Finlayson Christopher: Judicature Amendment Bill (No 3) — Second Reading 
Finlayson Christopher: Judicature Amendment Bill (No 3) — Second Reading 
[Volume:629;Page:1764] 
CHRISTOPHER FINLAYSON (National) 
: 
 As my two colleagues have said National supports this legislation although I would observe that the Government in its restructuring of the court system in 2003 forgot about the Court of Appeal. The Court of Appeal plays an incredibly important role in the justice system of this country. It is an intermediate appellate court but it has been under too much pressure for too long. The Court of Appeal report for 2004—I do not have the 2005 one—states that the number of cases dealt with by the court in its criminal jurisdiction in 2004 rose slightly for the third year in a row though there was a decline in civil cases dealt with that year. The court dealt with 506 criminal cases and 113 civil cases. In 2003 the court dealt with 482 criminal and 148 civil cases. That is a very large workload and the reality is that the Court of Appeal—and I am not being critical of the court for I have the greatest respect for it—has taken far too long to deliver judgments. 
I mention two examples. First I mention a case called  
Lai 
 v  
Chamberlains 
 on the issue of whether barristers should have immunity for what they do in court. That was heard in March 2003 and judgment in that case was given 1 year and 1 week later. Of greater practical commercial importance is a case called  
ANZCO Foods Waitara Ltd and others 
 v  
AFFCO New Zealand Ltd 
 which as the member for New Plymouth would know was a very important case for Waitara because it concerned whether ANZCO could establish a meat-processing plant on the site of the old Waitara freezing works. After ANZCO lost in the High Court it sought and was granted urgency in the Court of Appeal. But it took 7 months for the Court of Appeal to deliver its judgment and that was a great concern to all parties and indeed to the people of Waitara. Those are the sorts of delays that have been occurring in the Court of Appeal simply because the judges have been overworked. I criticise the Government because at the time there was a move to establish the Supreme Court and stop appeals to the Privy Council. The issues of the pressure on the Court of Appeal should have been addressed. 
Let us look at the bill. Part 1 deals with the procedures and the constitution of the Court of Appeal. I too support the expansion of the court and the increase in the number of permanent judges but I do not believe that it is the whole answer to the problem. One of the real problems confronting the Court of Appeal is appeals in jury trials in the District Court that go not to the High Court but to the Court of Appeal. I think something needs to be done about a provision for appeals in jury trials to go to a full court of the High Court. I also think that there is a case to be made for introducing a leave provision along the lines of the leave provision in the Supreme Court Act that could act as a first filter to deal with the number of cases that go from the High Court to the Court of Appeal that are meritless and there are plenty of those. On that issue I am in total agreement that there needs to be an expansion in the permanent number of judges on the Court of Appeal. 
The second point concerns the way in which judgments are released. Clause 5 is a very sensible clause. It simply provides that the manner of the delivery of judgments and the number of judges who may need to be present if any can be dealt with by the Rules Committee making rules as it does for Court of Appeal practice and procedure. The old rationale for the fact that judgments had to be given in open court was to provide counsel who received the judgments with an opportunity to seek leave to appeal to the Privy Council orally rather than have to wait for the 21 days within which to lodge a motion on appeal. So given the fact that all applications to the Supreme Court require the leave of the Supreme Court before they can go any further this proposed change makes a lot of sense. 
The Minister glossed over clause 6 which provides that section 65 of the principal Act is to be repealed. He did not really say what section 65 was all about. It states that the decision of the Court of Appeal is final as regards tribunals of New Zealand and then there is a proviso: “Provided that the Court of Appeal may give leave to either party to appeal to the Privy Council”. That is an extraordinary section. It should have been repealed when the Supreme Court Act 2003 was passed. It is an example of sloppy drafting and inadequate work which bedevils much of the legislative work of this House. Frankly it is an embarrassment to the House. Indeed the Supreme Court very charitably commented in the case  
Henry John Esdaile Nation 
 v  
Nicola Mary Nation 
: “We would observe that the purpose of the Supreme Court Act might be thought to have not yet been fully and clearly carried through in amendments to particular provisions. Consider for instance s65 of the Judicature Act and its curious proviso.” This is a very coded way of asking why the section was not repealed in 2003. It really is sloppy drafting and is totally unacceptable. The section goes now; it should have gone 2 years ago. 
The final point deals with appeals against decisions of the High Court on appeal. Again I welcome this change that the decision of the High Court on appeal from an inferior—not in a pejorative sense—court like the District Court will be final unless a party obtains leave to appeal against that decision to either the Court of Appeal although it would be granted only in very special circumstances or in even rarer circumstances directly to the Supreme Court. That is a change that again could have been made 2 years ago when the Supreme Court was being established. 
On the face of it these changes may appear to the lay person to be relatively minor but they are very important. As an intermediate appellate court the Court of Appeal plays a very important role in the justice system of this country. It has been overworked which is why there needs to be an increase in judges. As I said it is not the end of the story. I hope that the Government will look at a leave provision and also do something about the District Court jury appeals that go to the Court of Appeal. That is the first point. The second point is that the bill tidies up some lamentable errors that were made when the Supreme Court was established. They should have been dealt with then and it is an embarrassment that it has taken 2 years to tidy them up.