Judicature (High Court Rules) Amendment Bill — Second Reading Third Reading 
Judicature (High Court Rules) Amendment Bill — Second Reading Third Reading 
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Judicature (High Court Rules) Amendment Bill 
Second Reading 
Third Reading 
Hon RICK BARKER (Minister for Courts) 
: 
 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) 
: 
 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) 
: 
 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) 
: 
 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. 
DAIL JONES (NZ First) 
: 
 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) 
: 
 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) 
: 
 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. 
Bill read a second time and a third time.