over 3 months to receive a response to our written questions, despite the requirement for a response in 6 days. Then in February this year we asked for an update of the court waiting-times as at 31 December 2007. The answer we received from the Minister was: “Due to the significant amount of manual collation required to produce the information to respond to your question, it has been decided”—and this has nothing to do with Speakers’ rulings or anything, and nothing to do with the 6-day requirement for an answer—“that the ministry shall produce a report on this information on a 6-monthly basis.” The reports, he said, will be run for 30 June and 31 December each year, and the information would be available 6 weeks after that date.
Well, it is now 26 August. The next report was supposed to be for 30 June 2008 and we are still waiting. So the latest data that we can obtain from this Minister in relation to the court waiting-times is as at 30 November 2007—information that we received 4½ months after requesting it. That is 4½ months of delay. So we are expected to believe, or trust, that this bill will be the panacea to all civil waiting-times. It is a start but it is certainly no panacea. What is the evidence? The figures as at 30 November 2007 show that in the civil jurisdiction in Auckland High Court, in defended civil cases, the median waiting-time was 348 days. Before that, as at 30 June 2007 it was 258 days. It has got worse.
Nationally the median waiting-times in the High Court for defended cases have increased from 249 days in June 2007 to 315 days in November 2007. That has got worse. Christchurch High Court median waiting-times have increased from 252 days to 288 days in the same period. It has got worse. In the Dunedin High Court those times have increased from 155 days to 239 days in the same period. It has got worse. In the Wellington High Court they have increased from 257 days to 261 days in that same period. That has got worse. In the Hamilton High Court they have increased from 211 days to 219 days in that same period. That court has got worse. In the Rotorua High Court those times have increased from 160 days to 197 days for that same period. That court has got worse. In the Invercargill High Court those times have increased from 47 days to 83 days in the same period. That court has got worse. That is only in the civil jurisdiction. I have not even mentioned the criminal jurisdiction, which, believe it or not, is even worse.
I could go on. The picture is certainly not great, and it will take more than a tweaking of the High Court Rules to fix what is really an endemic problem within our court system. It is a problem not helped by the tardiness of the Minister in actually giving us the details. Mind you, it is probably no wonder he is tardy, because the details are not pretty. It is no wonder we still cannot obtain an update of the accurate situation as at 30 June 2008—2 months later—and we can only assume that this Government is trying to hide the real picture. The real picture is that the Government has run out of ideas on how to address the problem of court delays. This bill—and it is no small bill—may help, but it will take a lot more than this to restore trust and confidence in our justice system. National supports the bill. It is one measure of many that is needed, but at least it is one measure, and it deals with only the civil side of justice. We also need to deal with the delays in the criminal jurisdiction and the increasing number of stays of prosecution in the criminal jurisdiction.
However, this bill and the High Court Rules do not relate just to court waiting-times, court procedure, and court delays. The speaker from New Zealand First quite rightly mentioned the rules in relation to applications for grants of probate in relation to wills.
It is interesting to note the minutia that these rules go into. There are rules for the margins on the applications; there are rules for the quality of paper that has to be used—it has to be a certain weight—and there are rules for the cover sheets. In the old days we used to have rules for staple holes in wills, because often, if one wanted to photocopy a will, there was a tendency to take the staple apart, photocopy the will, then re-staple it, and if there were extra staple holes in the will, one had to swear an affidavit explaining to the High Court why there were an extra couple of staples holes in that will. No matter what the size of this bill, there does not seem to be any mention of staples. So, certainly, some of these rules relate to form rather than substance.
National is supportive of this bill. It is a step in the right direction. It is certainly not a panacea in relation to the situation of court waiting-times in the civil jurisdiction, or in the criminal jurisdiction for that matter. Those times, as I have said, are getting worse. This bill may help. We hope it will help. It is a step in the right direction, and National certainly supports its expeditious progress through the House.
Hon RICK BARKER (Minister for Courts)
: I move,
Justice and Electoral Committee consider the bill and that the committee report to the House by 9 September 2008.