Judicature Amendment Bill (No 3)

At first blush Part 2 does not seem all that important. After all, it comprises only three short clauses. But as one delves into the wording, one sees immediately just what the repercussions of this important part are. I would like to take up three points that emerge so clearly from those three clauses.

The first proposition I would like to advance to members is simply to say there is a well-known legal tag: it is in the public interest that there be an end to litigation—

💬 Christopher Finlayson: Say it in Latin.

Dr RICHARD WORTH:—and a number of constraints justify that course. Mr Finlayson has invited me to put that tag into Latin, but I am going to leave it for later calls that he makes, and indicate that words like “ut sit finis litium”, or words to that effect, somehow pick up some old schoolboy or law-school Latin—not quite correctly, I suspect. But the point is that it is in the public interest that there be an end to litigation. A curious feature of the appeal process, which is observable in all common law jurisdictions, is that as cases progress through a hierarchy upwards, about one-third of them are reversed. That is so whether they are in Canada, Australia, the UK, or New Zealand. That, I guess, reflects the man-made nature of the legal system—that legitimate opinions can be held at different levels of the process, and produce different results.

That is why we see in clause 7—and this is the first point I am seeking to make in the first, I hope, of a number of calls—the reference to appeals against the decisions of courts being final. We see in that clause that although it states that a decision is final, there are some outs, there are some qualifications, and there are some exceptions. Exceptions are given for decisions of the High Court to be taken both to the Court of Appeal or, in “exceptional circumstances”, to the Supreme Court. There is no definition as to what “exceptional circumstances” might be. Clearly it is undesirable that there be an appeal process that will permit multiple rights of appeal to be exercised, with the consequences I have indicated. That is the primary point I sought to make in relation to Part 2.

But I cannot help but make the comment, in response to what Mr Fairbrother said, that his views in connection with this legislation—probably more appropriately made in Part 2—would cause immense offence to Court of Appeal judges. He told us in Committee tonight that the Court of Appeal is running along a track of populism. That is wrong; it is mischievous. The Court of Appeal, and especially this particular Court of Appeal, does not feel that it has an opportunity to demonstrate judicial activism, judicial creativity, and whereas he is quick to condemn the Court of Appeal for its decision making, he needs to reflect that in the very particular areas he identified, it is interpreting legislation passed by this Government. Much of that legislation National finds substantial fault with.

So there it is—decisions of the court are to be final but subject to a number of exceptions, and those exceptions are to be exercised by leave to appeal. It is generally the case in respect of such leave provisions that they are available both in the court appealed from and in the court the intending appellant seeks to access. That is generally so here, except that we have a situation in terms of our legislation where the Supreme Court exercises an exclusive right to determine what cases come to it. That is why the Supreme Court can be as busy or as slack as it chooses to be, because it can simply refuse to grant leave, and so control its workload in that way.

I do not propose to say very much at all about clauses 7 and 8 in Part 2, but I do want to say something about clause 6. In my second reading speech, I said that it was a splendid example of sloppy drafting. It is something that should not have happened, and it is totally unacceptable that the New Zealand Parliament should pass legislation abolishing leave to appeal to the Privy Council and then have to come back almost 3 years later to tidy up something that had been missed. So a little bit of background is required.

Section 64 of the Judicature Act provides for the transfer of civil proceedings from the High Court to the Court of Appeal in exceptional circumstances. An example in our history of an exceptional circumstance was the decision in 1987 by the late Justice Heron to remove into the Court of Appeal the famous New Zealand Māori Council v Attorney-General case. His Honour thought that the circumstances of the case justified it being dealt with at the Court of Appeal level rather than at the High Court then inevitably going on appeal to the Court of Appeal. So that is what section 64 of the Judicature Act is about. Section 65, which this bill repeals, states: “Decision of Court of Appeal final as regards tribunals of New Zealand …”. But then there is a proviso: “Provided that the Court of Appeal may give leave to either party to appeal to the Privy Council.”

At the second reading, I referred the House to a decision of the Supreme Court in the case Henry John Esdaile Nation v Nicola Mary Nation and to what the Supreme Court referred to as “this curious proviso”. But the reality of the matter is that the proviso should have been repealed 3 years ago. What I find extraordinary—and I invite the Minister to comment on how these things happen—is that schedule 1 of the Supreme Court Act contains a number of amendments to legislation. Part 1 deals with substantive amendments, and there is numerous legislation where the words “Privy Council” were removed and “Supreme Court” inserted. Part 2 deals with certain consequential amendments, and again a similar process whereby lists of statutes were referred to, including the Judicature Act 1908. If there were consequential amendments to the Judicature Act that were picked up in Part 2 of the first schedule, one wonders why this could not also have been a consequential amendment. There were then certain consequential repeals and various other changes that were made as a result of the appeals to the Privy Council being abandoned and the substitution of the Supreme Court.

It is unsatisfactory that these sorts of things need to be revisited 3 years later. It behoves the New Zealand Parliament to do it right the first time. I express my disappointment that this is all too common. In the very short time that I have been here, numerous bills have been introduced that have required this kind of minor consequential amendment because the job was not done properly in the first place. The proviso to section 65 should go. Section 65 should go.

Progress to be reported presently.

House resumed.

The Chairperson reported the Legal Services Amendment Bill (No 2) with amendment, the Courts and Criminal Matters Bill with amendment, and that the Committee had divided it into nine bills, progress on the Judicature Amendment Bill (No 3), and no progress on the New Zealand Council of Law Reporting Amendment Bill.

Report adopted.

The House adjourned at 9:58 p.m.