Fairbrother Russell: Judicature (High Court Rules) Amendment Bill — Second Reading Third Reading 
Fairbrother Russell: Judicature (High Court Rules) Amendment Bill — Second Reading Third Reading 
[Volume:650;Page:18849] 
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.