Judicature (Timeliness) Legislation Amendment Bill

Members, the House is in committee on the Judicature (Timeliness) Legislation Amendment Bill. We now come to Part 1. Part 1 is the debate on clauses 3 to 9—“Amendments to Senior Courts Act 2016”—and Schedule 1. The question is that Part 1 stand part.

I’m pleased to be leading the Judicature (Timeliness) Legislation Amendment Bill through the committee stage. This bill supports the Government’s commitment to an effective and efficient justice system. The bill amends the Senior Courts Act, Criminal Procedure Act, and the Coroners Act to improve timeliness in New Zealand’s courts by maximising judicial resource.

The amendments will increase the cap on the number of High Court judges from 55 to 57, give courts better tools to address proceedings that plainly abuse the process of the court, meaning these can be disposed of quickly by a single judge, reduce duplication at the pre-trial stage of criminal proceedings, ensure appeals are heard at the most appropriate level, and enable coroners to close inquiries they have previously decided to open if it is no longer appropriate to conduct the inquiry. These improvements will ensure judicial resource is focused on the most critical matters.

The benefits of improved court timeliness will be felt across the justice sector. I wish to also draw Minister Goldsmith’s Amendment Paper to the attention of the House for consideration during this committee stage. The Amendment Paper makes a further increase to the number of High Court judges that may be appointed, to 60. This is intended to better enable the courts to respond to unexpected long-term absences. When a judge is unexpectedly on extended leave, for example, due to illness—or serious illness—this puts a strain on rostering and negatively impacts timeliness. The additional three judges would be appointed to cover this unexpected long-term absence to maintain timeliness in the High Court.

The Amendment Paper also makes changes to better support the transition between High Court judges. It would enable an incoming judge to take office up to three months before the retirement of an existing judge. This will make the transition between judicial appointments more efficient. I’m happy to take questions on that as we debate the bill during the committee stage.

There are key changes to this bill that have been made at select committee. In the report to the House, the Justice Committee recommended two key amendments. The first is clarifying that an order to strike out proceedings may be made on the papers. Clause 7 of the bill inserts new sections 164A to 164C into the Senior Courts Act. These provisions relate to striking out or otherwise dealing with plainly abusive civil proceedings. The Justice Committee recommended amending new section 164B to allow a judge to make an order to strike out or otherwise deal with a plainly abusive civil proceeding on the papers.

The second one is clarifying that a coroner need not provide information about circumstances of death. Clause 20 of the bill inserts new section 65A into the Coroners Act to allow coroners to close an inquiry they have earlier decided to open if new information or a change in circumstances mean it is no longer appropriate to conduct the inquiry. For consistency with other existing provisions in the Coroners Act, the Justice Committee recommended that new section 65A be amended to clarify when a coroner does not need to provide information about the circumstances of the death. The coroner would need to have taken into account the public interest in the death and be satisfied there is no clear benefit to the public in providing that information.

I thank the Justice Committee for their work on strengthening this bill and their support in the House progressing this bill through committee of the whole House and the third reading.

Thank you, Mr Chair. Thank you, Minister. It’s interesting, Minister, that we’re focused on the judges, in this amendment, as though the judges are the only people that exist in the whole of the system. In fact, anyone who’s had anything to do with courts, particularly High Courts, will know that the judges are very much a part of a big machine. In fact, the role of judges is probably diminished, truth be known, because, now, of the amount of prescription imposed on judges.

The days of the old character judges like, say, Sir John Jeffries is one that comes to mind, in Wellington in particular, who actually commanded a lot of authority, not just from even their presence in the court room, but from actually the wisdom of their judgments that often resonated right through—whether it be lawyers, police officers, and even defendants. So just interested that this amendment really just focuses particularly around the number of High Court judges.

I’ve got an Amendment Paper, Minister, around the High Court judges. What we’d said is we’ve now—and I notice that the Minister’s amendment has now moved it to be no fewer than 60 or to 60. My amendment says let’s keep this flexible. Flexibility in the system has got to be preferable to the very prescription that I see as being something of a bar to justice or certainly slows justice or prevents individualising a lot of the decisions that smart judges used to make.

My amendment says that, perhaps, we should have the flexibility that says the number of High Court judges appointed from time to time refer to the section 6(2)(b) must not be fewer than 60 but not exceed 65, because this would again allow for the ups and downs, the variations that do come. There’ll be times where there will be the need, for various reasons—for example, you’ll see, at the moment, particularly around where the economy is under strain, there are a lot more civil cases coming through where businesses have come into strife and all the associated legal issues that arise from that. Again, that would just give the issue that may well be we need to go to 63 judges for some time to deal with that. So my amendment is to deal with just that. It’s actually an amendment to the Minister’s amendment, which, of course, is the one that has been placed on table just now.

My question would be: how did we come to the number that we have? Is there any reason why we can’t introduce some sort of flexibility here around five—I’m aware that there is, as my colleague the Hon Dr Duncan Webb pointed out, a lot of cost involved in one of these High Court judges, which, again, reflects on the point I made that a judge is just one part of a very big machine in these courts. So the question is: how did we arrive at the number we did, and is there any reason why we can’t have the flexibility between 60 and 65 to reflect the conditions that may exist at any one time?

The Hon Nicole McKee. You OK?

Yeah, yeah, no. When I stood up, the chair went back, and I went with it.

Greg O’Connor: I hope my question wasn’t that—

Hon NICOLE McKEE: No, no. It was fine. I thank the member Greg O’Connor for putting his thoughts together on this bill. The questions that he asked are really good ones as well. I would like to take the opportunity to be able to answer them. I’m referring to the member’s Amendment Paper 443, where he is looking to amend the Amendment Paper of Minister Goldsmith.

In answer to his questions about the minimum and maximum number of judges, there is a reason why we don’t increase it to 65. That is because the High Court judges are paid through a permanent legislative authority, which is held in section 135(1) of the Senior Courts Act 2016. The judges remuneration is set independently by the Remuneration Authority to maintain judicial independence, and so we need to think about that every time we add numbers to the cap because it means that there has to be an appropriation put aside for that number. It includes, as the member had pointed out, additional staff that need to go with those judges too. To increase the cap even further means having to put aside additional funds.

Now, we don’t tend to go under the cap that we’ve had by saying that we’ll have no fewer than 60. The reality is that when a judge is appointed, they’re, effectively, appointed until they retire. So they’re there for life. But the change in the Amendment Paper that Minister Goldsmith has proposed is to allow the transfer of some of these judges who are coming up for retirement—and there’s quite a few of them coming up for retirement—but there’s also, unfortunately, a number of people who are getting quite sick at the moment. The way that the current legislation is recorded is that we cannot implement a new judge until an existing judge actually retires. Then a new judge comes in and has to have three months’ worth of training, so we’re actually down a judge for three months while that training occurs.

So the Amendment Paper is proposing that we open up to allow an extra three more judges—five in total—with those three judges being able to train within the three-month period that a judge is either going to be sick and stand down or is retiring, and then that way we have no loss and continuity between the judges for that three-month period. So that’s the reason why the Amendment Paper is proposing a request for an extra three, and the reason why we are not capping it at, say, 65, mainly because the funding would have to be put aside, and we think that we’ve landed at the right number, allowing the three-month changeover for three judges at a time, and increasing the cap by two.

If I may, is the danger of that not then, Minister, that the workload is irrelevant in this? We often hear members across the Chamber boasting about the strategies that are being implemented that are going to end up with more people in prison, and, certainly, a harder attitude towards them. Surely a flexible system is one where every part of the system must move?

I remember Bill English saying, in about 2016 or 2017—lamenting—that prisons were a failure of society and lamenting the number of people that we actually had in prison in New Zealand. He also added, “Heck, I’m not going to put more police officers on, because I know that if I put more police officers on, I’m going to need more prisons, and I’m going to need more judges—it’s going to impact on every part of the system.” You may remember during my second reading speech that I mentioned that the courts tend to be the bottleneck in the justice sector—the whole criminal justice system.

Where we can’t even have the flexibility to apply more or less—and, in fact, it’s only ever going to be governed by the Vote—then surely, Minister, it means that we’ve actually got no ability to reflect reality. We often hear that we must be able to have that flexibility to react to the reality of the world in which we’re living. By being only driven by the Vote, as you’ve said, and little else, then we actually just build that bottleneck. In fact, it could create a less or a lower functioning and more unfair justice system for that very reason.

Thank you, Mr Chair. I just want to follow both my colleague, the member Greg O’Connor, as well as the Minister’s response on this, because the number of judges is, I think, probably one of the more significant aspects—and it has, probably, the broadest impact to our court system—of the Judicature (Timeliness) Legislation Amendment Bill.

First of all, in terms of the Hon Paul Goldsmith’s amendment, it’s really heartening to see another further increase from 57 to 60. I’m really, really happy to see that the Government is increasing that, and I also want to acknowledge your response to that, Minister. But can I just check, in terms of that, what the Minister is saying is that the extra three is more about adding that flexibility—so we’re not always going to have 60, because there is a degree of ebb and flow; which is also good, because, I think, that also feeds into I think what Greg O’Connor was saying, in terms of the adaptability when we need it, and there are stages where, maybe, we won’t push up to 60. But as the Minister yourself said, there are people who are getting to retire who are ill, as well.

I wondered—two questions, I think: I do have an amendment on this, as well, and it’s an amendment to the Hon Paul Goldsmith’s Amendment Paper 443, which pushes up from 60 to 69. The reason that it is 69 is because, in the memorandum that the Chief Justice mentioned, in 2030, an additional 25 percent is what the Chief Justice said is needed in our court system to be able to work through and everything—hence 125 percent of 55 is 69. I want to check if the Minister would consider that.

The other question I have for the Minister—and the Minister mentioned, in terms of the appropriation for this—and I don’t know if the Minister remembered that we had this very sort of same conversation during the Estimates scrutiny week, where I asked you, in terms of the appropriation that was set aside for High Court judges, and the fact that the appropriation didn’t line up with the number that is, specifically, two High Court judges or the remuneration equivalent of two High Court judges. But in there it was lower than two, and the Minister responded by saying that, you know, people retire at different times and leave at different times; that appointment may not always be the same. But now, we’re seeing that being pushed up by another three, so I do want to check that that is not something that, at least upon initial reading, on a face level, the Budget 2025 appropriation for courts has allowed for. I want to check with the Minister, then: is this something that will potentially eventuate as kind of working within what the Budget allocation, or is it something that will eventuate as part of a supplementary Budget? I don’t know if the Minister is able to actually speak on that, but I want to check anyway, because the addition of three High Court judges is significant and does mean that, like the Minister said, more money needs to be set aside.

Those are my two initial questions to begin with—actually, three questions: I wondered if the Minister wouldn’t mind just speaking a little bit more about the new clause 4(3), as inserted by Amendment Paper 443, replacing “the Governor-General thinks that 1 or more additional Judges are” with “at any time the Governor-General thinks that an additional Judge is”. I want to check with the Minister, because there’s no explanatory note attached to it, what that change of phrasing means.

I thank the member for his questions. In regard to his amendment lodged at 7.36 p.m., I have the same response I gave to Greg O’Connor, which is that under the permanent legislative authority is how our judges are paid. So the increase of two permanent judges has been accounted for, as the member has pointed out. The extra three that are added on are there for replacement of any judge that retires or gets ill, for example.

It just allows us to bring in that transitional three-month period so that when the judge who is standing down has stood down, they are no longer being paid, and the three—it may only be one at a time—are needed. But as the member mentioned, it’s about the flexibility and allowing up to three judges at any one time to be trained within that three-month period. But the costings for that will change after that period of time. I hope that answers the member’s question.

Thanks, Mr Chair, and thanks, Minister, for your constructive answers to my colleagues’ questions. I have some questions in relation to clauses 5 to 7 of the bill, which are new sections 164A to 164C, and these are the provisions that discussed plainly abusive civil proceedings. I’m really keen to flesh out the strike-out provisions, so I have some questions, and they are all, kind of, centred around those two concepts that, among other concepts, underpin our justice system: the rule of law and the concept of natural justice. The bill talks about if a person—

CHAIRPERSON (Teanau Tuiono): Was that new section 164A to—

TAMATHA PAUL: New sections 164A to 164C.

CHAIRPERSON (Teanau Tuiono): OK—cool.

TAMATHA PAUL: Yeah. So obviously, where a person has been struck out twice within two years—what is it; what is the wording?—they are not going to be able to file further proceedings for the following three years within those senior courts. I just wanted to ask how you arrived at some of those time frames. The time frame of being struck out twice within those two years, is that based on those kinds of provisions and other laws? What rationale helped you to arrive at the three years to be struck out? Is that based on other similar provisions within our law? Is there a reason for why we’ve gone with three years? Interesting that we went with two strikeouts since the Minister is a three-strikes person. But, yeah, I’d be keen to just understand a little bit more about how you arrived at that rationale.

Another question I had is—and apologies if I’m missing some of the details that might have been provided during select committee, but, obviously, Lawrence, as our permanent member on the Justice Committee, is privy to a bit more information—if there was any analysis done on who might be affected by these kinds of provisions and whether there’s been any analysis of, I guess, maybe, what type of person in our society is most responsible for, essentially, wasting the court’s time with plainly abusive litigation? It would be really helpful to understand what type of person is it. Is it a person who is using litigation to abuse another person, which we see sometimes in the family court and other courts when it’s an inter-family or domestic dispute? Is it people who have a lack of understanding of the law and, therefore, are constantly just using the court’s time because there is a lack of understanding? Is it people with a lot of resource who are able to pay for lawyers and all of these kinds of things? So yeah—trying to understand who will be most impacted by the strike-out provisions.

While we’re here, I’m keen to start talking about that language of “plainly abusive litigation”. There is a lot that we could discuss about that phrasing. We know in the Law Society’s submission on this bill that the bill doesn’t provide a definition for “plainly” in this context, so I’m keen to understand: what does that mean? What are some examples of things that are “plainly abusive”? Does it mean that it is the use of strong or inappropriate language? Or is it just that someone is continuing to seek the same recourse with the same outcome, and they just continue to pursue that same avenue over and over again? What does “plainly” mean in the context of this bill, and what does “plainly abusive” mean in terms of case law? What examples can we look to in case law or within proceedings to understand the way that that term is used in this context?

We’ll start there. I’m sure there are probably many more questions around the use of “plainly abusive”, so I’m keen to dive back into that, but I’m keen to get the Minister’s answers on some of those questions.

Thank you, Mr Chair. I thank the member for her questions. I’ve got quite long answers, so bear with me, but I hope it helps.

I’m going to start with clause 7, inserting new section 164A. This is enabling a registrar of a senior court to refer civil proceedings that they believe are plainly an abuse of court process to a single judge of the court in which the proceedings were filed to consider whether to make an order striking out or otherwise dealing with the proceeding under new section 164B, which I’ll get to. The process for striking out or otherwise dealing with civil proceedings that plainly abuse the process of the court, in new sections 164A and 164B, is more modelled on an existing process that is already in the High Court Rules. The bill applies this to the Court of Appeal and to the Supreme Court as well. The intent is to enable proceedings that are plainly an abuse of process to be dealt with efficiently by a single judge in each of the senior courts. Currently, at the moment, they need to get a panel of judges—bringing, quite often, three or more judges in—so this is allowing them to have one. The registrar’s role in referring a potentially abusive proceeding to a judge is the same as the existing role of a High Court Registrar under the High Court Rules that I mentioned just before.

Moving on to section 164B: the new section 164B enables the judge, if satisfied that a proceeding that the registrar has referred to them is plainly an abuse of process, to strike it out or make that order or give directions. A judge can strike out a civil proceeding if they’re satisfied that it’s plainly an abuse of the process—and “plainly an abuse of the process”, I’ve been told, is a very high threshold. The courts have adopted a two-limbed test in determining whether something is plainly an abuse of process. The first test is whether it would be manifestly unfair to the respondent that they be required to respond. The second test is whether right-thinking people would consider that the court was exercising very poor control of its processes if it permitted the matter to proceed further. Again, this is already detailed in the High Court Rules.

This provision is enabling only. A judge will still keep his or her discretion on whether to make an order under that section. The judge can also make an order to give directions to ensure the proceeding is disposed of or proceeds in a way that complies with the court rules. I note—and the member said she’s not on the Justice Committee—the select committee added to new section 164B that another order may be made on the papers without the opportunity to make submissions. This ensures that the new power is consistent with the current strike-out power contained in the High Court Rules, which allows an order to be made without allowing the person who filed the proceeding to make submissions. That came from the select committee.

If I move on to new section 164C, because it just sums them all up together: the restraint that has been made in new section 164C is similar to the existing provisions for a general order in sections 166 to 169 of the Senior Courts Act, which allow a judge to issue an order restraining a party from commencing or continuing proceedings if satisfied that at least two proceedings brought by that person were totally without merit—so meeting those two tests. The key difference from the current law is that the restraint in new section 164C applies automatically where two proceedings are struck out as plainly an abuse of process. It does not require a party to apply for an order or for a judge to make an order on their own initiative. The restraint itself is not able to be appealed, but the strike-out orders that lead to the restraint can be. If a strike-out order is set aside on appeal, the restraint no longer applies. People will still be able to access the courts if they are restrained, but they need to seek permission from the High Court first. They will still have that opportunity. The intent here is to prevent the repeated abuse of proceedings that wastes courts’ time and the time of parties.

Thank you, Mr Chair, and thank you, Minister, for the comprehensive explanation. That’s really, really helpful in terms of that.

I just want, I guess, to pick up the last thing the Minister said, on section 164C, which is that people still have the ability, for example, but they have to go through a High Court judge, which, I think, answers one of my questions, which is around what happens in the kinds of appeals, the kinds of cases being brought, for example, to the Supreme Court, particularly when it comes to things like the New Zealand Bill of Rights Act. Are they still able to do that? I am assuming that a High Court judge will be using their best judgment to decide if it is of a serious enough nature that the order isn’t going to be in effect in that particular case. Thank you, Minister, for that.

I want to check with the Minister: as part of the select committee process, in new section 164B(2A), inserted by clause 7, the Minister did mention that one of the things that was carried over was the idea of “may make an order or give directions … on the papers”, noting that the intention of that is to be able to make it on papers without notice to the person filing the proceedings—“without giving the person who filed the proceeding the opportunity to make submissions.” At the same time, it would not affect the person’s right to appeal an order. It could be—we’ve been doing this for 70-plus hours—but if a person doesn’t know that an order has been made by a judge, would they then have to wait until they re-appeal an order? “How will they know to appeal an order if they don’t know that they’ve got notice?” is, I guess, the crux of my question?

Thank you, Mr Chair. I thank the member again for his question. The allowance here is for the judge to make the order without the papers, without the submission, and there is a process that every judge and court goes through in order to serve orders on a person once an order has been made.

I move, That debate on this question now close.

The question is that Greg O’Connor’s tabled amendments to the Minister’s amendments to clause 4 set out on Amendment Paper 443 be agreed to.

Amendments to the amendments agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendments to the Minister’s amendments to clause 4 set out on Amendment Paper 443 be agreed to.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 443 be agreed to.

Amendments agreed to.

The question is that Part 1 as amended stand part.

Part 1 as amended agreed to.

Part 2 Amendments to other legislation, and Schedules 2 to 4