Report from New Zealand
Editor’s note: This entry inaugurates The Court’s Top Court Talk column, a place where distinguished scholars, lawyers and librarians from around the world will report on developments at their “top courts” during the previous six months. It’s appropriate that we begin with New Zealand, because the correspondents, Jack Hodder and Tim Smith, are indeed distinguished barristers, and because New Zealand’s top court is itself quite new.
The Supreme Court Act 2003 (NZ) [SCA] constituted the Supreme Court, based in Wellington, as the final appellate court in the New Zealand court hierarchy (above, in descending order, the Court of Appeal, the High Court and the District Courts) as from 1 January 2004. Previously, for most court proceedings commenced in the High Court, the Judicial Committee of the Privy Council, sitting in London, was the final appellate forum. That connection with the United Kingdom reflected the initial application in New Zealand of English laws, not least the common law, from 1840, and the continuing influence of British judicial decisions, legislation and professional norms in New Zealand long after local lawmaking was entrenched.
The replacement of the Privy Council by a local court had been a matter of legal debate in New Zealand for some decades, as most Commonwealth countries (notably, for New Zealand purposes, Australia in the early 1970s) severed their links to the Privy Council. The 2003 Act attracted an unprecedented degree of political controversy about judicial matters, in part featuring expressions of concerns over lack of consultation, a likely low workload, and the potential for “political” appointments. The last point was largely defused by appointing the five most senior members of the Court of Appeal as the initial members of the new Supreme Court.
The workload issue is, to an extent, in the Court’s own hands. All appeals require the Court’s leave. The statutory criterion for leave is that the appeal must be “necessary in the interests of justice”, which will be the case if the appeal involves a matter of “general or public importance”, a matter of “general commercial significance”, or a “substantial miscarriage of justice” (SCA, s 13). To date, the Court has been cautious in granting leave. In 2006, it granted 23 out of the 75 applications it determined.
The Supreme Court is composed of up to six permanent justices, including the Chief Justice, generally sitting as a bench of five, each with tenure until the statutory retirement age for judicial office, raised in 2006 from 68 to 70. As at 30 December 2006, the membership of the Court was, in order of seniority: Chief Justice Sian Elias, Justice Thomas Gault, Sir Kenneth Keith, Justice Peter Blanchard, Justice Andrew Tipping and Justice John McGrath.
The increase in retirement age may have come too late for two members of the Court, who completed long careers at the bench early in 2006. Sir Kenneth Keith, a judge of the Court of Appeal since 1996, left the Court following his successful campaign for a seat on the International Court of Justice. Justice Thomas Gault, a judge since 1987, retired soon after to take up the captaincy of the Royal and Ancient Club of St Andrews.
The vacancy created by Justice Gault’s departure was filled by Justice Noel Anderson, the then President of the Court of Appeal, Sir Kenneth’s vacancy having been provided for by the appointment of Justice John McGrath in late 2005. Justice Anderson’s elevation follows a career at the private bar followed by a long period as a trial judge on the High Court bench; Justice McGrath was Solicitor General, the government’s senior legal advisor, before his appointment to the Court of Appeal.
The appointments of Justices McGrath and Anderson continue the practice established with the original appointments of elevating senior members of the Court of Appeal in rough order of appointment to the lower court. While it remains to be seen whether this practice hardens into custom, it is evident that it receives support from the perception that it is politically unimpeachable. The scant interest generated in the media by the most recent appointments has no doubt reinforced this view. (Senior judicial appointments are made by the Attorney-General, who is invariably a Cabinet Minister as well as a Member of Parliament.)
That practice has one material consequence for the Court’s functioning: the need for temporary justices to sit when the Court hears appeals from judgments of the Court of Appeal in which a permanent member sat. Three temporary justices, appointed from the ranks of retired justices of the Court of Appeal, sat in eight appeals decided in 2006, a significant portion of the 22 appeals decided by the Court.
The Court’s Business
In 2006, the Court received 96 applications for leave to appeal, divided approximately equally between civil and criminal matters, an increase of approximately 30 per cent from 2005. The process for determining leave applications underwent a minor alteration during the year, with the number of justices set down to determine applications being increased from two, the minimum number required by legislation, to three.
The Court determined 75 applications for leave, granting 23 or approximately 30 per cent. The number is lower than expectations that the Court would hear between 40 and 50 appeals per year (Report of the Advisory Group Replacing the Privy Council: A New Supreme Court (2002) 27), although it is too early in the Court’s life to draw conclusions as to future workload.
Appeals that are granted leave proceed to an oral hearing before a five judge bench, although the Court can sit as a bench of four if need be, as it did in Thompson v the Queen,  NZSC 3. In 2006, the Court delivered 22 substantive judgments covering 23 appeals, allowing the appeal in 47 per cent of cases.
The Court’s caseload comprised cases concerning commercial law, family law and criminal law. Thirty percent of the Court’s caseload was criminal. Somewhat surprisingly, given the reasonable number of applications for leave, no cases concerning questions of constitutional or administrative law came before the Court on substantive hearing.
The overwhelming majority of the Court’s substantive decisions were unanimous, with only two dissents self-identified by the Court in its formal summary, both occurring in the same case (Casata v General Distributors,  NZSC 8 [Casata]. The 3:2 split in this case reflected potentially important divisions of opinion on statutory interpretation, the majority being inclined to look beyond the statutory language and scheme.) However, in only half those cases was the Court able to produce a single judgment, and a number of cases saw dissents on specific issues.
The Court’s approach to judgment writing is broadly consistent that of other New Zealand Courts, albeit that the Court appears to place less weight on producing unanimous reasons than has been the case in the Court of Appeal for some years. Judgments ranged in length from nine paragraphs to 227 paragraphs, the mean being 76 paragraphs long. Consistently with the practice of other New Zealand courts (for a past study of the New Zealand Court of Appeal, see Russell Smyth “Judicial Citations — an Empirical Study of Citation Practice in the New Zealand Court of Appeal” (2000) 31 VUWLR 847), the Court made significant use of decisions of other jurisdictions — nearly 60 per cent of all its case citations were to cases decided in other countries.
As is traditional in New Zealand courts, the Court drew heavily on cases decided in the United Kingdom (36 per cent of case citations), and other Commonwealth jurisdictions. However, the year saw a marked rise in reference to United States jurisprudence, with citations to (mainly federal) cases outstripping citations to Canadian decisions, behind only United Kingdom and Australian jurisprudence in prominence. Reliance on foreign sources of law, and a comparativist approach generally, is uncontroversial: in Condon v the Queen,  NZSC 62 [Condon], the Court issued a unanimous judgment dealing with the right to silence in which it considered jurisprudence in Europe, the United Kingdom, Ireland, the United States, Canada and Australia.
Workload, in terms of judgments authored, was spread unevenly amongst the members of the Court. Justice Blanchard authored the most majority judgments (seven) and the most opinions overall, with Justice Anderson the next most prolific judge with five majority opinions. Putting to oneside those justices who left early in the year, Justice McGrath authored the fewest judgments (five), including only one majority judgment.
As is apparent from the large number of unanimous decisions, no significant divisions appeared in the Court in 2006. Differing approaches might be detected, however, when it came to the decision as to whether to write separately. Chief Justice Elias, Justices Tipping and McGrath were the most likely to author concurring judgments providing their own separate reasons (four cases each). Conversely, Justice Blanchard wrote only two judgments that were not joined by a majority of the Court.
Styles of concurring judgments varied as well, ranging from a single paragraph identifying agreement with the approaches of other judgments on issues of disagreement (Chirnside v Fay,  NZSC 68 [Chirnside], 55, per Keith J.) to full judgments independently canvassing facts, submissions and law, without significant reference to the other members of the Court. Justice McGrath in particular appears to favour the latter style, adopting it in all of his separate concurrences.
In the commercial area, the Court considered matters including the costs jurisdiction of arbitrators (Casata), remedies under the Door to Door Sales Act (see Telecom Mobile Limited v Commerce Commission,  NZSC 17), and issues of notice and discharge in sale of land (see Steele v Serepisos,  NZSC 67).
In Chamberlains v Lai,  NZSC 70 [Chamberlains], the Court unanimously removed immunity from civil suit from barristers for actions arising out of conduct in civil and criminal proceedings, preferring the English approach in Arthur J S Hall v Simons,  UKHL 38, to that of the High Court of Australia in D’Orta-Ekenaike v Victoria Legal Aid,  HCA 12. Lawyers sued for negligence who wish to avoid trial must now rely on the general law of abuse of process, under which rubric issues of finality and inappropriate collateral challenge are now to be dealt on a case by case basis. Justice Tipping would have held that any claim arising out of a criminal proceeding amounted to an abuse of process. While the majority declined the opportunity to consider whether the Court had the ability to make the ruling of prospective effect only (Chamberlains, 95), two justices signaled that they were prepared, in the appropriate case, to issue a prospective ruling (see 147, per Tipping J.; 205, per Thomas J.)
In Chirnside, the Court reviewed the principles relating to whether parties to a joint venture owe fiduciary duties to one another. The Court was unanimous that such parties could owe fiduciary duties, although the justices differed as to the approach. A minority (Chief Justice Elias and Justice Keith) would have held that every joint venture (i.e. carrying on business together with a view to sharing profits obtained) gives rise to fiduciary duties (14); the majority held only that fiduciary duties were owed in the circumstances of the case.
The Court also rejected the Court of Appeal’s award of damages for “loss of opportunity”, in favour of the traditional account of profits. While leaving open the possibility that an equitable award might be made on the basis of “loss of an opportunity,” the Court rejected it in the circumstances of the case (100). A majority was prepared to permit an allowance to the errant fiduciary for effort, skill and enterprise in making those profits (122).
The Court decided cases on the mens rea requirement for attempted sexual violation (see L v R,  NZSC 18), the privilege attaching to medical records forwarded by a complainant to a professional investatory committee (see C v Complaints Assessment Committee,  NZSC 48), and searches of trial records (see Mafart v Television New Zealand,  NZSC 33).
In Condon, the Court considered the scope of the right to counsel protected in section 24 of the New Zealand Bill of Rights Act 1990. After canvassing the approaches of courts in the United States, Europe and the Commonwealth, the Court unanimously concluded that the guaranteed right to counsel found in the United States would not be appropriate in New Zealand (76). Instead, drawing on Australian jurisprudence, the Court held that the test was whether the lack of proper opportunity to have legal representation made or contributed to the trial being unfair so there has been a substantial miscarriage of justice (76). The Court noted, however, that in the great majority of cases, absent “exceptional circumstances,” this standard would be met if the accused conducted his own trial on serious charges, absent a waiver of the right.
The Court also considered a number of family law issues, including the availability of habeas corpus in abduction cases (Taylor v Jones,  NZSC 113), and the test for whether a matrimonial property agreement is designed to defeat creditors (Felton v Johnson,  NZSC 31).
In Secretary for Justice v HJ,  NZSC 97, it considered the basis on which a court may exercise its power under the Care of Children Act 2004, which implements the Hague Convention on Civil Aspects of International Child Abduction, to order the return of an internationally abducted child where a ground for refusal under the Convention is made out. The Court unanimously held that, once a ground for refusal of an order to return was made out, there remained no presumption in favour of return (2).
However, the Court divided on the proper approach to the exercise of the discretion as to whether to grant the order: the majority held that the exercise required a balancing of the welfare and interests of the child against the (deterrent) objectives of the Convention (85). Conversely, Chief Justice Elias would have held that the issue was to be determined solely on the basis of the interests of the child (3), while Justice McGrath would have determined the issue based on the “policies of the Convention”, including culpability for any delay leading to the settlement of the children (138).
Further information on the Supreme Court of New Zealand, including hearing transcripts, judgments and press releases, can be obtained from the Courts of New Zealand website, at http://www.courtsofnz.govt.nz.
Disclosure: One of the authors was a member of the advisory committee established by the Attorney-General to consider whether to replace the Privy Council with a local appellate court, and was counsel for the appellant in Casata v General Distributors,  NZSC 8.