Canterbury Law Review
Last Updated: 29 April 2013
RICK BIGWOOD (EDITOR) THE PERMANENT NEW ZEALAND COURT OF
APPEAL ESSAYS ON THE FIRST 50 YEARS
Hart Publishing, Oxford and Portland, Oregon, 2009, 404pp, rrp $194
Reviewed by Associate Professor Ursula Cheer, School of Law, University of Canterbury
This extensive collection of essays put together by the prolific and seasoned
legal editor, Rick Bigwood, is a rich retrospective
of the Court's
jurisprudence, and includes abundant statistics, legal, theoretical and
historical analysis, the odd biographical
snapshot of some of the judges, and
one or two photos. In its black dust jacket emblazoned with a silver fern, the
book rather disconcertingly
reminded me of All Black regalia. Still, I can
report that this is a game in 9 chapters and legal discourse is the winner on
day. The book arose from a day-long conference held by the Legal Research
Foundation in March 2008. The Foundation deliberately chose
legal academics in
the main to present papers. This has produced a set of essays of some depth but
considerable variety, and means
the volume repays a steady read.
Being empirically inclined, I turned first to the back of the book, where past President, Sir Ivor Richardson, treats the reader to a glance at an insider's scrapbook. Chapter 9 is made up of diverse materials relating to the Court, including an historical outline, a discussion of procedures and pattern of citation, decision output together with appeal and workload statistics, and accompanying tables and graphs. There are broad comparisons with overseas jurisdictions, for example, the Court stood out in allowing approximately 50% of civil and criminal appeals, while overseas appeal bodies were not as even-handed. Sir Ivor concludes that the Court has truly become an indigenous but open-minded body. Although some of the other chapters belie this view in certain areas, it seems a sustainable overall conclusion. Conclusions from the statistics are harder to generalise about — for example, Sir Ivor hesitates to suggest why the current clerks he asked to list the most significant decisions of the Court generally chose differently from members of the judiciary and the senior bar. However, the former President is keen to promote further empirical research and so the chapter also contains a very clear suggestion for a citation project which would make an excellent proposal for some enterprising legal researcher.
I did wonder why Chapter 9 was not placed at the start of the book, as seems its natural place. However, on finishing it, I could see that perhaps the numerous tables and other accompanying data were better placed at the end as Appendices. In any event, Emeritus Professor Jim Evans leads off the book with his partially empirical study of precedent in the permanent Court of Appeal. This chapter also comes with two appendices: one is a table of the outcome of reviews since 1986, and the other deals with the increase in the length of judgments. Apart from this, the chapter is an analysis of how the Court took unto itself greater freedoms in terms of precedent; freedom from being bound by the House of Lords and the Privy Council, and finally, freedom from its own decisions. Evans identifies this as a sea-change which was inevitable historically, but which has resulted in an unprincipled approach to use of overseas authority. In rejecting a view of the Court as having a conscious law-reforming role, the analysis is essentially a conservative one. Evans also sees the developing Bill of Rights jurisprudence as destructive of stare decis in encouraging searches of overseas cases and reports. He seeks the wraithes of certainty and predictability, and is uncomfortable with the 'difficult choices between values' which necessarily accompany nascent human rights law. Although Evans expresses less concern in relation to the overruling of the Court's own decisions, he again rejects any perceived reforming zeal, dislikes clever avoidance of precedent by, for example, arguing by analogy with statute, and would only have cases overruled if they are not only wrong but also cause harm. This harm requirement is itself apparently incapable of clear definition, and Evans acknowledges it is not a simple concept. Thus broad social harm will do, as well as occasional injustice or inconsistency with general principle. This does not appear to deliver any greater certainty. Readers of this chapter will find they either agree with Professor Evans or not. Nonetheless, the essay is useful in questioning our notions about precedent, and in testing the 'factors' which tend to be used by the Court when applying precedent against a number of conservative assertions about certainty and predictability.
These two empirical studies bookend a variety of other essays about the Court of Appeal. These include quite detailed, micro-analyses of specialised areas of the law, such as the piece by Professor Stephen Todd on accident compensation and tort litigation in New Zealand. As Todd points out, New Zealand's ACC regime is unique in the world, and in that sense, the decisions of the Court about its various and endless statutory manifestations are also unique. Although the chapter concludes that the Court of Appeal will continue to play a central role in this area of the law, it appears to be largely at the mercy of whatever the government of the day thinks about the scheme, in terms of the actual questions it will be called upon to decide. For that reason, it is probably sensible for the focus of this chapter to be on particular self-contained issues arising under the current scheme, such as definitional problems relating to injury, and the place of exemplary damages.
Professor Philip Joseph also presents a fairly specialised analysis of the Court's role in the development of administrative law, as do Professor Peter Watts in relation to company law and Dr Julie Maxton in a short chapter on aspects of equity in commercial dealings. The latter two use a close analysis of chosen cases, while the chapter on administrative law tends to interrogate the dicta of individual judges. Joseph concludes that while the Court of Appeal has tended to follow the United Kingdom rather than lead, its method of application has been original and compelling. Maxton focuses on three rather disparate issues in which she considers the Court has played a significant role — the elasticity of the fiduciary principle, developments in relation to causation and remedies, and third parties and their role in fiduciary breach. The chapter comes to a slightly abrupt halt, without any overall conclusion. Readers will be conscious that Watts has made his topic fit the brief, in that he is forced to admit the comprehensive 1993 companies legislation removed much of the impact of previously important decisions of the Court in this area. Nonetheless, within these confines, Watts presents an engaging discussion of cases which continue to have international impact, and of Court of Appeal decisions that went on to the Privy Council, which then stole the thunder of the New Zealand court. He scatters throughout interesting anecdotal titbits, such as that Henry J who sat in Welsh v Nilsson was not a permanent member of the Court, but was nearly permanent in other ways, dying in 2007 aged 105.
The three essays remaining I found the most accessible and compelling, though this of course simply reflects my own inclinations. These pieces do not hesitate to offer constructive critical analysis. Professor Tony Smith discusses the criminal appeal work of the Court, in a chapter that is part historical, part empirical and part comparative with the United Kingdom. He concludes that apart from the question of a need to reintroduce a leave to appeal requirement, and the increasing prominence of miscarriage of justice applications, the original objectives of having a permanent court — heightened expertise, speed, greater uniformity, harmony and certainty, have been met. He does, however, suggest that unmeritorious appeals are diverting resources in the system, and could be weeded out by a legislated leave to appeal regime which would not breach the BORA or international obligations so long as it allowed for full consideration of the nature of the case. Using his experience in advocating for a new body to deal with miscarriages of justice in the United Kingdom, Smith also suggests a Criminal Cases Review Commission might be a good idea here, even though it can be seen as a concession that the judicial process is not infallible, and is therefore something of a sensitive issue. He points out that ordinary, rather than high profile, cases, convinced him in the UK.
In Chapter Eight, Associate Professor Richard Boast openly takes a largely historical approach to what he describes as three clear phases in the legal relationship between Maori and the Crown. These he identifies as investigation by the Maori Land Court of matters of title, pronouncements by the Court of Appeal on the interpretation of statutory references to the Treaty of Waitangi, and the current period of direct settlement between Maori and Crown in which, apart from the momentous Foreshore and Seabed decision known as Ngati Apa, it appears the Court has largely ceased to engage on these issues. After Ngati Apa, Boast suggests, it is clear that native title is recognised in New Zealand common law, which represents a significant shift in stance, attitude, and legal style and culture. Since it came from the Court of Appeal, he regrets the Court's apparent withdrawal from this arena and expresses the hope that it will continue to play an important role of some kind in the future. While settlements are negotiated directly, this seems unlikely.
The chapter by co-authors, Professors Mark Henaghan and Nicola Peart, has the challenging title, 'The Elusiveness of Equality' and deals with 50 years of relationship property appeals. Here, the authors develop a clear and attractive thesis that suggests the Court has had to be prodded by Parliament to develop the law and that we have lagged behind the United Kingdom as well when dealing with the assessment of the contributions made to a marriage by a principal earner as compared to those made by the primary homemaker. The authors deftly use case law to demonstrate that the Court has been prepared to forge ahead in defining relationship property reasonably broadly, but not in the area of recognising equal contributions where these are non-pecuniary. This is a well-presented and convincing polemic which concludes with a challenge to the Court that equality still remains elusive for primary home-makers.
The book will appeal to academics and those with a particular interest in the Court of Appeal, but it also has valuable general appeal as a resource document in terms of the empirical data contained not only in the first and last chapters, but also found in other contributions. Smith, Joseph and Watts all burst into empiricism at various junctures. The LexisNexis and Westlaw search engines mean that reviews of the law can now go beyond case analysis and speculation, although it is important to acknowledge the limitations of such exercises. The other valuable feature of the essays as resource material is the historical material.
The best essays here are those which offer a mix of detailed contextual analysis and broad longitudinal conclusions about the work of the Court. It is too easy to get mired in annual reviews in our areas of expertise and not see the bigger picture. However, although the topics generally are well chosen and presented, perhaps it would have added to the depth of coverage, if there had been an analysis of the rights jurisprudence of the Court. Although the BORA was enacted in 1990, some time into the 50 years of the permanent Court, it was nearly twenty years old at the time these articles were written. What is more, the Court of course made pronouncements on rights before passage of that Act. It would have been useful and stimulating to see a review of pre- and post-BORA jurisprudence. This might also have given us some clues about what will, I am sure, become a growth area for the Court of Appeal in the future.