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Anderson, S --- "New Zealand Court of Appeal 1958-1996: A History" [2004] OtaLawRw 10; (2004) 10 Otago Law Review 671

Book Review - New Zealand Court of Appeal 1958-1996: A History

(by Peter Spiller,

Brookers Ltd. 2002. xxvi and 475 pages.) This is a book of two halves.^{[1 ]}The first is a history located within the personnel of the Court of Appeal, their story very much, I suspect, as they would like it to be written. It is essentially cosy, testifying to their strengths, avoiding awkward questions. It is generally a-contextual, in the sense that society at large makes noises only off-stage, and it is non-comparative, books on comparable courts getting a collective but anonymous mention on page one (xiii, actually), never to appear again. The practising profession features from time to time, usually in heroic mode as counsel in leading cases, sometimes as commentators on judges’ manners, rarely if ever as evaluators of process or outcome. Judges from lower courts appear only to be confirmed or reversed, save for some collective grumbling now and again, about which more later. This part of the book is, in short, a law book about the people of the law, and as readers of Professor Spiller’s other books will expect, it is a thoroughly good read. It is grounded firmly in law reports and discursive articles by the judges themselves, supplemented by some correspondence with bar and bench, and extensive interviews likewise, including with all judges of the court still living when Professor Spiller began his task. This body of material is impressively large. Professor Spiller does not disclose the basis on which oral information was made available to him, nor is it clear how many of his unattributed statements were sourced in that way. This might have been a problem if major themes had turned out to depend on material obtained only by interview — it is for this reason that there is a New Zealand code concerning oral history, and an illuminating historiography — but Professor Spiller seems to have been careful to use it only to add detail to what can be generally corroborated from publicly-available sources. His main focus is on the individual judges, whom he portrays in rank order, chief justices first, presidents next, then the rest, chronologically within their rank. The book’s second half shifts away from the individual judge to the collective court, from differentiation to synthesis. It contains a short general account of process within the court, a general summary of the law it produced, and concludes with linked sections on its relations with the Privy Council and on its role in creating a separate New Zealand legal identity. Throughout the book there is little by way of theory or systematic explanation, but for each judge and for most thematic chapters cases are selected as particularly apt illustrations, to be treated in greater depth. Appearances matter to Professor Spiller. There is much about his judges’ courtroom manner, much about the rhetoric of their decision-making, their professed objectives, their preferred styles. Professor Spiller acknowledges a cue from the Realists, that judicial personality matters, and then proceeds to demonstrate in considerable detail their generalised conclusion that for every instance there is a counter-instance. Thus Gresson J applied the clear words of a statute, except when he did not (pages 53, 54). Cleary J also preferred the clear and plain meaning of a statute, where he thought it brought the right result (page 60). Turner J was generally reluctant to stray from the point, except when he digressed

(pages 76, 74). The court itself (timeless, impersonal) followed long-standing but otherwise meritless precedents, except when it had a reason not to (pages 291,

293-4). “The court repeatedly refused to allow points to be raised that had not been argued in the court below”, except when judges “indicated they would not be constrained in their decisions simply because the parties had pleaded and argued their case in a certain way in the court below” (pages 240, 264). There is much more of the same. Clearly an interpreter is needed. Unsurprisingly, Professor Spiller offers values as the key, zooming in on each judge to see what he says about values, and then, much later in the book, dripping a few of his results into two chapters on the factors that made for curial decisions. While this method helps understand individual judges — Professor Spiller’s stated aim, after all — it does not produce a history of the court, not if by “history” one means a work which identifies and explains significant continuities and change.[2]It does not tell us what judges were dominant, what values prevailed, or, especially, when and why values changed. His headings are too broad and the treatment too cursory for that. “Common sense”, “awareness of societal attitudes and conditions”, “effect of the decision”, “justice and fairness”, and

“balancing of rights and interests”, which are the section headings for the relevant chapter, all need further unpacking. Alternatively, an approach often taken in other books on courts is to organise the inquiry by subject area. Tax avoidance is a favourite. Did the court disclose an attitude, did it allow ‘technical’ or ‘literal’ readings of tax law to allow avoidance that others would call evasion? If it did were its results overruled by statute, did it change its tack, if so when, and how did it rationalise it? Or did it from the beginning (whenever that was) look to ‘substance’ rather than form, and disallow ‘artificiality’? Or, perhaps, is no pattern evident? A lot can be learned about a court from such investigations. Robert Stevens does it well for the House of Lords, Bruce Kercher for the High Court of Australia, linking the changes that they find to changes in personnel and to other changes in attitude.[3]Professor Spiller’s method does not allow a comparison with those courts, nor does it show the court at work over a period of years in a contentious area such as that. He does use Elmiger v CIR as an illustration in his “factors” chapter, but limply: “the decision was driven by the facts of the case in the light of the statutory provision and the relevant case law” (page 299). This is description without analysis, which works only if the reader knows from elsewhere the significance of what is being described. At other times he tells us that a lot of tax cases were brought, but obviously does not think their results or, rather, any pattern in their results, important (pages

229, 333). Professor Spiller’s unit is, on the one hand, the individual judge in the individual case, and, on the other, the impersonal and a-contextual “court” whose doings he smoothes out to produce long-term accounts, smothering the dynamics of change in the process. Judicial review provides another example. It was an arena of change throughout the period, certainly not all in the same direction. Professor Spiller gives us Daganayasi, where in the portraits of judges we have Cooke P creating a landmark decision, and, in the footnotes, we have Richardson J gnashing his teeth about the price paid for his and Richmond P’s self-restraint (pages 125, 147 note 92).^{[4 ]}Much to investigate here, one would think, and later Professor Spiller tells us that many policy cases arose in this context. But the summary he ultimately gives is bland and condensed, just two short paragraphs of seven lines each, where all is sweetness, light, and brotherly love

(pages 229, 245). His interest is not, predominantly, in analysing the individual judge to understand the work of the court, but in analysing the legal material to understand the individual judge. Putting the same point in a different way, the second part of the book, which treats the court collectively, could have been written exactly as it is without being preceded by the accounts of the individual judges. Whereas in the first part there is a sense of time passing, of personnel changing, in the second part there is not, save for the account of the lessening of the force of binding English precedent. It is difficult to distil from the general part of the book whether or not Professor Spiller agrees with Lord Cooke that the history of the modern court falls into two periods, with the break from about 1976, nor is the reader prepared for Lord Cooke’s references to Business Roundtable, right wing, and populist-oriented criticisms of the court, Maori issues aside, perhaps (pages vi, x, 149 note 164). Far less does Professor Spiller engage with Justice Fisher’s admirable attempt to chart a transition from a “traditional” New Zealand legal method to a modern alternative, which is not easily compatible with Lord Cooke’s periodicity in that it seems (from the sources relied on in its footnotes) to date the critical changes to the late 1980s and early 1990s.[5]It would have been good to have had Professor Spiller’s opinion. In addition to his concentration upon the individual judge, Professor Spiller has much of value to say about the origins and early years of the permanent Court of Appeal. All did not go well. Supreme/High Court judges felt misunderstood

(pages vii, 29, 31). They were assuaged in the end by various devices which, in effect, conferred adjunct status on suitable lower court judges, but we do not get to learn exactly what the problems had been. The government —or was it Wild CJ?

— kept up the practice of assigning temporary judges to make up the numbers in the court long after others thought that continuity was needed to enhance quality. Was this just parsimony and turf wars, or were there differences in perception of the court’s function? Wild CJ also appears as influential in appointments to the court, a sensitive and secretive matter where even the most assiduous and well-connected researcher might not find much to analyse. Professor Spiller sets the scene, but appears not to have included Attorneys-General in his long list of interviewees, though they might have added to the background understanding. We learn the exact seniority within the High Court of every promoted High Court judge, but not what earned him the call ahead of others. Hardie Boys J needed persuasion from Cooke P, but that is not to say that the president had a voice in his selection. The Chief Justice made determined efforts to secure Ian McKay for the court, but whether the object of his persuasion was McKay himself or someone else is left unstated, and though Professor Spiller is clear that McKay J fulfilled the “expectation that he would bring a conservative approach” he does not say whose that expectation was. As for the presidency itself, Professor Spiller is curiously reticent, assuming, perhaps, that his readers already know that succession has always been by seniority, discussing presidents as individuals but not examining how far they have office and how far mere status. What of the function of the court itself? Professor Spiller leads us through each judge’s perception of the judicial role, though often it is unclear whether he is, or they are, addressing judging in general, appellate judging in general, or the particular circumstances of the New Zealand Court of Appeal. Created as an intermediate appeal court it is subject to only sporadic and distant review, thus bearing, nowadays at least, a responsibility usually accorded to final appeal courts. Here the clear line discerned by Tipping J “between error correction on the one hand, and determining principle and policy on the other” could usefully have served as an organising principle both for understanding the likely focus of each judge’s perception and for analysing and evaluating the court’s work over time.[6]

The distinction underlies, for example, Jim Farmer’s complaint that the Court of Appeal’s responses to a crushing workload, quite understandably oriented towards “efficiency”, have tended to reduce the quality of its “guidance [as to] how future cases will be decided.”^{[7 ]}Professor Spiller, by contrast, notes the same developments — the use of single rather than multiple judgments, the partial displacement of oral argument in favour of written submissions — sees their good points, and moves on without engaging. Of course, the court’s heightened responsibility was not a given, but a consequence of its judges’ steady disavowal of the binding nature of English precedent, complemented by the Privy Council’s acquiescence in a conception of a partially localised common law. Professor Spiller documents the steps, stressing, rightly, that only with hindsight do they look easy.[8]However, he does not, as Bruce Kercher has done for Australia and Robert Stevens for the House of Lords, explicitly link this weakening of the force of stare decisis to the final abandonment of the declaratory theory of law (or “law as a science”), though there is a hint of it in his aside that in the first case in the New Zealand sequence the majority judges “also suggested a disinclination to create absolute rules of precedent that might perpetuate erroneous decisions preventing practical justice from being done” (page 385). Justice may be eternal, but the practical must be context-dependent. If there are these linkages, to different legal theories and between jurisdictions, then the current interest in New Zealand’s separate “legal identity” may need to take on a broader comparative aspect. Justice Fisher’s excellent “then and now” study may need some more “here and there”, looking, no doubt to his regret, rather more seriously at England and Australia, for of his seven defining characteristics of New Zealand’s present legal identity only “international eclecticism” obviously distinguishes New Zealand. Professor Spiller, however, contents himself with the formal proposition that New Zealand’s separate legal identity means that its courts are (very nearly) beholden to no others, plus, of course, a reference to Maori issues, and thus opts out of discussing Fisher J’s analysis. This is a disappointment, that after so much work on the court Professor Spiller is disinclined to engage with the scholarship of others, or even to link with it, be it contemporary New Zealand analysis, the literature on comparable courts, or the jurisprudence of appellate decision making. What he provides, though, is an archive which others may use to those ends, particularly his skilful and sympathetic judicial portraiture.

Stuart Anderson, Faculty of Law, University of Otago.

Endnotes

[1]And a foreword by Lord Cooke.

[2]It is certainly rather unusual for a book announcing itself as a history to begin with an “historical introduction”. The second part, in particular, could perhaps be better seen as a legal textbook meant for non-lawyers or, perhaps, overseas lawyers. Compare (admittedly at a distance) Richard Abel’s seminal “Law books and books about lawyers” (1973) 26 Stanford LR 175.

[3]Robert Stevens, Law and Politics, 600-603; Bruce Kercher, An Unruly Child, 180-1.

[4]The point, alas, is garbled, because in the text Professor Spiller elides Cooke P’s “substantive fairness” ground with the other judges’ reservation about “mistake of fact”, rendering it unclear whether Richardson J regrets both or just one.

[5]The Honourable Justice Robert Fisher, “New Zealand Legal Method: Influences and Consequences”, in Rick Bigwood, ed., Legal Method in New Zealand, 25-74.

[6]The Right Honourable Justice Andrew Tipping, “A View from the Trenches: A Commentary on the Essays by Justice Thomas and Professor Watts”, in Bigwood, Legal Method, 215-18.

[7]Dr James Farmer QC, “The New Zealand Court of Appeal: Maintaining Quality after the Privy Council”, in Bigwood, Legal Method, 237-249 ; cf Hammond J’s prescription, ibid. 257-8.

[8]Kercher notes that the crucial Privy Council decision, Associated Consolidated Press v Uren, dismayed some senior British Conservatives: Unruly Child, 178.