NZLII Home | Databases | WorldLII | Search | Feedback

Waikato Law Review

Waikato Law Review (WLR)
You are here:  NZLII >> Databases >> Waikato Law Review >> 2000 >> [2000] WkoLawRw 2

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Glover, Kevin --- "Severing the Ties that Bind: The Development of a Distinctive New Zealand Jurisprudence" [2000] WkoLawRw 2; (2000) 8 Waikato Law Review 25


SEVERING THE TIES THAT BIND?

THE DEVELOPMENT OF A DISTINCTIVE

NEW ZEALAND JURISPRUDENCE

BY KEVIN GLOVERT[*]T

1. INTRODUCTION

New Zealand’s Court of Appeal is now operating as a de facto final appellate court for New Zealand. The Court carries out functions similar to those which the Privy Council previously performed in the New Zealand legal system, such as making major policy decisions. In particular, the Court is responsible for developing this country’s common law in a consistent and coherent manner.

Since its reconstitution in 1958 as a permanent and separate body, the Court of Appeal has gradually become less dependent on English precedent and more willing to develop a distinctive New Zealand jurisprudence. One clear signal indicating this trend has been the treatment of House of Lords’ decisions in the New Zealand Court of Appeal. In particular, the Court has become more willing to treat House of Lords’ decisions as truly persuasive, rather than binding in all but formal terms.

This trend coincides with a growing willingness of the Privy Council to allow the New Zealand Court more latitude in developing distinctive New Zealand solutions to legal issues. The growing realisation in both England and New Zealand is that the New Zealand Court of Appeal is both willing and able to come to different conclusions to English courts and that, notwithstanding the respective legal systems’ common point of origin, the New Zealand Court provides a more appropriate means of determining matters of policy in New Zealand cases and for New Zealanders.

This article traces the development of a distinctive New Zealand jurisprudence through selected recent judgments of the House of Lords, the Privy Council, and the New Zealand Court of Appeal.T[1]T The article follows with an evaluation of the extent to which the Court of Appeal is likely to, and should, develop a distinctive New Zealand jurisprudence.

II. HOUSE OF LORDS’ JUDGMENTS IN NEW ZEALAND

The broad approach to House of Lords’ decisions, which the Court of Appeal had followed since the early 1970s, was reflected in North P’s judgment in Bognuda v Upton & Shearer:T[2]T

In my opinion, while judgments of the House of Lords without question, are entitled to the greatest respect, technically we are not bound by the judgments of that august body. Our master is the Judicial Committee of the Privy Council, not the House of Lords, and there is no decision of the Privy Council which stands in the way of this Court following the line which has found favour in America.T[3]T

I shall now analyse two recent judgments of the Court of Appeal, and attempt to discern the extent to which the Bognuda approach remains in place.

1. Pacific Coilcoaters Ltd v Interpress Associates Ltd

In Pacific Coilcoaters Ltd v Interpress Associates Ltd,T[4]T the majority of the Court (Richardson P, Henry and Tipping JJ) indicated the “greatest respect” which House of Lords judgments continue to enjoy in New Zealand. The majority followed the House of Lords’ judgment in Sevcon Ltd v Lucas CAV Ltd,T[5]T despite the strong criticism which it had received in England.

However, Keith J dissented and suggested an alternative approach, while Thomas J dissented on the basis that Sevcon had been wrongly decided:

I would not challenge the correctness of a decision of the House of Lords lightly... A decision of the House of Lords, although highly persuasive, is not binding on this Court... This Court remains free to examine the merits of the Sevcon decision and to depart from it if it thinks it was wrongly decided.T[6]T

Thomas J also recognised the practical difficulties resulting from an appeal to the Privy Council:

The parties have a right of appeal to the Privy Council and I cannot imagine that Their Lordships on the Board, while approaching the question with impeccable open-mindedness, would wish to review Sevcon or decline to follow it, certainly in the absence of a unanimous decision by this Court in declining to adopt it.T[7]T

2. Morrison and Van Dorsten v KPMG Peat Marwick

The issue in Morrison and Van Dorsten v KPMG Peat MarwickT[8]T was whether the first respondent, KPMG, as a concurrent tortfeasor, could obtain the benefit of a compromise entered into between the appellants (Morrison and Van Dorsten) and the second respondent, Holman Construction. The House of Lords delivered its judgment in Jameson v Central Electricity Generating BoardT[9]T during the hearing of the case.T[10]T Their Lordships held, by a four to one majority, that settlement by a concurrent tortfeasor extinguishes a claim against another concurrent tortfeasor.

The New Zealand Court of Appeal refused to apply Jameson in Morrison’s case. Thomas J felt able to distinguish Jameson on its facts, but also found their Lordships reasoning in Jameson to be unconvincing and listed several reasons why the case should not be followed, in the event that it could not be distinguished.

Thomas J held that applying Jameson would be contrary to established principle; it would normally produce results contrary to “common notions of justice”; it would be inconsistent with general Parliamentary developments in the area; the decision was not based on trade or commerce needs; it did not match with the reasonable expectations of the community; as a so-called “hard case”, it would lead to much more litigation in attempts to search for the boundaries of the rule; and the decision was unlikely to be followed overseas.T[11]T The general tone of these criticisms is that it would have been inappropriate to apply the case in New Zealand, as many of the reasons related to Thomas J’s perceptions of the policy needs of New Zealand society. Thomas J cited Lord Steyn for the proposition that the issue was largely one of policy:

In a less formalistic age, [Steyn LJ] said, it is now clear that the question whether the release of a joint tortfeasor should operate to release the other tortfeasor is a policy issue.T[12]T

The corollary of this point is that the New Zealand Court should be free to differ from the House of Lords’ conclusions on the matter.T[13]T

Keith J delivered a short concurring judgment, finding that the Court would be departing from principle if it were to follow Jameson.T[14]T Tipping J reached similar conclusions, favouring Lord Lloyd’s dissenting judgment from Jameson.T[15]T His Honour concluded that the approach “seems to me to accord better with principle and with justice”.T[16]T

While it is dangerous to try to elicit definitive trends from a limited number of cases, it is interesting to remember that both Thomas and Keith JJ dissented in Pacific Coilcoaters. Equally, however, Tipping J refused to depart from the House of Lords’ decision in the same case, but undertook a thorough review of Jameson in Morrision’s case.

By virtue of its position in the English judicial system, the House of Lords is not concerned with the effects of its decisions upon New Zealand law.T[17]T As such, it would be inappropriate for New Zealand courts to apply House of Lords decisions without careful analysis of the merits of each individual case, coupled with an analysis of the extent to which the cases reflect or are influenced by circumstances peculiar to England. Thomas J’s dissent in Pacific Coilcoaters and the judgments in Morrision and Van Dorsten v KPMG represent a shift towards analysing the merits of House of Lords cases, and such decisions being genuinely treated as persuasive precedent only. This provides greater options for the Court in developing New Zealand’s common law, and coincides with a move away from considering Britain to be “home”.T[18]T The fact that New Zealand judges felt constrained by decisions of courts from a different judicial hierarchy was not conducive to the judiciary focusing on New Zealand conditions and particular needs arising as a result. The revised approach of New Zealand judges to House of Lords’ judgments is related to the need for development of a distinctive New Zealand jurisprudence.

III. PRIVY COUNCIL JUDGMENTS IN NEW ZEALAND

Undoubtedly the greatest formal check on the New Zealand Court of Appeal’s ability to develop a distinctive New Zealand jurisprudence is the Privy Council. As an institution, it has the potential to veto any initiatives taken by the New Zealand appeal court. However, despite the formal power of the body, the reality is that costs preclude all but a handful of litigants from appealing to the Judicial Committee.T[19]T This section will examine the extent to which the Privy Council has impeded or permitted distinctive New Zealand approaches, with reference to three cases decided in the past decade.

1. Attorney-General for Hong Kong v Reid

The issue in Attorney-General for Hong Kong v ReidT[20]T was whether the plaintiff had a caveatable interest in property purchased by Reid using money from bribes obtained during the course of his employment by the Hong Kong Government. The Court of Appeal held, as did the High Court, that it should follow the English Court of Appeal decision Lister & Co v Stubbs.T[21]T This meant that the relationship was one of creditor/debtor rather than constructive trustee/ beneficiary, and caveat extensions were refused.

Richardson J, delivering the judgment of the Court,T[22]T held that Lister & Co v Stubbs remained part of English law, “although subject to much academic criticism”.T[23]T His Honour then addressed the issue of whether the case should be applied in New Zealand:

It was not suggested by Mr Kos [for the appellant] that there were any local conditions calling for a different approach in New Zealand from that taken in England: whatever is decided in this case must be regarded as having general application throughout all jurisdictions based on the common law which are subject to final appeal to the House of Lords or the Judicial Committee of the Privy Council.T[24]T

The Court of Appeal appeared to be unduly inhibited by the spectre of the Privy Council and dutifully followed the English decision. Richardson J stated:

[O]ur duty as an intermediate appellate Court has been expressed very clearly by Lord Scarman in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank.T[25]T He explained that the Judicial Committee had reversed this Court’s decision in O’Connor v HartT[26]T as to the contractual capacity of a mentally disabled person “holding that because English law applied, the duty of the New Zealand Court of Appeal was not to depart from what the Board was satisfied was a settled principle of that law”. If Lister & Co v Stubbs is not to be applied in this case, that decision is for the Judicial Committee, not for this Court.T[27]T

The phrase “duty as an intermediate appellate Court” conflicts with dicta proclaiming the Court of Appeal to be the de facto final appellate Court for New Zealand.T[28]T

The Court’s decision appears to be wrong both in substance and in its approach to English Court of Appeal decisions, and the case was successfully appealed to the Privy Council.T[29]T The then Chief Justice of New Zealand, Sir Thomas Eichelbaum, sat on the Board and Lord Templeman delivered the unanimous decision. Lord Templeman made the following observation on the New Zealand Court’s treatment of the English decision:

The reasoning of the Court of Appeal, as Their Lordships understand it, was rather that in the absence of differentiating local circumstances the Court should follow a decision representing contemporary English law, leaving its correctness for consideration by this Board. Without in any way criticising that approach in the circumstances of this case, where the decision in question was of such long standing, Their Lordships wish to add that nevertheless the New Zealand Court of Appeal must be free to review an English Court of Appeal authority on its merits and to depart from it if the authority is considered to be wrong.T[30]T

The New Zealand decision was in fact founded upon the misapprehension that the Privy Council would have applied Lister & Co v Stubbs on appeal, rather than any evaluation of the merits of the English case. Lord Templeman flagged the fact that the Privy Council will consider New Zealand judicial attitudes when deciding on New Zealand appeals:

In any case where the New Zealand Court of Appeal has to decide whether to follow an English authority, its own views on the issue, untrammelled by authority, will always be of great assistance to the Board.T[31]T

The Privy Council was willing to afford the Court of Appeal greater freedom to develop New Zealand’s law. A more realistic approach would have enabled the New Zealand Court to reach the same conclusion as the Privy Council, and the parties would not have had to take an appeal to London.T[32]T

2. Invercargill City Council v Hamlin

Invercargill City Council v HamlinT[33]T concerned a council’s liability in negligence for the acts and omissions of a building inspector in carrying out an inspection of houses under construction. The Court of Appeal held that it should follow the line of New Zealand cases that had emerged over the previous 20 years, despite this approach being at odds with England. The line of cases was originally founded upon the House of Lords case, Anns v Merton London Borough Council.T[34]T The House of Lords had subsequently rejected the Anns two-stage test,T[35]T but the New Zealand courts continued to follow that approach.T[36]T

Cooke P stressed the New Zealand Court’s freedom to develop the area for itself:

While the disharmony [with other jurisdictions] may be regrettable, it is inevitable now that the Commonwealth jurisdictions have gone on their own paths without taking English decisions as the invariable starting point. The ideal of a uniform common law has proved ... unattainable. ... What of course is both desirable and feasible, within the limits of judicial and professional time, is to take account and learn from decisions in other jurisdictions. It behoves us in New Zealand to be assiduous in that respect.T[37]T

Cooke P recognised several decisive points in defending the New Zealand approach. Cooke P noted that the New Zealand approach had not been “developed by processes of faulty reasoning” or “founded upon misconceptions”.T[38]T Furthermore, the outcome was necessitated by “the dictates of the particular New Zealand social and historical context”. Richardson J focused upon this point, observing at the outset:

Legislation must be seen in its social setting and the common law of New Zealand should reflect the kind of society we are and meet the needs of our society.T[39]T

Richardson J was careful to emphasise the distinctive character of New Zealand conditions throughout the judgment, and also doubted the applicability of the English cases:

Decisions of the House of Lords although afforded great respect are not binding on this Court. Ultimately we have to follow the course which in our judgment best meets the needs of this society. Those distinctive social circumstances must be taken to have influenced the New Zealand Courts to require of local authorities a duty of care to home-owners in issuing building permits and inspecting houses under construction for compliance with the bylaws.T[40]T

Lord Lloyd delivered the Board’s unanimous decision.T[41]T The Privy Council indicated that it would allow the local appellate court to determine matters of policy:

[T]he Court of Appeal of New Zealand should not be deflected from developing the common law of New Zealand (nor the Board from affirming their decisions) by the consideration that the House of Lords ... have not regarded an identical development as appropriate in the English setting.T[42]T

The Privy Council also analysed the particular circumstances of the case, noting that “the particular branch of the law of negligence with which the present appeal is concerned is especially unsuited for the imposition of a single monolithic solution”.T[43]T

Lord Lloyd acknowledged the “marked divergence”T[44]T between common law approaches to the area and conceded that “in this branch of law more than one view is possible: there is no single correct answer”.T[45]T The Privy Council took the New Zealand Court’s statement of the preceding case and surrounding circumstances as authoritative on the matter:

Whether circumstances are in fact so very different in England and New Zealand may not matter greatly. What matters is the perception. Both Richardson J and McKay J in their judgment in the Court below stress that to change New Zealand law so as to make it comply with Murphy’s case would have “significant community implications” and would require a “major attitudinal shift”. It would be rash for the Board to ignore those views.T[46]T

The Privy Council’s willingness to allow the New Zealand Court to develop the law according to New Zealand conditions results partly from the unique facts of the case, and the difference in conditions between New Zealand and England. It is uncertain, however, whether the Board would have acknowledged such differentiating circumstances if the New Zealand approach had not stood for a number of years, or been followed in subsequent cases without any problems.

3. Lange v Atkinson

Lange v AtkinsonT[47]T is the leading New Zealand case on the common law defence of qualified privilege regarding defamation of political figures. Former Prime Minister David Lange sued Joe Atkinson and Australian Consolidated Press over allegedly defamatory comments made in a 1995 magazine article. In the High Court, Elias J held that the defence of qualified privilege encompassed “discussion which bears upon the function of electors in a representative democracy by developing and encouraging views upon government”.T[48]T

While noting the importance of legislation,T[49]T Elias J emphasised that the “realities of New Zealand society”,T[50]T and the importance of representative democracy to the “New Zealand social and legal order”,T[51]T also prompted the reassessment. The Court of Appeal upheld this decision.T[52]T The litigation is still proceeding.

The same issue fell for decision in the English case Reynolds v Times Newspapers Ltd.T[53]T The Reynolds and Lange appeals were heard in the House of Lords and Privy Council concurrently. In Reynolds, both the English Court of Appeal and the House of Lords differed from the Privy Council judgment in Lange in significant respects. In the Privy Council judgment in Lange, it was held that a defendant who claims common law qualified privilege for discussion related to the suitability of Members of Parliament for public office need not prove that they took reasonable care in the circumstances, while the House of Lords found that there was such an obligation.T[54]T The Privy Council in Lange stated:T[55]T

[O]ne feature of all the judgments, New Zealand, Australian and English, stands out with conspicuous clarity: the recognition that striking a balance between freedom of expression and protection of reputation calls for a value judgment which depends upon local political and social conditions. In their Lordships’ view ... this feature is determinative of the present appeal.T[56]T

The Privy Council also recognised the limits of its ability to determine the present case by virtue of the changing nature of its position in New Zealand’s legal system. The Privy Council indicated an appreciation of its narrower role and the corresponding importance of New Zealand courts, remarking:

For some years Their Lordships’ Board has recognised the limitations on its role as an appellate tribunal in cases where the decision depends upon considerations of local public policy ... The Courts of New Zealand are much better placed to assess the requirements of the public interest than Their Lordships’ Board.T[57]T

The Privy Council’s deference to the New Zealand’s courts is a striking feature of the case. The Board did not overturn the New Zealand decision, despite its divergence from English law on the matter, which had been stated by a similarly composed House of Lords. The Judicial Committee merely allowed the appeal so that the New Zealand Court could reconsider the case in light of the developments in English defamation law in Reynolds.T[58]T

In the judgment delivered by the New Zealand Court of Appeal following the rehearing of Lange,T[59]T the Court restated its position in the earlier judgment and added some comments about its earlier judgment that were generally explanatory rather than qualifying in nature. The Court referred to the importance of New Zealand’s constitutional structure and statute law, including the statutes referred to by Elias J.T[60]T The Court once again underlined the particular circumstances of the case, noting that “[s]ome of the constitutional and legal differences touched on in the previous judgment reflect our different, newer, smaller, closer, if increasingly diverse, society”.T[61]T

The Court of Appeal further demonstrated the importance of knowing the social backdrop to litigation before it, noting that “while the role of the State has undergone substantial reassessment and alteration over the intervening 20 years, its role ... is still extensive”.T[62]T The Privy Council is heavily reliant on counsel to glean such knowledge that may be pertinent to appeals heard in London.

The June 2000 Court of Appeal judgment in Lange v Atkinson also distinguished between the realities of news reporting in New Zealand and in the United Kingdom. The Court intimated that the Privy Council may have proceeded under the mistaken assumption that the two were closely aligned when noting that “it is possible to say that New Zealand has not encountered the worst excesses and irresponsibilities of the English national daily tabloids”.T[63]T

The Court was more explicit on such fundamental differences later in the judgment when stating:

[T]here are significant differences between the constitutional and political context in New Zealand and in the United Kingdom in which this body of law operates. They reflect societal differences.T[64]T

IV. EVALUATION

The above surveys of House of Lords and Privy Council cases have indicated two themes. First, the modern New Zealand Court of Appeal has generally treated House of Lords judgments as persuasive precedent rather than de facto binding authority. Secondly, the Privy Council has developed a greater willingness to allow the New Zealand Court of Appeal to develop distinctive New Zealand solutions according to local circumstances. Both themes reflect a growing confidence in the New Zealand Court of Appeal, and the move towards a New Zealand legal identity distinct from that of England.

It would be a mistake to conceptualise a distinctive New Zealand jurisprudence as a fixed body of law, pertinent to every New Zealander’s needs and conforming to each New Zealander’s individual expectations of a legal system. A system of law with a distinctive national identity has proved elusive throughout the world. However, I submit that a more flexible legal system, that is able to adapt to genuine changes in societal attitudes and beliefs, is required in light of New Zealand’s growing independence.T[65]T The need for flexibility is reflective of the nature of the change:

A national identity is not a permanent and static possession; rather, the nation has from time to time to be reinvented. Indeed, the idea of the nation is changing all the time.T[66]T

By contrast, the need for uniform development of a Commonwealth common law is of waning importance. The authors of Precedent in English Law note:

The desirability of having the same common law throughout the Commonwealth is not as self-evident as it is sometimes made to appear. Much depends on the branch of law concerned.T[67]T

While acknowledging that “there is much to be said for uniformity” in commercial matters, “the demand for uniformity in other spheres may militate against useful developments”.T[68]T With the increased role of international law in domestic legal affairs,T[69]T international agreements may enhance uniformity where required. These agreements achieve uniformity more effectively than is possible via the common law, since this necessarily develops on an incremental basis, reliant upon having the right case at the right time to drive such harmonisation.T[70]T Uniformity in the common law is now less of an imperative for the New Zealand courts to be cognisant of in adjudication.

In New Zealand, the Court of Appeal may be willing to develop certain areas of law more readily than others. In Jorgensen v News Media (Auckland) Ltd,T[71]T the Court was explicit in indicating that the law of evidence is an area in which the judiciary will take an active role in developing the common law to correspond more closely with the needs of the New Zealand legal system, within the limits of any legislation enacted by Parliament.T[72]T As noted by McCarthy J:

In my respectful view, if the Court of Appeal, the superior Court in this country, after weighty consideration, reaches the viewpoint that in the interests of justice and to meet the particular conditions of the times, it is desirable to create a new exception to these particular rules of evidence, and that is not obstructed in so doing by a compelling or highly persuasive authority to the contrary, it should take that step.T[73]T

In Breuer v Wright,T[74]T Woodhouse P asserted the importance of interpreting New Zealand legislation in the light of local conditions:

[I]f it were thought that the Family Protection Act as a piece of New Zealand legislation might need to be interpreted in a way that reflected local social aspirations or any general consensus that could be detected concerning the local development of this part of the law one would expect it to be found in conclusions reached not in London by their Lordships but by the New Zealand Court of Appeal.T[75]T

As New Zealand society gradually becomes more distinct from that of England, there will be growing areas of law in which the New Zealand courts may assert dominion on the basis that New Zealand conditions are different enough to justify divergence. Aside from distinctive features of New Zealand law, such as the Treaty of Waitangi and the New Zealand Bill of Rights, it may be appropriate for New Zealand courts to develop new approaches to administrative law and judicial review in light of the public sector reforms of the 1980’s. Familiarity with New Zealand social conditions is essential if judges are to make relevant, fair and just decisions. New Zealand judges are best placed to view the law in its social context and make decisions accordingly. Joseph noted that Bill of Rights’ cases require judges to make a “utilitarian calculation”T[76]T to balance competing rights:

This question [of balancing rights under s 5 of the Act] will enjoin courts to take account of the sociology of New Zealand. ... [F]or these socio-legal functions, judicial expertise is no substitute for an intimate knowledge of New Zealand’s economic and social structures and a sense of position in the world. This knowledge their Lordships manifestly lack.T[77]T

Joseph, in stressing the importance of New Zealand judges determining Bill of Rights issues, referred to “that indefinable part of a judge’s qualification which is his intimate knowledge of the society in which he presides and upon those whose members and institutions he sits in judgment”.T[78]T

In the short term, there are practical advantages to be gained from the New Zealand Court specifying that it has chosen to develop a distinctive line of cases in response to differences in New Zealand conditions, such that the English approach is no longer applicable in New Zealand. In simple terms, it makes it less likely for such a decision to be successfully appealed in the Privy Council, based on the principles of Lange v Atkinson.T[79]T Ultimately, however, this merely avoids the issue and perpetuates a mindset that implies inferiority of New Zealand law. The New Zealand Court of Appeal should be free to determine that, if two equally valid paths emerge for developing the common law, it need not be presumed that New Zealand will follow the same path as England. New Zealand’s Court should not be fettered in this way in future cases, especially if the Privy Council appeal is abandoned and the Court of Appeal formally becomes New Zealand’s final appellate court. The Court would become free to examine all authority on merit, including its own decisions. This would naturally take into account the extent to which a decision had been followed and relied upon, as various judges have intimated already occurs.T[80]T Such a move was perhaps foreshadowed by Cooke P in Dahya v Dahya, in noting:

In my respectful view it is important, especially for a small country such as New Zealand, that the national appellate Court should hold itself free to take account of and benefit from decisions elsewhere in the English-speaking world ... [W]e should not foreclose our options.T[81]T

Whilst remembering that the law lords have amongst their number some of the world’s greatest living legal minds, there is no monopoly on good legal reasoning.T[82]T New Zealand judges should be free to draw upon the wisdom from other common law countries. Canadian and Australian judges may advance other equally compelling reasons for following alternative paths in developing the common law which, while not based upon distinctive New Zealand conditions, may solve the legal issues in a manner more consonant with New Zealanders’ perspectives on the world. The approach advocated in this article would not encourage departure from English precedent for its own sake, rather it would grant the Court of Appeal a freer hand in seeking to ensure that the common law of New Zealand has a genuine relevance to New Zealanders and the New Zealand way of life.

Choices made by New Zealand judges may be influenced by New Zealanders’ innate ideas about fairness and justice and their application in practical situations. These relate to the unstated premises underlying judgments rather than any specific New Zealand conditions that are distinctive in a tangible, concrete sense. Since New Zealanders are still differentiating themselves from England, the process has been necessarily slow. This is due in part to the fact that many of those active in New Zealand’s legal profession in earlier years were born or educated in England.T[83]T

New Zealand’s Court of Appeal must be free to make its own decisions when developing the common law for New Zealand. This should be in the interests of the New Zealand public, but need not be reliant upon obvious differences from England to justify a divergence from English law. It is time for the nation’s supreme appellate court to reject the concept of a heavy presumption in favour of following English law. Such a departure seems more likely in light of the burgeoning growth in New Zealand’s identity as a separate Pacific nation and resulting attitudinal changes of the public, the legal profession and judiciary, ultimately translating through to decisions of the courts.


T[*]T Barrister and Solicitor, High Court of New Zealand; Solicitor, Russell McVeagh, Auckland. I thank the Right Honourable Justice Thomas for his invaluable feedback on an earlier draft of this article.

T[1]T For the purpose of this article, the cases are necessarily selective, and do not, for example, cover areas such as the unique interaction of the Privy Council and the Court of Appeal in respect of M_ori, Treaty and aboriginal rights.

T[2]T [1972] NZLR 741 (CA). According to Cooke J in Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461, 473, “the case ... may be regarded as perhaps finally establishing that this Court is not bound by the House of Lords”.

T[3]T At 757. This approach was followed in eg North Island Wholesale Groceries Ltd v Hewin [1982] NZCA 87; [1982] 2 NZLR 176 (CA).

T[4]T [1998] 2 NZLR 19 (CA).

T[5]T [1986] 2 All ER 104 (HL).

T[6]T At 32.

T[7]T At 33.

T[8]T Unreported, Court of Appeal, CA 146/98, 17 December 1999, Thomas, Keith and Tipping JJ.

T[9]T [1998] UKHL 51; [1999] 1 All ER 193 (HL).

T[10]T The Court gave counsel the opportunity to file written submissions relating to the decision and its bearing on the case (at 2-3).

T[11]T At 52.

T[12]T At 50.

T[13]T See Australian Consolidated Press v Uren [1967] 3 All ER 523 (PC).

T[14]T At 56.

T[15]T For Tipping J’s analysis of the case, see 57-64.

T[16]T At 62.

T[17]T Furthermore, the House of Lords is not bound by Privy Council decisions: Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1985] UKPC 22; [1986] AC 80 (PC).

T[18]T Sinclair, K A Destiny Apart: New Zealand’s Search for National Identity (1986) 94-108.

T[19]T See Eichelbaum, Rt Hon Sir T Report of the New Zealand Judiciary (1998) 92, and Collins, “The Case against Retaining the Privy Council”, Council Brief, July 2000, 6.

T[20]T [1992] 2 NZLR 385 (CA).

T[21]T (1890) 45 ChD 1 (CA).

T[22]T A three-judge division heard the appeal, comprising Richardson, Hardie Boys and Gault JJ.

T[23]T At 392.

T[24]T Ibid.

T[25]T Supra note 17, at 108.

T[26]T [1985] 1 NZLR 159 (PC).

T[27]T At 392.

T[28]T See Collector of Customs v Lawrence Publishing [1986] 1 NZLR 404, 414 (CA), and R v Hines [1997] NZCA 123; [1997] 3 NZLR 529, 587 (CA).

T[29]T [1994] 1 NZLR 1 (PC).

T[30]T At 9.

T[31]T At 10.

T[32]T See also criticism of the case in Thomas, Hon E W A Return to Principle in Judicial Reasoning and an Acclamation of Judicial Autonomy (1993) 70-71.

T[33]T [1994] 3 NZLR 513 (CA).

T[34]T [1977] UKHL 4; [1978] AC 728 (HL).

T[35]T See Caparo Industries plc v Dickman [1990] UKHL 2; [1990] 2 AC 605; [1990] 1 All ER 568 (HL), and Murphy v Brentwood District Council [1991] UKHL 2; [1991] AC 398; [1990] 2 All ER 908 (HL).

T[36]T South Pacific Manufacturing Co Ltd v New Zealand Security Consultants Ltd [1992] 2 NZLR 282 (CA).

T[37]T At 523.

T[38]T Ibid.

T[39]T At 524.

T[40]T At 527-528.

T[41]T A New Zealand judge, Sir Michael Hardie Boys, was a member of the Board to hear the case.

T[42]T Invercargill City Council v Hamlin [1996] 1 NZLR 513, 520 (PC).

T[43]T At 520.

T[44]T Ibid.

T[45]T At 521.

T[46]T Ibid.

T[47]T [1998] 3 NZLR 424 (CA).

T[48]T Lange v Atkinson [1997] 2 NZLR 22, 46 (HC). The plaintiff attempted to strike out the defendants’ statement of defence, which had pleaded a common law defence of “political comment” analogous to that recognised by the High Court of Australia in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 and Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96. Elias J held that the statement of defence should be changed to qualified privilege, which was wide enough to include such matters.

T[49]T Including the Defamation Act 1992, New Zealand Bill of Rights Act 1991, Official Information Act 1982, and Electoral Act 1993.

T[50]T At 46.

T[51]T Ibid.

T[52]T Supra note 47.

T[53]T [1998] EWCA Civ 1172; [1998] 3 All ER 961 (CA).

T[54]T Ibid; [1999] UKHL 45; [1999] 3 WLR 1010 (HL).

T[55]T Lange v Atkinson [2000] 1 NZLR 257 (PC).

T[56]T At 261-262.

T[57]T At 262.

T[58]T At 263.

T[59]T Lange v Atkinson, unreported, Court of Appeal, CA 52/97, 21 June 2000, Richardson P, Henry, Keith, Blanchard and Tipping JJ.

T[60]T Ibid, 3-16, and supra note 49.

T[61]T At 16.

T[62]T At 17.

T[63]T Ibid.

T[64]T At 20.

T[65]T For discussion of the growth of a New Zealand national legal identity, see Gault, Hon T Harkness Henry Lecture: Development of a New Zealand Jurisprudence (1992); Baldwin, “New Zealand’s National Legal Identity” [1989] CanterLawRw 10; (1989) 4 Canterbury Law Review 173; Cooke, “The New Zealand National Legal Identity” (1987) 3 Canterbury Law Review 171; Cooke, “Divergences – England, Australia and New Zealand” [1983] NZLJ 297; Eichelbaum, “Brooding Inhibition - Or Guiding Hand? Reflections on the Privy Council Appeal” in Joseph, P (ed) Essays on the Constitution (1995) 112.

T[66]T Sinclair, supra note 18, at 257.

T[67]T Cross, R and Harris, J Precedent in English Law (4th ed, 1991) 24.

T[68]T Ibid.

T[69]T Keith, “Harkness Henry Lecture: The Impact of International Law on New Zealand Law” [1998] WkoLawRw 1; (1998) 6 Waikato Law Review 1.

T[70]T Spiller, “Litigation” in Spiller, P (ed) Dispute Resolution in New Zealand (1999) 131, 135-136: “[A]djudication is essentially geared to resolving the particular factual dispute or predicament in which the parties are involved. ... The court cannot be expected to adjudicate upon abstract issues which are not the subject of dispute between parties”.

T[71]T [1969] NZLR 961 (CA).

T[72]T At 979 (per North P) and 990-991 (per McCarthy J).

T[73]T At 993.

T[74]T [1982] 2 NZLR 77, 83 (CA).

T[75]T See also Collector of Customs v Lawrence Publishing [1986] 1 NZLR 404, 411, 414 (CA).

T[76]T Smellie, “The Draft Bill of Rights: Meaningful Safeguards or mere Window-Dressing?” [1985] NZLJ 276, 278, cited in Joseph, “Towards Abolition of Privy Council Appeals” (1985) 2 Canterbury Law Review 272, 282.

T[77]T Ibid, 282.

T[78]T Ibid, 296. See also Cameron, “Appeals to the Privy Council – New Zealand” [1970] OtaLawRw 7; (1970) 2 Otago Law Review 172, 180: in response to the contention that the Privy Council is independent of “local pressures”, Cameron noted that “[i]f ... it merely means that [Court of Appeal judges] are influenced by a New Zealand ethos and sense of values, then so they should be”.

T[79]T Supra note 55.

T[80]T See eg S & M Property Holdings Ltd v Waterloo Investments [1999] NZLR 189, 210 (CA), and R v Hines [1997] NZCA 123; [1997] 3 NZLR 529, 553.

T[81]T [1991] 2 NZLR 150, 156 (CA).

T[82]T Joseph, supra note 76, at 287.

T[83]T See generally Spiller, P A New Zealand Legal History (1995), and Cooke, R (ed) Portrait of a Profession: The Centennial Book of the New Zealand Law Society (1969).


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/journals/WkoLawRw/2000/2.html