15.57In relation to the issue of why section 99A of the Judicature Act 1908 has never been used, Duncan Cotterill and the New Zealand Law Society ventured the explanation that it does not sit well with the adversarial approach to litigation we have in New Zealand. Duncan Cotterill suggested that, if a technical advisor is needed, the parties would call experts themselves. On the other hand, the Law Society noted that throughout legal history judges have often had to grapple with complex technical evidence, without the assistance of “independent” advisors.
15.58The Senior Courts’ judges were of the view technical advisors have not been used because parties have not sought their appointment. Further, in areas where particular expertise is seen as necessary, they submitted there are more specific provisions available (for example, in commerce cases and cases involving allegations of unlawful discrimination).
15.59The Commission is not convinced all of these reasons stand up to scrutiny. For instance, the main point of the technical advisor (as we see it) is to assist the appellate judges to understand expert evidence that has been called by the parties, which will usually have happened at first instance. As such, it is only indirectly related to the adversarial system and the calling of evidence.
15.60Further, despite parties being able to apply for a technical advisor to be appointed, the Commission considers the purpose of the provision to be for the court to appoint one of its own impetus. The point of a technical advisor is to help the appellate judges understand the expert evidence presented by the parties, and the court will normally be best-placed to determine if it requires this assistance.
15.61The Commission considers the Law Society’s second point is probably correct: the appellate court judges have traditionally had to deal with complex expert evidence themselves without reference to any external advisors, and have usually done so admirably. It is perhaps not surprising then that they have continued to do so, notwithstanding that they can now obtain help if they so require.
15.62In any event, no submitters suggested that the provision should not be kept, or that any further guidance is necessary, so the Commission is content for it to be carried over into new legislation as it is.
R82 The provisions relating to technical advisors should be carried over into new courts legislation.