Worth Richard: Judicature (High Court Rules) Amendment Bill — Second Reading Third Reading 
Worth Richard: Judicature (High Court Rules) Amendment Bill — Second Reading Third Reading 
[Volume:650;Page:18851] 
Dr RICHARD WORTH (National) 
: 
 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. 
Christopher Finlayson 
: I read it every night. 
Dr RICHARD WORTH 
: Some of us have exciting dreams before we wake in the morning; this case might well be an illustration of that. What was said in that case was this: “Although experience demonstrates that when ‘things are done decently and in order’ better justice will result slavish adherence to the letter rather than the spirit effect and totality of the rules is not a recipe for a just and equitable disposition of a matter.” In a second case  
Schmidt v Bank of New Zealand Ltd 
 it was stated: “Procedural rules are the servants of Court proceedings to achieve just speedy and at the least cost expedition of cases. The construction of Court rules should always be approached with care but with a readiness to apply them to meet the justice of the case which is manifest before a Court.” What is being said there of course is that a slavish adherence to the rules of procedure is not necessarily the best way to produce a just outcome. 
I would make the further point from a court lawyer’s perspective that if we look at the armoury available to a court lawyer apart from the innate skill of that lawyer we see that there are probably two key assets in that armoury. Those assets are a sound knowledge of the rules of evidence and a sound knowledge of the rules of procedure. Of course those rules are buttressed by another aspect. That other aspect is the inherent jurisdiction of the court and that inherent jurisdiction is actually flagged in rule 1.6 under the heading “Cases not provided for”. We should reflect that alongside what purports to be a code is an ability to buttress the law by the inherent jurisdiction of the court and there are still significant areas of the law that can be the subject of orders made by the court in its inherent jurisdiction. 
Mr Finlayson in his comments referred to the fact that these rules do not deal well with the issue of discovery and I made that point during the first reading debate on this bill. Discovery is one of those interlocutory proceedings that requires that the party against whom the order is made disclose the relevant documents in his possession power or control. This has become a highly time-consuming element in the interlocutory stages. In fact discovery has now reached such a stage of sophistication that it may run for many months and produce a huge bulk of material. As others have said the growth in email traffic has meant that discovery of itself may be one of the biggest tasks in the whole litigation process as it runs through from the time proceedings are filed until their ultimate resolution. 
Perhaps the last things I would like to speak about are the important provisions in Part 9 which relates to evidence—in particular the taking of evidence by affidavit. I had the good fortune before I was the consul for Monaco to be the consul for Colombia. Colombian consular work involved substantial interaction with the legal process. That was because a large number of Colombian visitors came to this country and got into significant trouble with the law. They either were bringing drugs into the country or were engaged in robberies and similar crimes to gather funds to purchase drugs in this jurisdiction. I became in my own judgment very much an expert in the taking of fingerprints. The taking of fingerprints is an essential part of the authentication of documents under Colombian law. That is why if one was to exhume bodies in Colombia one would find large numbers of corpses with their arms severed at the wrist. The hands are removed and for as long as viable prints can be taken from the fingers they are used to authenticate documents in the name of the deceased person for the wrongful purpose of gaining access to benefits such as superannuation and armed services entitlements. 
I simply say that in the context of the taking of evidence we must be always vigilant on the issue of authenticity of documentation and we have seen that to some extent in the sad events in this House that have troubled the Rt Hon Winston Peters. I am glad to say that the High Court Rules in themselves provide I believe a sound code in connection with the taking of affidavit evidence and the use of that evidence in the court. 
We see tonight the final passage of the Judicature (High Court Rules) Amendment Bill. Others have said that much more work is required and I believe that in the area of evidence that is determinedly so. But I know that National supports this legislation. We would like to see its passage its implementation and its use by lawyers in the civil jurisdiction.