Worth Richard: Judicature (High Court Rules) Amendment Bill — First Reading 
Worth Richard: Judicature (High Court Rules) Amendment Bill — First Reading 
[Volume:649;Page:17956] 
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 [1979] 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.