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Spiller, Peter --- "Realism reflected in the Court of Appeal: the value of the oral tradition" [1998] NZYbkNZJur 3; (1998) 2 Yearbook of New Zealand Jurisprudence 31

Last Updated: 11 April 2015

REALISM REFLECTED IN THE COURT OF APPEAL:
THE VALUE OF THE ORAL TRADITION
by
Peter Spiller*

1. INTRODUCTION

I am presently researching the history of the New Zealand Court of Appeal, covering the period from 1958 (the date when the Court became a separate and permanent Court) to 1996 (the retirement of Sir Robin Cooke as President of the Court). My research has drawn upon two principal sources: the judgments of the Court, and interviews with the judges who have sat in the Court or on appeal from the Court. The interviews have involved conversations with Law Lords of the Privy Council, including Lord Denning (98) and Lord Wilberforce (90), judges of New Zealand's Court of Appeal including the late Sir Alexander Turner (91) and Sir Thaddeus McCarthy (91), and judges of New Zealand's Supreme/High Court including Sir Trevor Henry (94).

In a general sense, the value of interviewing these people is self-evident. Together, they represent hundreds of years of legal experience. Without interviews and memoirs, the wisdom born of their experience is lost to people other than those with whom they come into direct contact. The force of this was keenly felt for me when I heard of the death of Alec Turner in June 1993. The three-and-a-half hours in which he freely shared his life's experience left me with a feeling of kinship with him, and a deep sense of loss even though I met him only that once. But the loss was not total, as I had recorded some of his wisdom and have shared this with others.

BA LLB PhD (Natal), LLM MPhil (Cantab) PhD (Cantuar), Professor of Law, University of Waikato, barrister and solicitor, High Court of New Zealand. I thank the members of the House of Lords and the judges of the Court of Appeal who have so openly and helpfully shared their experiences and thereby made this presentation possible. In particular I thank Lord Cooke of Thorndon and Penlington J for their helpful comments on an earlier draft of this article. Approval has been obtained from each judge for material drawn from interviews.

I have interviewed all permanent Court of Appeal judges from Alexander Turner (appointed 1962) to Ted Thomas (appointed 1996), relatives of the judges who had died before I began my research, a selection of Supreme/High Court judges who sat temporarily in the Court of Appeal, and a selection of Law Lords who heard appeals from the Court of Appeal. All of these judges are European males and so my discussion necessarily excludes the role of women and Maori in the judiciary.

In a more particular sense, I believe that the oral transfer of knowledge is valuable for those engaged in the law. As the American Realist approach has stressed, in the quest for the majesty and solemnity of the law, and for legal disputes to be decided according to certain, objective rules, the essential humanity which is at the core of all legal disputes and their resolution can be eclipsed.2 I recall my own decidedly non-realist legal education in South Africa and England, which left me with some knowledge of what "the courts" had decided in sets of compartmentalised cases. The impression which I gained was that the law on the printed pages of the law reports was somehow preordained, like the Ten Comandments brought down by Moses, produced by distant, inscrutable figures, and to be obeyed as received wisdom. All this left me ill-equipped to deal with the realities of law in practice, which revolve around the messy, disorganised dealings of human beings, and where the outcomes can be dependent on chance and frail human nature. My meetings with judges conveyed a strong sense that the process of judging and producing case-law is certainly not exempt from these human realities.

I shall explore the particular insights which my meetings have given to me in five selected areas, namely, the personalities of the judges, the links between these personalities and their judgments, the vagaries of the law arising out of who is on the bench at the time, the realities behind combined judgments, and the workings of the Privy Council as New Zealand's ultimate court of appeal. Some of the insights which
I mention are part of behind-the-scene activities which have not hitherto been revealed on the printed page. Other insights have come from a combination of the oral and printed word, in that comments made have caused me to probe published records and see patterns fall into place.

2. SEEING THE JUDGES AS HUMAN BEINGS

Michael Hardie Boys J once remarked that "Judges are, fortunately, human".3 My interviews with judges were fascinating in uncovering

  1. The distinctive feature of the American Realist approach is its stress on studies of the behaviour of judges. Judge Jerome Frank (Law and the Modern Mind (1930) 55) observed that law cannot be divorced from judicial decisions and was not, in the words of Justice Holmes, "a brooding omnipresence in the sky". See also Roscoe Pound, "The Call for a Realist Jurisprudence" (1931) Harvard Law review 697.

3 M v Y [1994] 1 NZLR 527, 537.

the distinctive humanity of each of them. I repeatedly noticed how clear and forthcoming my interviewees were in speaking of the characteristics which marked their contemporaries, and the similarity of these recollections from one interview to the next. Generally, I was also struck by the self-awareness of judges in speaking of their own approaches, which tallied with the observations of their colleagues.

Of particular interest to me were the influences which had shaped the early life of the judges and the reasons why they had become lawyers. Gordon Bisson and Duncan McMullin remember with gratitude the religious upbringing that their parents provided,' and Thaddeus McCarthy and Maurice Casey developed an interest in law while attending Catholic colleges.' Many of the judges were encouraged by their fathers to enter law, and many of the fathers were in legal practice. Here Ronald Davison was an exception: he was the eldest child of a grocer, and his interest in law was sparked by the report in the newspapers of the Bayly murder case.' Ian McKay's legendary efficiency and capacity for concentrated work can be traced back to his years in the 1940s as a part-time student at Victoria University College. He remembers that the experience of working in the office and attending part-time lectures for 50 hours a week, in addition to written assignments and study, was useful in learning how to manage his time.'

Interesting stories of formative influences were told by Michael Hardie Boys and Thomas Gault. The former remembers that the environment of the Methodist Bible Class and Church got him onto his feet and speaking in public, as prior to that he had been very timid. His father Reginald Hardie Boys, barrister and solicitor and later judge, was a strong personality who had destined his son for the law. Michael Hardie Boys' English and modern language masters inspired in him a love of language (evident in his judgments), and his headmaster a sense of public duty (evident in his current position).8 Gault's childhood was affected by the loss of his father at the age of two, which meant that

  1. Interview, Sir Gordon Bisson, November 1997, and interview, Sir Duncan McMullin, 16 March 1994.
  2. Interview, Sir Thaddeus McCarthy, 15 February 1995, and interview, Sir Maurice Casey, 12 February 1998.
  3. Information supplied by Sir Ronald Davison. The William Bayly murder case of 1934 created a sensation across New Zealand (see H J Wilson (ed), The Bayly Case (1934)).

7 Interview, Rt Hon Sir Ian McKay, 11 February 1998.

  1. Interview, His Excellency the Governor-General, Rt Hon Sir Michael Hardie Boys, 19 February 1998.

his mother was left with the difficult task of bringing up four children during the War and post-War years. Gault valued his rural upbringing in Paraparaumu, which gave him an appreciation of smaller communities, the countryside, the environment and outdoor life. His success at school and the presence of an uncle in a law firm in Wellington led to a legal career.9

Clearly the judges of our courts are not faceless automatons, but personalities with different backgrounds, strengths and attitudes. Facing this truth is in itself of benefit to students of law. Harold Laski wrote that he "wished that people could be persuaded to realise that judges are human beings; it would be a great help to jurisprudence".10

3. DRAWING THE LINKS BETWEEN PERSONALITIES AND JUDGING

Cooke P once replied to those who say that judicial answers depend on the philosophy of the individual judge, by observing that "one must do the best one can to be objective"." My interviews challenged me to trace links between the distinctive personality and background of each judge and his approach to judging. This was not always easy, because of the mix of character traits and experiences of each judge, because judges like other human beings are not always predictable in their actions, and because judging is a complex process involving a variety of factors.

My task was made easier at times by judges such as Ivor Richardson, who were quite explicit in drawing out links in their own career. For example, he agreed that he was cautious on the role of the courts regarding statute and executive action!' He noted that he was influenced by his experience with government ministries and offices, while working in the Crown Law Office, doing advisory work for the government, reviewing tax legislation, and reorganising the tax department. He believes that each branch of government should stick to its last, and has concerns about the abilities of a judge in the traditional court process to deal with public policy questions!'

9 Interview, Rt Hon Justice Gault, 9 January 1998.
10 Quoted in D Pannick, Judges (1987) 27.
11 A-G for UK v Wellington Newspapers [1987] NZHC 377; [1988] 1 NZLR 129, 170.
12 See eg Minister of Energy v Petrocorp Exploration Ltd [1991] 1 NZLR 1, 42-48.

  1. Interview, Rt Hon Sir Ivor Richardson, 13 February 1998. See eg Richardson J's judgment in Auckland Electric Power Board v Electricity Corp of NZ [1994] 1 NZLR 551, 560.

The clearest links that I discerned were between the extent to which judges were steeped in orthodox legal norms and their attitude to legal certainty and the judicial role. I cite as examples Clifford Richmond and Owen Woodhouse from an earlier period and Ian McKay and Ted Thomas from the more recent past. Richmond and McKay were the sons of lawyers, they engaged in commercial law practice in big centres for many years, and they followed a traditional path within the New Zealand legal profession. Both had clear views about the limits of the judge's role. Richmond said:

There are two types of judges: (a) those who deal with each case as it crops up, within the legal principles that apply, involving the application of precedent that was binding...; and (b) those who view cases as opportunities to make and reform the law. I see myself as having been the former type of judge, who would restrict himself in his judgment to dealing with the case that actually was before him.14

McKay said:

Stemming from my long involvement as a director of public companies and in the commercial field, I believe in a system of law where one can go to a lawyer to get an opinion or advice that one can rely on rather than knowing the law only when one gets to court. ... The effectiveness of the law should be judged not by justice done in the particular case but by the 200 cases that do not come to court because the law is certain. Judges see only the tip of the iceberg, and their decisions should minimise the number

of cases that need a decision."

By contrast, Woodhouse and Thomas came from non-legal families and followed more varied careers than some of their colleagues. Woodhouse's father (for whom Woodhouse had enormous admiration) was a self-taught man who was determined to give his children their best chance. Living in Napier, Woodhouse experienced the horror of the earthquake of 1931, and not long after this his father was replaced at work by a younger man, leaving the family without a great deal of money. Woodhouse recalled that he and others who went through the "knock-about experience" of World War II came back to New Zealand with a more independent outlook and with a greater readiness to strike out. He practised as a barrister and solicitor in Napier for 15 years, 8

14 Interview, Rt Hon Sir Clifford Richmond, 24 March 1993.
15 Interview, Rt Hon Sir Ian McKay, 11 February 1998.

of these as Crown Solicitor.16 Thomas' father (for whom Thomas had immense respect and affection) was a shearer and farm labourer who was keen to see his son in self-employed work and from an early age influenced him to become a lawyer. Thomas practised for many years at the bar, engaging in a variety of pursuits, including periods as a Visiting scholar at Harvard Law School and later at the Centre for Socio-Legal Studies, Wolfson College, Oxford.17 Both Woodhouse and Thomas expressed less traditional views about the role of judges. Woodhouse stated:

Amongst the qualities I value in a good judge are good instinctive judgment, common sense, a feeling for people, regard for the human factor, a capacity to laugh at oneself, and the ability to produce crisp, lucid judgments in the minimum of words. Judges do have a creative role, although they try to justify the way the law should be moving by reference to precedents."

Thomas stated:

The formalistic approach is likely to be encapsulated in rules; the substantialist approach (I follow) looks to the substance and seeks to advance the justice of the case. The law is incorrigibly indeterminate and judges have the ability to shape the law to do justice in particular cases and meet the reasonable expectations and needs of the community.... The commercial community has been led to believe that certainty is the be all and end all of the law. ... Uncertainty of the law is in fact brought about by the over-use of the doctrine of precedent, arguing about whether a case relating to its facts applies to the different facts of the instant

case.19

The openly-expressed differences between these judges found most obvious expression in cases which produced conflicting judgments. The kinds of differences evident in the 1970s between the judgments of Richmond P and Woodhouse J 20 were to be repeated in the 1990s

  1. Interviews, Rt Hon Sir Owen Woodhouse, 25 March 1993, 30 March 1994, and 30 January 1998.

17 Interview, Rt Hon Justice Thomas, 11 February 1998.
18 Interview, Rt Hon Sir Owen Woodhouse, 25 March 1993.
19 Interview, Rt Hon Justice Thomas, 11 February 1998.

20 See eg Scott Group Ltd v McFarlane [1977] NZCA 8; [1978] 1 NZLR 553. Richmond P stated: "I

would prefer that this branch of the law be left in a state where professional men of integrity can feel confident that they will not be held liable" (at 570). Woodhouse J stated: "The mere absence of precedent will not be enough to protect the defendant. ...By relating the duty to be careful to the situation of one's neighbour Lord Atkin gave a new vitality and breadth to the duty of care concept" (at 573-574).

when McKay and Thomas JJ sat along side each other on the bench.21 4. DISCOVERING THE VAGARIES OF THE LAW

Edward Somers observed of judges that "different minds may come to different conclusions".22 Linked with my insights into the personalities of the judges and their attitudes to judging were my discoveries of key judgments having been dictated by who happened to be on the bench at the time.

The case popularly known as Lolita was a cause celebre of the early 1960s. It was filed in the Court of Appeal on 8 August 1960 under the official title New Zealand Council for Civil Liberties v Attorney-General." The question at issue in this case was whether Nabokov's novel Lolita was an indecent publication in terms of the Indecent Publications Act 1910.24 At this time the permanent Court of Appeal comprised Kenneth Gresson P, Alfred North J and Timothy Cleary J. However, for much of 1960, North J was on leave,25 and so his place was filled by judges of the Supreme Court acting in a temporary capacity. One such judge was Trevor Henry J, who deputised during the month of September. The file of the case was read by Gresson P, Cleary J and Henry J on the basis that they would constitute the Court hearing the case. The preliminary views of the majority, Gresson P and Henry J, were that the novel did not unduly emphasise matters of sex, as required by the Indecent Publications Act 1910. However, the hearing of the case had to be postponed because of the illness of the leading counsel for the appellants, Wilfrid Leicester." By the time the case was set down for hearing, on 16-17 November 1960, North J had returned. The majority view of the Court, North J and Cleary J,

  1. See eg R v Jefferies [1994] 1 NZLR 290. McKay J stated: "So far as the present case is concerned, I do not think, with respect, that one can imply into the statute a power of search of the kind suggested in the judgment of the President" (at 317). Thomas J stated: "Notwithstanding, therefore, that the recognition of a right to search at common law has traditionally been limited and, then, closely circumscribed, I welcome Cooke P's move to put the common law on a more modern basis in New Zealand. For myself I would not, however, use the language of implication. I simply view the power as part of the development of the common law" (at 323).

22 Cooper v Compton [1987] NZCA 198; (1987) 2 FRNZ 469.
23 Court of Appeal 35/60 (National Archives, Wellington).

  1. Vladimir Nabokov (1899-1977) published the American edition of his idiosyncratic novel Lolita in 1958.

25 Sir Alfred North, Some Reminiscences of Sir Alfred North (1980) 126-178.
26 Interview, Hon Sir Trevor Henry, 30 January 1998.

with Gresson P dissenting, was that the novel did unduly emphasise matters of sex, in a manner which offended against the standards of the community."

The effect of counsel's illness and the change of judicial personnel did not end with the majority decision in Lolita. The legal tests relating to censorship and indecency adopted by North P and Cleary J had a considerable influence in bringing forward the Indecent Publications Act 1963.28 This Act set up the Indecent Publications Tribunal and was designed to loosen the restrictions on publishing imposed by the old Act as interpreted by the Court of Appeal." Kenneth Gresson, newly retired from the Court of Appeal, had the satisfaction of becoming the first president of the Tribunal.

Another way in which key personalities can affect the outcome of particular cases is through the ability of one judge to persuade and the preparedness of another to be persuaded on the issues and merits. The case of Transport Ministry v Payn,30° raised the issue of whether the words of the Transport Act 1962 should be interpreted so as to allow traffic officers, for the purpose of exercising their powers, a right to enter and remain on private property against the will of the occupier. The three judges who heard this case were Clifford Richmond P, Owen Woodhouse J and Robin Cooke J. By the end of the hearing Richmond P and Cooke J were prepared to allow the right of entry as a necessary implication of the Act, by virtue of the powers concerned and the purpose of the statute, and in the light of the facts of the case. However, Woodhouse J opposed the idea that traffic officers could intrude into private property in the way that they did in this case, and believed that basic rights of people could not be inferentially overridden.31 In the period that preceded the handing down of the reserved judgments, Richmond P would not be shifted from his position, but finally Cooke J was persuaded of the Woodhouse J line. Analysis of the three judgments of the Court reveals the unequivocal positions of Richmond P and Woodhouse J, and the ambivalent views of Cooke J preceding his final decision."

27 In Re Lolita [1961] NZPoliceLawRp 2; [1961] NZLR 542.
28 See Customs v Lawrence Publishing Co Ltd [1986] 1 NZLR 407, 410.

  1. Indecent Publications Act 1963, ss 3, 11 and 12. See (1963) 336 New Zealand Parliamentary Debates 1701 and 1708.

30 [1977] NZCA 1; [1977] 2 NZLR 50.
31 Interview, Rt Hon Sir Owen Woodhouse, 30 January 1998.

  1. See Transport Ministry v Payn [1977] NZCA 1; [1977] 2 NZLR 50, 54-55 (Richmond P), 59, 62, 64 (Woodhouse J) and 68-69 (Cooke J).

5. UNPACKING COMBINED JUDGMENTS

Frequently the Court has produced a combined judgment of its members. In criminal cases, statute dictates that the judgment of the Court of Appeal be pronounced by one member of the Court unless "in the opinion of the Court the question is one of law on which it would be convenient that separate judgments should be pronounced".33

It is the combined judgment that can be most deceptive as presenting uniformly received wisdom from on high. In fact, such a judgment can be the product of lengthy and heated discussion, redrafting and compromise. While the person who delivers the judgment is usually the person primarily responsible for its composition, the judgment may be the product of different judges writing parts of the whole.34 These behind-the-scenes activities may be illustrated by the following two cases.

In R v Lorimer,35 the trial for murder in the Supreme Court had been conducted on the basis that the only question which the jury had to determine was that of insanity. Counsel for the accused asked the judge to inform the jury that a special verdict of not guilty on account of insanity did not mean that the person concerned was immediately freed but rather that the person was kept in custody until the pleasure of the Minister of Justice was known. The judge refused to give this direction, and the jury ultimately returned a verdict of guilty but with a recommendation to mercy. The case on appeal was heard by Alfred North P, Alexander Turner J and Thaddeus McCarthy J. North P and McCarthy J thought that, in the light of a Privy Council decision,36 the trial judge's stance had been correct. However, Turner J was not prepared to say that in no circumstances should the jury not be informed of the consequences of a successful plea of insanity. Much discussion

33 Criminal Appeal Act 1945, s 18, and Crimes Act 1961, s 398.

  1. The Privy Council judgment in Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZLR 513 was the product of Lord Lowry and Lord Templeman; the judgment in Wybrow v Chief Electoral Officer Wybrow v Chief Electoral Officer [1980] 1 NZLR 147, delivered by Richmond P, was written by Cooke P and Richardson J. The compromises between different views, which a single judgment tries to accommodate, is evident in the bias section of the Re Thomas Royal Commission Royal Commission Thomas [1982] 1 NZLR 252, 275-284, contributed by Cooke J to the judgment of the Court.

35 [1966] NZLR 985.

  1. Attorney-General for South Australia v Brown [1960] AC 432, 454: the Judicial Committee of the Privy Council reversed the order of the High Court of Australia.

ensued, and, despite entreaties from North P, Turner J was determined to write a dissenting judgment if his views were not accommodated. In the end, North P and McCarthy J decided to reach a compromise.37 The result is that the judgment of the Court contains an invisible line down the middle, with the view of the majority first, followed by Turner J's qualification."

Efforts made in the controversial case Re Erebus (No 2)39 produced even more of a tangled web. At the conclusion of the hearing, the Court of Appeal agreed that a draft of the Court's judgment would be written by Woodhouse P, with Cooke J contributing a section on the law of natural justice. However, the draft that Woodhouse P ultimately produced was unacceptable to the rest of the Court, and three of the judges, Cooke, Richardson and Somers JJ, decided to produce a separate combined judgment. Richardson and Somers JJ asked Cooke J to do a basic draft of this separate judgment. Because the section that Cooke J did on natural justice remained a part of the judgment presented by Woodhouse P and McMullin J, this case constitutes a perhaps unique example of one judge contributing to two combined judgments in the same case.40°

6. DEMYSTIFYING THE PRIVY COUNCIL

My interviews highlighted a distinction between public facade and reality in the role of the Judicial Committee of the Privy Council. Possibly because of its distance and its symbolism as a link with Britain and the Crown, the Privy Council has been romanticised as an ultimate fount of justice to which European and Maori New Zealanders can have resort.41

37 Interview, Rt Hon Sir Alexander Turner, May 1993.

  1. The judgment on p 988 of the judgment is divided as follows: that from line 23 to line 31 ("In our opinion ... their verdict") was the view of North P and McCarthy J, and that from line 31 to line 42 ("We do ... to do so") was the section insisted on by Turner J. Over three decades later, one of the counsel for Lorimer, P G S Penlington, was able to use the hard-won qualification inserted by Turner J by giving the appropriate information to a jury (R v Anderson, unreported, High Court Hamilton, T 10/97, 9 December 1997).

39 [1981] 1 NZLR 618.

40 The above account is drawn from several interviews with those who were involved.

41 See P Spiller, A New Zealand Legal History (1995) 233-234.

My interviews made clear that the Privy Council is no less susceptible than the New Zealand courts are to the impact of different personalities and to the struggles and compromises required in dealing with uncertain areas of the law.42 The Privy Council, no less than the New Zealand Court of Appeal, has been susceptible to changes of emphasis, with the presence of Lords Denning, Diplock and Wilberforce,'" followed by Lords Keith, Bridge and Oliver," followed in time by Lords Steyn, Nicholls and Cooke." The outcome of difficult litigation is, in the Privy Council as in other courts, shaped by who happens to be on the bench to hear the case at hand.

Furthermore, the message of the Privy Council on whether the New Zealand Court of Appeal is entitled to depart consciously from English case law has not been consistent." It is no coincidence that, in recent judgments where the Privy Council has shown greater preparedness to accommodate distinctive New Zealand developments, New Zealand judges have sat and played a crucial role. One of the most remarkable examples of this was in the case of Invercargill v Hamlin.'" Here, the Judicial Committee of the Privy Council, comprising four law lords and Michael Hardie Boys J, affirmed that judges in the New Zealand Court of Appeal "must surely" be entitled to depart consciously from English case law on the ground that conditions in England were different." In particular, the Privy Council, including Lord Keith of Kinkel, affirmed that the New Zealand Court of Appeal should not be deflected from developing the common law of New Zealand by the consideration that the House of Lords (including the same Lord Keith)

  1. See the recent differences amongst the Law Lords when they sat in the House of Lords in R v Bartle and Commissioner of Police for the Metropolis, Ex Parte Pinochet.
  2. See eg the judgment delivered by Lord Wilberforce in New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd [1974] 1 NZLR 505.
  3. See eg the judgment delivered by Lord Bridge in NZ Apple and Pear Board v Apple Fields [1991] 1 NZLR 257. See also the House of Lords judgment in Murphy v Brentwood, referred to below fn
  4. See eg the judgment delivered by Lord Steyn in Collier v Creighton [1996] UKPC 7; [1996] 2 NZLR 257. See also Lord Cooke's dissenting judgment in the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655, 711.
  5. Compare Hart v O'Connor [1985] UKPC 17; [1985] 1 NZLR 159 and Attorney General for Hong Kong v Reid [1994] 1 NZLR 1.

47 [1996] 1 NZLR 513.
48 At 519-522.

had decided in a different fashion in Murphy v Brentwood District Council.49

My interviews also made clear that the Privy Council suffers from its distance from New Zealand. This has been evident in cases where, in the New Zealand courts, an understanding of New Zealand conditions has pervaded the argument and the decision in the case in hand and has at times been an unspoken premise.50° Furthermore, of major importance in this far-off forum is the role of counsel, upon whom judges unfamiliar with New Zealand law are vitally dependent. It is clear that the Privy Council has not always had the benefit of the best available counsel nor has it always had the same argument presented on which the New Zealand Court of Appeal has decided.51

A case which illustrates the distance of the Privy Council and the crucial role of counsel is Treaty Tribes Coalition v Urban Maori Authorities." This case was heard in October 1995 and the judgment of Lord Cooke, delivered on 30 April 1996, was the last major judgment that he delivered in the Court of Appeal. The case concerned the respective roles of the Waitangi Fisheries Commission and the Waitangi Tribunal and whether the Commission was required to allocate assets solely to (traditional) iwi or groups of iwi. The central issue was whether the principles of the Treaty, applied to present-day circumstances, entitled urban Maori to benefit directly from the fisheries settlement. By the time the Court of Appeal gave its judgment, there had been seemingly interminable arguments, and the Court judged that the time had come to bring the central issue to a head without procrastination." The Court was very familiar with the relevant legislation (the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, as it had considered this Act in depth in a previous

  1. Murphy v Brentwood District Council [1991] UKHL 2; [1991] 1 AC 398. See also Attorney-General for Hong Kong v Reid [1994] 1 NZLR 1 (Eichelbaum CJ present). This pattern was foreshadowed in Australian Consolidated Press Ltd v Uren [1969] 1 AC 590, where North J was part of the Judicial Committee; and in The Philippine Admiral [1977] AC 373, McCarthy J played a pivotal role.
  2. See eg Lesa v Attorney-General [1982] 1 NZLR 165 and Apple Fields Ltd v New Zealand Apple and Pear Marketing Board [1991] 1 NZLR 257.
  3. By contrast, in the Hamlin case (discussed above), commentators have remarked that Christine French, counsel for the successful respondent, had a charming influence on Lord Keith.
  4. Treaty Tribes Coalition, Te Runanga o Ngati Porou and Tainui Maori Trust Board v Urban Maori Authorities [1997] 1 NZLR 513.
  5. There were three appeals heard together over four days, involving 18 counsel (referred to in Richardson P's judgment at fn 56 below.

case.54 In the course of answering the questions presented, the Court discussed the scope of the commission's duties and gave its definition of the term iwi, about which there appeared to be consensus and on which it concluded further evidence was not needed." In June 1996 the appellants sought special leave to appeal against the findings of the Court of Appeal, and leave was granted on the basis that the questions involved in the appeals were of great public importance." However, when the case came for hearing before the Privy Council, counsel, not having raised this point before, objected that the Court of Appeal had given its definition of the term iwi and discussed the scope of the commission's duties, without allowing evidence on these matters to be called. The Privy Council, without an understanding of the central issue and the history of the wrangles, upheld the appeal on the basis of a breach of natural justice.57 This was certainly an unjustified epitaph to the work that Robin Cooke and his court had done over the years, particularly in the areas of natural justice and Maori matters."

7. CONCLUSION

The value of exploring the realist thesis through the oral tradition can be summed up in one sentence: it confirms the human dimension of the law. It has been seen that judges come to the bench with differing personal backgrounds and views, that these find expression in their judgments, that the outcome of cases is dependent on the composition of the bench, that even supposedly unanimous judgments may be the product of human differences, and that these features persist to the highest level of the court system. One can expect, as the Court of Appeal inevitably becomes more diverse in terms of gender and ethicity, that these features will become more evident.

54 See Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301.

  1. Te Runanga o Muriwhenua and Others v Te Runanganui o Te Upoko o Te Ika Association Inc and Others [1996] 3 NZLR 10, 18.
  2. Te Runanga o Muriwhenua and Others v Te Runanganui o Te Upoko o Te Ika Association Inc and Others, unreported, Court of Appeal, CA 155/95, 165/95, 184/ 95, 26 June 1996, Richardson P.
  3. Treaty Tribes Coalition, Te Runanga o Ngati Porou and Tainui Maori Trust Board v Urban Maori Authorities [1997] 1 NZLR 513, 522.

58 See eg Daganayasi v Minister of Immigration [1980] 2 NZLR 130, 141.

At one level I found the confirmation of the realist thesis, that the administration of justice in the courts is essentially dependent on fallible and variable human beings, to be unsettling and sobering. The examples which I have cited collectively emphasise the inherent uncertainty of the law and legal outcomes especially at the higher level.

At the same time, facing honestly the realities of the judicial system does have positive consequences. This can help prepare barristers to deal realistically with their task at hand, and it can engender healthy criticism of the present answers that our courts give and promote the creative development of the law.

Furthermore, the essential humanity of the court system is its greatest asset. Cases come before the courts reflecting the infinite variability of human beings, and call for sensitive and acute human understanding." On this score, I was personally reassured that our country's leading cases had been decided by the real people I had met rather than by automated waxworks. The overwhelming impression I had of the judges that I interviewed was of kindly, helpful, thoughtful, dedicated and highly able human beings. My experience of the oral tradition causes me to believe that justice, at least as administered in the New Zealand Court of Appeal, has been in safe human hands.

59 " If [the adjudicator's own judgment] be objected to as lacking perceptible indices

the short answer is that no other alternative both satisfactory and practicable at present exists" (R v MacPherson [1982] NZCA 95; [1982] 1 NZLR 650, 652, per Somers J).


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