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Britton, Cheryl; Gibbons, Thomas; Glover, Kevin; Tappenden, Sue --- " 'New Zealand Court of Appeal 1958 - 1996: A History' (Brookers, Wellington, 2002)" [2003] WkoLawRw 7; (2003) 11 Waikato Law Review 168

BOOK REVIEWS

THE DISPUTES TRIBUNALS OF NEW ZEALAND (second edition), by Peter Spiller, Wellington, Brookers, 2003, 160pp. New Zealand price $45 plus gst.

New Zealand’s Disputes Tribunals (previously known as Small Claims Tribunals) have played a valuable role in the civil justice system. The Tribunals provide the opportunity for readily accessible, inexpensive, informal, non-legal, and fair resolution of small claims. Professor Spiller’s first edition, published in 1997, was described in the Foreword to that edition by the Hon Douglas Graham, Minister of Courts, as the first “general reference text which thoroughly and systematically explains the working of the Tribunals” (p xi). The second edition was necessitated by the significant developments that have occurred in the Disputes Tribunals as a result of changes in statute law, continuing case law on the Disputes Tribunals, new institutional practices, and information gathering activities associated with the operation of the Tribunals. Professor Spiller has been able to produce a concise book that incorporates these developments, in particular, the extended jurisdiction of the Tribunal and the creation of the office of Principal Disputes Referee, changes affecting proceedings, and other aspects of the Disputes Tribunals.

The instant appeal of this book is evident in its readability. The book provides a clear understanding of the key aspects of the framework and operation of the Tribunals in an easy to read fashion. It has a logical structure beginning with the history and nature of the Tribunals in Chapter 1. This provides a deeper understanding as to the objectives underpinning the establishment of the Tribunals.

The important issue of jurisdiction is discussed in Chapter 3. Professor Spiller outlines the types of claims within the jurisdiction of the Tribunals and dispels the myth as to the requirement of a “cause of action” as opposed to a “dispute”(p 25). In this chapter Professor Spiller demonstrates his ability to explain technical legal concepts such as contract, quasi-contract and tort, using simple explanations suitable for lay people, with examples that provide further clarification of the concepts. The result of this approach in the book is that, where technical legal concepts arise, Professor Spiller has avoided where possible any unnecessary technicality. Throughout the book Professor Spiller demonstrates this skill, and again this is illustrated further in Chapter 7 where he discusses the Orders in the Tribunals and the types of remedies available. It is important for those seeking to apply to have a claim heard in the Tribunal to understand the types of dispute able to be heard by the Tribunal and where there are limitations to hearing certain disputes. Professor Spiller has clearly outlined the causes of action that are excluded from the Tribunal’s jurisdiction (p 35) and extensively listed the considerable number of other statutory restrictions on jurisdiction (pp 37-39).

Whilst the book has a particular focus on Disputes Tribunals of New Zealand, Professor Spiller throughout the book demonstrates his extensive knowledge of processes of both New Zealand and overseas jurisdictions with similar small claims tribunals. Of particular interest is the outline of future developments in relation to the jurisdiction of the Tribunal namely in reference to areas such as section 9 of the Fair Trading Act 1986 (p 40), given that this is a cause of action that is encroaching significantly in commercial disputes.

In Chapter 6, Professor Spiller discusses the “Functions of the Tribunals” and the delicate role of the Referee in the determination of disputes. Determination of the dispute by a Referee shall be “according to the substantial merits and justice of the case” (p 96) which is crucial to a fair and appropriate decision. Negotiation and adjudication are key elements underlying the decision-making process of the Tribunal. There are however inherent tensions between negotiation and adjudication that require careful balancing by a Referee. Lay people must be given the opportunity to be active participants in the resolution of their disputes. This includes being able to present their story, which is often coupled with emotion. The assistance and guidance of a Referee is key to the process, however the Referee is the ultimate adjudicator and as such may have to make a binding decision in relation to the dispute so that it may be laid to rest.

Chapter 8 deals with a common misapprehension as to the grounds for appeal. In accordance with section 50(1) Disputes Tribunals Act 1988, appeal is on the grounds that the proceedings were conducted by the Referee in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings. There are no grounds for appeal on the basis of merit or an error of law.

In writing this book Professor Spiller has been able to draw on his background as a leading academic with extensive publications on a number of legal issues, and 14 years of involvement with the Tribunal. In addition, Professor Spiller’s own experience as a Referee of the Tribunal along with the shared experience of his colleagues provides hands-on knowledge that ensures the practical flavour of the book. This is evident in Chapter 9, the concluding chapter, where Professor Spiller has provided five case studies to demonstrate the Tribunals at work. This material gives an insight into the workings of the Tribunal that is hard to come by due to the private nature of the hearings. Professor Spiller concludes each case study with valuable comments as to features of the particular disputes and the complexity of the role of the Referee. These case studies illustrate the role that law, merits, and justice play in the decision-making process so that a Referee may reach a fair and appropriate decision.

Overall, this is a concise, inexpensive book that permits a wide-ranging audience to gain valuable insights into the operation of the Disputes Tribunals. Prohibition on appearances by legal counsel may limit the book’s appeal for practitioners, and lay people with a “one off” claim may not see a need for this book. The book is, however, an authoritative practical guide and reference work for all those “who have some involvement in the Tribunals, be they disputants, legal or consumer affairs advisers, insurance company representatives, court staff, departmental officials or Referees” (p xi). As it is not part of the court system, the Tribunal may present many uncertainties for lawyers and lay people alike. This book canvasses many key elements in relation to Tribunal procedure and outcomes, and so may assist in alleviating some of the uncertainties or fears associated with the process. Successful operation of the Disputes Tribunals as a forum for lay people to have their small claims heard is dependent upon knowledge of the processes. This reference book is an invaluable resource for provision of this information and ultimately improves access to justice.

Cheryl Britton[*]

CONSTITUTIONAL CONVERSATIONS: GEOFFREY PALMER TALKS TO KIM HILL ON NATIONAL RADIO 1994-2001, by Sir Geoffrey Palmer, Wellington, Victoria University Press, 2002, 504 pp. New Zealand price $39.95 plus gst.

The recent publication of Constitutional Conversations provides an excellent opportunity to reflect on both the extent to which constitutional issues pervade public affairs and the extent to which much of the public lacks an understanding of the constitution. The sheer range of topics covered in this publication illustrates the first point: the book includes the resignation of a judge, Treaty negotiations, a constitutional convention, visits by diplomats and various social policy initiatives, all looked at through a constitutional lens. As to the second point, Palmer notes in the Preface (p 9):

The broadcasts had an educational purpose and were designed to fill a gap. That gap was the absence in New Zealand of a good understanding of civics. By that, in this context, I mean broadly understanding how the system of government works.

This is not the first time that Palmer has decried the New Zealand public’s lack of understanding about constitutional issues: in New Zealand’s Constitution in Crisis (1992, p. 2), Palmer commented that “[m]embers of the public do not understand New Zealand’s constitutional arrangements, generally speaking. There is a crying need for good courses in civics at school”.

What the talks aim to do, then, is to bring the constitution to the public through the medium of radio (and print, via the book). In keeping with this aim, the broadcasts are centred on practical, “hands-on” constitutional issues rather than matters of deep theory. This does not mean that theory is ignored absolutely. Indeed, ideas like judicial independence, the separation of powers, and the role and purpose of civil society creep in and out of the broadcasts. And this is entirely as things should be. It is impossible to talk seriously about something as ethereal as a constitution without grounding the discussion in some kind of theoretical basis.

One talk which cleverly integrates the theoretical and the practical – and in doing so draws attention to the pervasiveness of constitutional issues – is “Bagehot on fame: 9 September 1997” (pp 221-226). Kim Hill begins by talking about the death of Princess Diana and raises the question of whether this will expedite the end of the monarchy. Palmer then uses these comments to highlight such matters as the distinction between the public and private realms of life, the constitutional role of the monarchy, and the ideas of Walter Bagehot in The English Constitution (1867).

As Palmer puts it (p. 222):

The English Constitution really says there are two parts to the Constitution – the dignified part and the working part. The monarchy is the dignified part of the Constitution .... [while as to the working part, Bagehot] saw Cabinet as being the efficient secret of the English Constitution.

This extract does not really do justice to Bagehot (or Palmer). To quote Bagehot more fully, he does indeed say that there are two parts to the English constitution (p 7):

[F]irst, those which excite and preserve the reverence of the population, - the dignified parts ... and next, the efficient parts, - those by which it, in fact, works and rules .... The dignified parts of government are those which bring it force, - which attact its motive power. ... the efficient parts only employ that power.

Bagehot then goes on to express his admiration for such an arrangement (pp 10-11):

The brief description of the characteristic merit of the English Constitution is, that its dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part, at least when in great and critical action, is decidedly simple and rather modern .... The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion of the executive and legislative powers [through Cabinet].

These extracts expand on the broadcasts somewhat. This is not to take anything away from Palmer who, after all, is seeking to simplify matters for the general public, and hence must try to avoid mid-Victorian style and syntax. Indeed, Palmer gets across the point about there being dignified and efficient aspects to the constitution rather well. He is fulfilling the points raised above: combating the public’s lack of understanding about the constitution while highlighting the pervasiveness of constitutional issues.

Palmer’s thoughts on this matter are further emphasized in “The Great Hui: 11 April 2000” (p 386):

It should not be a mystery as to how New Zealand’s constitutional arrangements function now. But if you go into the schools, I bet not very many people know. When I teach students at the university in the first and second years they do not know. They are highly educated people. How can you own your own constitution if you do not know what it is and how it works?

Yet many New Zealanders do have at least a vague sense of things like political parties, the Prime Minister, Cabinet and MMP. They understand politics: political matters are in the news all the time. What the public perhaps does not always understand are the constitutional aspects of political issues. This is, of course, something which Palmer’s broadcasts and book are seeking to combat: the broadcasts show that political news can be seen through a constitutional lens, and that such a viewpoint will often enhance our understanding of certain issues.

The extracts from the talk on Bagehot were not chosen at random. Returning to Bagehot’s point about the efficient and dignified aspects of the constitution, it could be argued that, in New Zealand, we tend to focus too much on the efficient part. News stories are often about, and hence people often discuss, political power-plays, changes in Cabinet, the Prime Minister’s leadership, and so on, while the dignified part of the constitution is almost entirely ignored, both in the media and in civil life.

Palmer’s argument is a good one. People do need to know what the New Zealand constitution is and how it works. But it is reasonable to contend that a better appreciation of what the constitution is would come from a greater emphasis on its dignified part. And given the present state of the New Zealand constitution, we do not need to see the dignified part as being made up solely of the monarchy. A more expansive understanding is possible.

To take an example, the United States abandoned monarchical government at the time of the War of Revolution. In his recent book Taking the Constitution Away from the Courts (1999, chapter 1), however, Mark Tushnet divides the US Constitution – in the sense of the written document – into “thick” and “thin” parts. The “thin” constitution comprises the Preamble and the Declaration of Independence. It is these that matter most to the public. The “thick” constitution includes all the details of how the nation is to be governed, including rules on the minimum age of the President, how many Senators there are to be, and processes for judicial appointments. In a sense, the “thin” constitution is what is dignified, while the “thick” constitution is what is efficient. The American public “own” their constitution because they know in essence what it is, even if they do not always understand the details of how it works.

What might the “thin” part/dignified part of the New Zealand constitution look like? Such a question is so fraught with difficulty that it seems dangerous to venture any kind of answer. Unlike the United States, New Zealand has no Declaration of Independence to revere. We do have a monarchy to venerate, but it plays less of a constitutional role than in England today, let alone the England of Victorian times.

To some, the Treaty of Waitangi probably comes closest. It is analogous to Tushnet’s “thin” constitution in being small in size, well known publicly, and somewhat vague in execution. It can also be seen as “somewhat imposing, very old and rather venerable”, as Bagehot described the dignified part of the constitution. But New Zealand’s constitutional arrangements are much more complex than the Treaty allows, and opinion about its relevance and its legal status remains divided. Knowledge and understanding of the Treaty by itself is by no means enough for New Zealanders to “own” their constitution.

But it is a start. Ascertaining the dignified part of New Zealand’s constitution may be difficult, but this does not mean that this is impossible. Others may have their own opinions and ideas, and these should be encouraged. Civics in schools is not enough. In order to have a better grasp of their government, and in order to “own” their constitution, New Zealanders need to develop a sense of constitutional faith, an understanding of constitutional issues, that goes beyond the rough and tumble of day-to-day political affairs.

Again, this is not to take anything away from Palmer. Helping to make the public aware of the many and varied ways in which the constitution affects our lives is an invaluable task, and, by taking us into such a wide range of topics in this book, Palmer achieves this very well.

Thomas Gibbons[*]

NEW ZEALAND COURT OF APPEAL 1958-1996: A HISTORY, by Peter Spiller, Wellington, Brookers, 2002, 475 pp. New Zealand price $84 plus gst.

It is perhaps surprising that no books prior to Professor Spiller’s excellent history of the Court of Appeal have been dedicated to analysing the highest New Zealand-based court. The Court of Appeal is discussed in various introductory legal texts, but there has been very little academic comment on the performance of the Court over time, the influence of personalities and backgrounds on approaches to judging, and their ultimate implications for the outcome of cases. This book thankfully fills that gap in New Zealand legal scholarship by providing a thoroughly researched, comprehensive history of the modern Court of Appeal.

The New Zealand Court of Appeal was established as a permanent Court, separate from the Supreme Court of New Zealand, in 1957, and heard its first appeals in 1958. Prior to that time, judges of the Supreme Court were essentially seconded to the Court of Appeal from time to time. The book covers the first 38 years of the Court as a separate institution, ending with Cooke P’s retirement from the position of President of the Court in 1996. This broad time period covered in the book allows for assessment of trends, and permits the author to comment on the consistency of approach (or otherwise) taken by individual judges at various times, as well as more general comments on the Court as an institution and its development.

The book is carefully structured, with each chapter making generous use of sub-headings where appropriate to assist the casual reader. The sub-headings are logical, however, and do not disrupt the narrative flow. The book is divided broadly into two parts. The first focuses on biographical details of the permanent judges of the Court between 1958 and 1996. These chapters are structured so that the life and career, judicial personality and approach to judging of each judge are examined, followed by a conclusion as to each judge’s general approach and assessment of the strengths and qualities that they contributed to the Court during their tenure on the bench. Each chapter covers a selection of judges who were appointed to the Court of Appeal bench at roughly similar times, in roughly chronological order. The case study sections at the end of the biographical chapters should provide useful resources for teachers of legal method seeking to illustrate the importance of judicial personalities on the outcome of cases.

The use of consistent headings allows for contrasts to be drawn between various judges, such contrasts being drawn out at the end of each chapter with case analyses involving the relevant judges. The biographies are interesting and well-written, and the use of consistent headings allows comparisons to be drawn between the styles of different judges. The biographies begin with the backgrounds of the judges prior to their joining the legal profession, and also their legal careers prior to being appointed to the bench. The author then uses that background material to contextualise the judges’ approaches to judging when on the bench, providing interesting analyses. At times the narrative is slowed by the author’s careful and deliberate introductions and conclusions to points that he makes, although this didacticism leaves the reader in no doubt as to the author’s conclusions, nor his reasons for those opinions. The language used is descriptive but not emotive. Professor Spiller’s conclusions are measured, and always well-supported with clearly developed logic.

The book examines the judges’ experiences and backgrounds as a crucial tool for considering the contexts of their decisions. As such the analysis moves beyond simplistically labelling judges as liberal/activist or conservative/ formalist, but rather considers the practical decisions which they made when confronted with choices in interpreting or applying the law while on the bench. Such analyses are particularly interesting when used to contrast different decisions taken by different judges in important cases, as illustrated in the case study sections. The book’s observations and conclusions therefore reflect the American Realist view of the nature of judging, and of the law generally, as an essentially human endeavour.

The case analyses contained in the book are first-rate, and both senior law students and junior practitioners would hone their professional skills by taking time to review Professor Spiller’s close reading of various key judgments. The case analyses show the importance of the critical assessment of precedents, and the importance of understanding the context of a case and its decision to being able truly to understand the case and rely upon it as an advocate.

The second part of the book builds on the descriptions of the various personalities and discerns trends and themes in the Court’s operation across the nearly forty years covered. Each chapter is prefaced with a caveat that each judge is different (as shown by the first part of the book) and it can therefore be difficult to make generalisations. However, the time period covered allows assessment of developments and general changes in approach and attitude, all of which are supported with extensive references to primary materials in footnotes.

In the second part Professor Spiller focuses not only on the personalities of the judges, building upon the ideas from the first part of the book, but also the personalities of the litigants and (to a lesser extent) counsel. The case summaries are written as analytical narratives, presenting the facts and then pausing to surmise the meanings of those facts. The case studies often contain extraneous facts of interest that have been omitted from the judgment of the Court, reflecting meticulous research on the author’s part. The case summaries contain down-to-earth descriptions of the factual background to the litigation, and seem less formal because of the author’s practice of referring to real locations and using the first names of the relevant parties. Despite the perceived informality, however, the analysis remains rigorous and Professor Spiller provides insightful comments on the cases. The narrative style also makes the case summaries more lively and interesting to read, rather than simply repeating the facts as set out in the judgments. The focus on the stories of the litigants, and the real nature of the stories which led to the major Court of Appeal cases discussed, is refreshing. This focus reflects Professor Spiller’s deliberate attempt to humanise the Court of Appeal and the people involved in the Court’s work, again reflecting Realist concerns.

The book is exceptionally well-researched, making good use of publicly available material such as cases and extra-judicial writing, but importantly Professor Spiller also refers to interviews which he conducted with the judges and other relevant parties. The author also helpfully outlines his research sources and method in the book’s preface.

There are points which might have been worthy of more detailed examination in the book, such as greater consideration of the impact of the Court’s workload on its performance, and the Court’s responses to workload in developing the Civil and Criminal Appeal Divisions. Practitioners might also have been interested in a discussion of the increasing importance of written advocacy in the modern Court, and reflections of judges in this regard. These minor omissions, however, may as much reflect editorial decisions on the scope of the work, given the length of the finished book as it is.

Professor Spiller’s book is one of precious few works on specialist aspects of New Zealand’s legal history, and is a welcome addition to the growing body of scholarship in that area. It is difficult to find fault with such a well-researched and clearly expressed book on one of the most important institutions in New Zealand’s legal system.

Kevin Glover[∗]

EQUITY AND TRUSTS IN NEW ZEALAND, by Andrew S Butler (General Editor), Wellington, Brookers, 1247 pages. New Zealand price $136 plus gst.

This is the first book on equity ever written specifically for New Zealand students and practitioners. Equity and the law relating to trusts in New Zealand are the central themes, although the scope of the book is wide-ranging. This book recognises the independent development of equity and the law of trusts in New Zealand while acknowledging the influence of jurists worldwide. It is a comprehensive text written in four parts over forty chapters, the first two chapters of which are devoted to an historical introduction and basic concepts. Dr Butler, as the general editor of the book, has written or contributed to 17 of the chapters. The other contributors are academics and practitioners from throughout New Zealand, in almost equal proportions. The wide range of experience represented by the list of authors is one of the strengths of the book.

The book is divided into sections, the first of which, part A, deals with trusts. The trust is a device borne out of equity and the principles of equity are well illustrated through the medium of the trust. Part A deals with what would be expected to be found in a traditional trusts course, forming part of an undergraduate degree programme, where the rules and principles on the creation and administration of express trusts are generally accepted as fixed. The text refers specifically to New Zealand trusts and it is on these principles that most of our family and commercial arrangements are firmly based. However, the proper understanding and teaching of trusts should not be limited to these basic concepts and this book addresses the wider and less certain issues by applying the principles to particular circumstances and contexts in part D. In part D we find a detailed account of equitable principles applied to commercial dealings and the case against such intervention. The material is predominantly taken from New Zealand cases but with appropriate examples and texts from other common law jurisdictions.

Part B deals with Modern Equity and in part C Equitable Remedies and Defences are thoroughly examined. The four-part structure of the book is, in my opinion, at the same time a strength and a possible drawback for student use. The strength of the structure is in the focus that has been achieved by adopting this fresh approach, particularly in the section entitled Equity in Context. Throughout the book, topics are grouped together in such a way as to step away from a more traditional “linear” approach where, for example, remedies are usually relegated to the end of the book almost as an afterthought or necessary evil. The lack of continuity that I feared would be evident with so many contributors is simply not present, and there is a strong sense of energy which is pervasive throughout.

My only reservation is in relation to students who have been accustomed to a more traditional textbook that takes them from beginning to end of a subject as if on a conveyor belt. Equity and Trusts in New Zealand is a text that demands an enquiring approach to ensure that best use is made of the extent of knowledge it contains. Students reading one chapter may well have to refer to other parts of the book to gain the best possible understanding of a particular topic. This is no bad thing and it is right to dispel the myth that law divides itself into neat categories to be learnt. I believe that, with guidance, students will find this book invaluable in learning about trusts and equity. Moreover, the book may prompt a new sense of enquiry into where equity fits in modern society and its relationships with other areas of law.

Sue Tappenden[*]

[*] Lecturer in Law, University of Waikato.

[*] Barrister and solicitor, Auckland.

[∗] Barrister and solicitor, currently at University of Cambridge.

[*] Lecturer in Law, University of Waikato.