James Farmer


"Criticism of Supreme Court needs to be put in context" as published in the New Zealand Herald 11 May 2012

Wednesday, May 23, 2012

There is a very long tradition of analysis and criticism of Court Judgments by lawyers, particularly academic lawyers.  In all the common law countries, including the United Kingdom, the United States, Australia and New Zealand, there are many legal journals in which articles are written either praising, but more often probably, lamenting some recent court Judgment. 

Both, formerly as an academic lawyer in England and New Zealand and since as a barrister in New Zealand and Australia, I have contributed to legal debate by writing many articles and delivering many conference papers which analyse judicial decisions and trends in decision-making.

This is very healthy as it throws light on trends in judicial reasoning and provokes debate as to whether it is heading in the right direction or not.  The Judgments of the highest courts – in England the House of Lords (now Supreme Court), the High Court of Australia, the US Supreme Court and, in New Zealand now, the Supreme Court attract the greatest attention. 

At that level, the Judgments create precedents binding on all courts lower in the hierarchy. Such courts have a greater authority to re-examine the law in the light of the social values of the day.  

It is inevitable that there will be differing opinions on the correctness of the outcome or reasoning of particular cases.  Again, that is very healthy if it leads to constructive debate, debate which hopefully will help to determine whether the court concerned has taken a wrong turn or whether it is on the right track.  The same is true of debate in every walk of life, including government as the most obvious example.

It is important however not to treat criticisms of particular Judgments given by a particular court as a complete condemnation of the court as a whole and of its ability to give Judgments that for the most part are unexceptional and exactly what can rightly be expected.

It is for that reason that I have considerable disquiet about the prominent piece in the NZ Herald for Saturday 5 May in which, under the heading “Justice in the firing line” it is said that the Supreme Court is facing “unprecedented public criticism” which is having an adverse impact on our case law and on our international reputation.

The Herald article does detail a number of specific Judgments of that court which have attracted criticism – including two which I have written about in less than glowing terms.  But what is lacking from the article is analysis of the many (by far the majority) of the Court’s Judgments which have been accepted by the legal profession as being soundly based and which in many instances have corrected errors in the courts below.

The article does, correctly, make the point that evolution of an appellate court takes time and the quality of judicial appointments is important.  The US Supreme Court from its establishment took many years to gain the acceptance and respect that it has had since that time. 

I have made the point myself that it was always going to take some time for the new Supreme Court here to work out its appropriate role in the judicial system, particularly when the first Judges had all been elevated from the existing Court of Appeal. That Court has always had a massive work load, which necessarily was error-focused.  It seldom therefore had the time to review the tension between established case law and changing policy demands and to provide definitive statements about legal principle and policy.

My own assessment is that the Supreme Court is now taking a more principled and policy oriented approach to the legal issues with which it has to deal and is more comfortable in articulating that role than perhaps it was initially. 

There are of course also continuing changes to the personnel on the Court – a matter which the Herald article acknowledges.  The existence of a strong Court of Appeal from which future appointments are likely to come does not, in my view, give rise to any concern as to the continuing quality of the Judges of our highest court.

I do think also that there is no proper basis for concern as to the “international reputation” of the Supreme Court. It is a new court and it will undoubtedly have to earn its reputation. But it is building on the long-established fine reputation of the New Zealand Court of Appeal.  New Zealand Judges are extremely well qualified academically, most of them having earned post-graduate degrees at top foreign Universities. 

For instance, two of the existing members of the Supreme Court (Justices Young and Chambers) have doctorates from Cambridge and Oxford respectively, Justice Blanchard and the Chief Justice have Master’s degrees from Harvard and Stanford.  The Judges of the Court of Appeal are similarly well qualified.

The Herald article also discusses the issue of specialisation in the Courts.  It is of course not possible in a six member Supreme Court to have every area of legal specialty represented.  The debate around specialisation really focuses much more on the High Court which deals with the bulk of more major litigation.  That is a hugely important topic but it is a topic for a different day and not to be confused with any assessment of the work of the Supreme Court.

Recent Posts

  1. Directors’ Duties to Creditors in an Insolvency Situation 22-Sep-2023
  2. Redundancy, Good faith and Employment Law 18-Aug-2023
  3. Is the America's Cup a poisoned chalice for New Zealand? 09-May-2023
  4. The Passing of Two Knights of the Realm - Sir Murray Halberg and Sir Ian Barker 07-Dec-2022
  5. Random Legal Thoughts While on a Post-Covid Lockdown European Trip 31-Oct-2022
  6. America's Cup Venue - Fact or Fiction Chris Goode 04-Apr-2022
  7. Covid and the New Zealand Rules Committee Proposed Reforms Chris Goode 24-Jan-2022
  8. A Chat On The Virtual Couch About My Legal Career Chris Goode 26-Nov-2021
  9. America’s Cup Home Defence – Requisition For Special General Meeting Of Members Of Royal New Zealand Yacht Squadron To Discuss Venue For Next Defence Chris Goode 24-Nov-2021
  10. Pandemics 12-Nov-2021
  11. America's Cup - Just Do It and Positivity 20-Sep-2021
  12. September 11 - 20 Years On 09-Sep-2021
  13. Whither America's Cup? Chris Goode 22-Jun-2021
  14. Conducting Civil Appeals Chris Goode 07-Mar-2021
  15. David Barnes (27 April 1958 - 23 October 2020) - A Personal Note Chris Goode 02-Nov-2020
  16. Cannabis Bill Not the Right Reform Chris Goode 07-Oct-2020
  17. Whatever the result, is this the last time the America's Cup event is held in New Zealand? Chris Goode 14-Sep-2020
  18. Cannabis Legal Reform - Arguments For and Against Chris Goode 13-Aug-2020
  19. Will the Proposed Cannabis Legislation Achieve its "Overarching Objective" of Reducing the Harms Associated with Cannabis Use? Chris Goode 18-May-2020
  20. The Debate Continues - Virtual Hearings or Real Hearings Chris Goode 02-May-2020
  21. These Issues were all Predicted Pre-Covid-19 and 6 Years Ago Chris Goode 02-May-2020
  22. And here is a Report from Stuff of a Virtual Hearing this Week Chris Goode 30-Apr-2020
  23. More Correspondence on Covid-19 and the Courts Chris Goode 30-Apr-2020
  24. In Defence of Remote Technology - from Steve Keall Chris Goode 29-Apr-2020
  25. Court Hearings and Covid-19 - Part Two Chris Goode 29-Apr-2020
  26. Court Hearings and Covid-19 Chris Goode 28-Apr-2020
  27. Covid-19 and Executory Contracts: Will the Doctrine of Frustration Apply? Chris Goode 06-Apr-2020
  28. Race, Poverty and Education - Lessons from the UK learned while spending Christmas in London December 2019 Chris Goode 13-Jan-2020
  29. Witnesses in Civil Cases - the Consequences of Not Calling and of Not Cross-Examining - A Paper Presented to the Pacific Islands Lawyers Association, Auckland, 22 November 2019 Chris Goode 21-Nov-2019
  30. The Forthcoming Referendum on the Growing and Supply of Cannabis for Personal Recreational Use Chris Goode 19-Nov-2018
  31. Armistice Day and Its Sequel Chris Goode 13-Nov-2018
  32. An Easy Read of the Rule of Law in the World of Fiction Chris Goode 08-Aug-2018
  33. Bullying, Harassment and Gender Bias Chris Goode 22-May-2018
  34. Criticising Judges Chris Goode 07-May-2018
  35. America's Cup Part 3A Chris Goode 11-Dec-2017
  36. America's Cup Part 3 Chris Goode 04-Dec-2017
  37. Pro Bono Publico as an Aid to Living a Balanced Lifestyle Chris Goode 08-Nov-2017
  38. Terence Arnold Retires From the Supreme Court Bench Chris Goode 10-Apr-2017
  39. From Violence to Redemption Chris Goode 14-Mar-2017
  40. Drugs, Sports and Society Chris Goode 18-Oct-2016
  41. Are Our Law Schools Churning Out Too Many Lawyers? Chris Goode 25-Aug-2016
  42. Equiticorp 20 Years On Chris Goode 07-Jun-2016
  43. The Year in Retrospect Chris Goode 19-Jan-2016
  44. A Good Year for the Farmer Legal Family Chris Goode 30-Oct-2015
  45. Having a Balanced Life Style - Part 4 Chris Goode 21-Sep-2015
  46. A Balanced Life Style (Part 3), Prisoners' Voting Rights, Top Gun, 7000kms in a Corvette, John Maynard Keynes and Atticus Finch Chris Goode 05-Aug-2015
  47. Biographies Chris Goode 13-Apr-2015
  48. The Cost of Justice Chris Goode 13-Mar-2015
  49. The Increase in Unrepresented Litigants and Their Effect on the Judicial Process Chris Goode 11-Feb-2015
  50. Evidence - Notes of Presentation to Continuing Legal Education Seminar November 2014 Chris Goode 01-Dec-2014
  51. Corporate Governance and Directors' Liability Chris Goode 19-Aug-2014
  52. Paper Presented on 2 August 2014 at the Competition Law & Policy Institute of New Zealand 25th Annual Conference Chris Goode 05-Aug-2014
  53. Life in the Fast Lane Chris Goode 06-Jun-2014
  54. 2014 - Roaring Past Chris Goode 04-Jun-2014
  55. Commentary on Paper Delivered by Professor Andrew I Gavil at Commerce Commission Conference Chris Goode 18-Nov-2013
  56. America's Cup Wrap Up Chris Goode 04-Oct-2013
  57. Happiness, Living a Balanced Life and Legal Practice - Part II Chris Goode 15-Aug-2013
  58. America's Cup 2013 Chris Goode 01-Jul-2013
  59. Why the Rules of Evidence Matter in Civil Cases Chris Goode 11-Mar-2013
  60. The High Court in Review Chris Goode 07-Oct-2012
  61. "Criticism of Supreme Court needs to be put in context" as published in the New Zealand Herald 11 May 2012 Chris Goode 23-May-2012
  62. Recent Reform Reports Chris Goode 03-Apr-2012
  63. Happiness, Living a Balanced Life and Legal Practice Chris Goode 09-Jan-2012
  64. In Defence of the Supreme Court Chris Goode 12-Dec-2011
  66. Cross Examination Notes Chris Goode 11-Nov-2011
  67. Are the independence of the Judiciary and the Rule of Law under threat? Chris Goode 16-Oct-2011
  68. Commentary on my commentary on Morse Chris Goode 14-Sep-2011
  69. The passing of three leaders of the Bar Chris Goode 14-Sep-2011
  70. How good is our Supreme Court? Chris Goode 08-Aug-2011

Georgia Racing

Website Managed by Generate Design