Hon Christopher Finlayson

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.