O'Rourke Denis: Judicature Modernisation Bill — Second ReadingText is incorporated into the Bound VolumeO'Rourke Denis: Judicature Modernisation Bill — Second Reading[Sitting date: 18 February 2015. Volume:703;Page:1738. Text is incorporated into the Bound Volume.]DENIS O’ROURKE (NZ First): New Zealand First will continue to support the Judicature Modernisation Bill. It has been a long long time coming and it is high time for the courts legislation to be updated to allow for 21st century technology to be used effectively to allow better use of resources to improve administration and to make the courts more people-friendly more accessible more understandable and most of all more transparent.The only part that New Zealand First does not support is clause 132 regarding the compulsory retirement of judges. Our reasons are firstly that this is ageism. This is a common problem in many parts of New Zealand business the Public Service and society. Government should be ensuring that people capable of working and who wish to do so are not legally precluded. Under the Human Rights Act discrimination on the grounds of age is unlawful and employers may not contract for a fixed age of retirement. And the provision is unnecessary. Few people carry on when they are unable to perform adequately so there is no real problem. The Chief Judge could and should advise and counsel judges in that position and this bill should have said just that.The age of 70 is not so late in life these days for very many able people that they cannot perform well. Indeed their huge experience makes them extremely valuable and that expertise should not be lost. I remember the late Justice Wilson when I was a young lawyer and he was still “judgifying” well into his 70s. He looked his age but my goodness his mind was very sharp and his judgments were very sound. So although New Zealand First opposes this clause and although it is an important matter we will still vote for the bill as a whole.I now want to commend the Justice and Electoral Committee as it was then for work well done. It worked really hard on this and it is a very difficult and technical bill. It has made many amendments that I support and I want to mention just a few of those. Clause 18 provides for the establishment of a panel of High Court judges to hear commercial cases and other panels to hear other proceedings. The committee inserted new subclause (6) in clause 18 so that any party to a case could request that their case be heard by a panel judge subject to the Chief High Court Judge’s power to determine otherwise. I endorse that. In commercial cases a party will be aware of the particular issues it will be arguing—and there are so many that can arise in commercial cases—therefore it should be able to suggest a judge whom it believes is experienced in those particular matters. That of course is still subject to the Chief High Court Judge’s discretion so there is a bit of a safeguard there.Another important change relates to orders limiting commencement or continuation of civil proceedings under clause 162. These are aimed at the serious problem of vexatious or unnecessary litigation. This can cause distress and financial loss to other parties and of course it can waste a lot of court time. It must of course be balanced by the need to ensure that people have access to the courts for cases having sufficient merit to justify a hearing. Clause 162 provides for the High Court to make limited orders extended orders and general orders restricting to varying degrees a person from commencing or continuing legal proceedings. But that clause might not always be enough so the committee added new clause 162(6) to clarify that powers limiting civil proceedings would not derogate from a court’s inherent powers to control its own proceedings and I also endorse that change. So the court could still control its processes as it sees fit for proceedings without merit in situations where clauses 162 to 165 do not apply.Clause 163(1) is also amended so that the test for the number of proceedings considered by a judge before making an order would be at least two proceedings rather than “more than 1”. This means that a small number of substantive proceedings can lead to an order on the grounds of a substantial amount of related litigation that is without merit and an order can now be made for up to 3 years providing more flexibility than specifying a 3-year period. Clause 165(3A) will refuse a person appealing a decision leave to file a new proceeding. There is simply no need for that right of appeal.Another important new provision would require every final written judgment of a senior court to be published online unless there is good reason not to do so. Clause 167(3) includes as good reasons not to publish all or part of a judgment the existence of a relevant suppression order or a statutory requirement. Also judgments of limited public interest—and there are bound to be quite a few of those—need not be published. And there is an omnium gatherum clause so that a judge can decide against publication in the interests of justice having considered the general presumption in favour of publication. New clause 167(1) requires publication “as soon as practicable” which I am sure will please many parties and other observers although exactly what “practicable” means is not entirely clear.The maximum number of District Court judges caused some discussion in the select committee understandably. Clause 193 sets the maximum permitted number of permanent District Court judges at 156 with adjustments for part-time judges incorporated. The committee majority thought the existing mechanisms for assessing and delivering judicial resources including the appointment of acting judges and a semi-regular review of judicial capacity works well. Although I agree with those who would like regular reviews of judicial capacity this is not a major issue and would not cause New Zealand First to vote against the bill.Part 4 is important. It covers interest as compensation for delay in the payment of debts damages and other money claims in civil proceedings. I am very glad to see this. It is something that needed to be there for a very long time. The absence of that provision did lead to some injustice.The committee has amended clause 452 to insert a worked example to clarify the calculation of interest to be awarded under clause 450. That will assist in making the workings of the provision clear and it is very necessary to do that. Also in the original bill interest was to apply only to judgment amounts exceeding $5000. As the internet site calculator can calculate interest on smaller judgment amounts it is appropriate that it should be possible to calculate and award interest on judgments for $5000 or less and in fact that now must be done. So this is another very good provision.There are many many such provisions in the bill. It is a very good piece of legislation apart from the provision for the compulsory retirement of judges of course but generally it is one that has been well-developed. The committee did a good job. The officials who produced it—and no doubt they took some years to do so—have done a superb job and we should all be proud of this particular piece of legislation being enacted. So overall New Zealand First welcomes the bill and it deserves our full support.