Parker David: Judicature Modernisation Bill — First ReadingText is subject to correctionParker David: Judicature Modernisation Bill — First Reading[Sitting date: 05 December 2013. Volume:695;Page:15304. Text is subject to correction.]Hon DAVID PARKER (Deputy Leader—Labour): The Labour Party supports the referral of the Judicature Modernisation Bill to the Justice and Electoral Committee. Can I thank the Minister of Justice for the work that has been done on this bill. It is largely administrative. Before I address some particular provisions in the legislation—and could I also thank the Attorney-General for he has probably had a pretty significant role in relation to changes to the court rules—can I set out what the Labour Party’s view is as to the problems that we have in some of our civil court processes.We have courts so as to enable people to resolve disputes without resorting to standover tactics. Essentially courts exist to resolve disputes that parties cannot resolvebetween themselves. Sometimes the cause of those disputes is intransigence or unreasonableness on the part of one party and indeed I would think that a good proportion of the cases that come to trial are of that nature. In some cases it is because there is legal uncertainty as to a principle that has to be resolved by the court system. In either case the mechanism that we have set up in civilised countries to resolve these disputes is to have independent arbiters who are free of corruption and undue influence to determine the disputes and then litigants have the opportunity to put their case before the arbiter. Litigants might not be happy with the outcome that they get because they all want to win and some of them lose but 99 out of 100 litigants are satisfied that the process is fair and that they can put up with the solution that is imposed upon them by the courts because the courts impose solutions and then they can get on with their lives. So we do not have ongoing rancour and neither do we have violence or corruption as the means to settle disputes.The problem that we have got in court systems around the world and in New Zealand is that access to that form of justice which is so admirable is largely a function of cost. If the cost of process becomes so high that most ordinary New Zealanders cannot afford to use the court system then it fails to meet the social purpose that the courts are there to fulfil. It is all very well having a perfect outcome but if that perfect outcome cannot be accessed because the cost of the process is so high then we should be looking at what is wrong with the system in order to make the court system more accessible.In that regard the changes in this bill make some good changes. One in particular will I think cause an increase in the speed of decisions and perhaps make them a bit briefer than they sometimes have been. Decisions over the years have become longer and longer and longer so that some of them read like an academic treatise rather than a fair summary of the facts and an application of the most central legal principles in order to reach a conclusion. Instead we have ever-longer judgments which take ever-longer to prepare which lead to evermore complex forms of process during the trial and therefore cause cost delay and frustration to all those involved.One of the ways in which this is being pushed against is this requirement on District Courts to have information regarding reserved judgments. The Chief District Court Judge must now—once this legislation is passed and assuming that it is—in consultation with the Chief Justice publish information in relation to the process by which parties to proceedings before the court can obtain information about the status of any reserved judgment. It is a good change. Litigants who are facing undue delay ought to be able to raise their concerns and put a bit of pressure upon the decision maker to make a decision.But I am left with the sense that although these changes are good—and I agree with the standardisation of rules in the superior courts and I agree with a lot of the other changes here—I am still not convinced that we have tackled the nub of the problem which is the efficiency of especially civil court processes which remain beyond the pale for most people to settle their disputes through. Let us take the example of the Christchurch earthquakes. We have got this unprecedented level of claim and risk for the insurers. Where we have got insurers who have a practice—and I know this from my own practice and I am sure that the Attorney-General will be able to say what his experience in practice in respect of this was too—insurers in respect of legal issues that are contested face a class action risk in that if a decision has precedent value that goes against the insurers then they might have 100 cases over time that would have financial consequences for them as a consequence of that legal decision.Because of the enormity of the Christchurch earthquake event some of those legal principles that are contested would have effects on thousands of other claims that are on their books. The response of the insurance company faced with that possible classaction risk which is what I will call it—I do not mean litigants joining together in a class action but I mean that a lot of claims of the same class would line up behind those test cases—is that they are very reluctant to get a court decision that is adverse to their interests because of the class action risk that follows.The best way through that conundrum in the response to the Canterbury earthquakes in my opinion has been for some of those court cases to be brought through and have legal determinations made as to what the legal principle is. Whether that goes for or against the insurer or for or against the insured we would have more legal certainty for those advising the insured—the people who have suffered losses and who are having claims that are being declined or that they cannot settle. We would have desirable legal certainty which would enable the parties to that litigation to have their claims resolved but it would set a precedent for the thousands of others who follow.Because the cost of processes is so high because the insurance companies know that they can elongate these processes and because they face class action risk there are legal impediments put in front of those who are trying to resolve those disputes and when they get close to court I bet that so many of those cases are settling on terms that are confidential and that do not result in a legal precedent that would be useful to resolve all of the other thousands of insurance disputes that there are in Christchurch.My problem with this legislation is that I do not think it fixes that problem. There are two ways that that problem could have been fixed. First I believe that the Crown should in the public interest be selecting 100 or 200 cases that the Crown will fund—not funded by the insured—because of the public interest in legal certainty in respect of the hundreds of thousands of claims that we have in Christchurch. The Crown should have funded some test cases which it could have established through a panel of wise advisers as to what the legal principles and legal disputes were that needed to be resolved. The Crown should have funded it in the case of Christchurch but in the absence of the Crown funding them those legal processes should be affordable—and they are not in New Zealand. This legislation does not fix that.I am a lawyer. I know that the propensity of lawyers is to strive forever towards perfection. This striving towards perfection in respect of civil processes has gone so far that it has become the enemy of the good and the courts are not meeting their function which is to provide an accessible means for the resolution of disputes.In closing this is good legislation. It does make progress in that regard. But the fundamental problems I think are not going to be resolved until we have what judges—or some judges and some lawyers—would see as pretty Draconian rules. This applies particularly in the District Court where a proportion of cases have to be set down for a hearing within—I do not know—say 60 days of the filing of a statement of defence where there are limits on the number of interlocutory proceedings where judges take control of their courts where there are quotas on the number of judgments that have to be delivered orally and where there are restrictions on the number of trials that are allowed to extend beyond a certain time period. This is necessary so that we drive responsibility on the part of lawyers and on the part of judges to control their own courts and provide access to justice.