James Farmer


Recent Reform Reports

Tuesday, April 03, 2012

I have to confess that reading reform reports is not an activity that I rush to do.  In the past, I have made more than my share of submissions on various proposals and have seldom found it a rewarding task.  Nearly always – or so it seems - the submissions have had little effect and one could perhaps be forgiven for thinking that often the calling for submissions is little more than a formal process that those who have thought up the proposal necessarily go through to give their proposal the stamp of apparent acceptance.

That may be too general a view because clearly over the years the very good work done by new legislation committees and the like operated by the Law Society and the Bar Association do have an impact.  Perhaps my own submissions to the Rules Committee on written briefs of evidence – which have had little effect over the years – are just seen as the views of the obsessed (though, happily, there are other senior members of the Bar who share those views).

In any event, I have recently read two new reports (not entirely in the case of the first one mentioned as it is very lengthy) and am motivated to say a little about them.  These are (1) the Law Commission’s issues paper reviewing the Judicature Act and (2) Justice Forrie Miller’s report on managing the High Court’s civil caseload.


Chapter 7 of the Paper addresses the Commercial List and the more general subject of specialisation of Judges on the High Court.

The main features of the Law Commission’s analysis are: 

  1. the Commercial List has worked well but has a dwindling number of new filings 
  2. increased case management for all High Court civil cases has diminished the advantages of the Commercial List’s interlocutory processes 
  3. a problem with the effectiveness of the Commercial List has been the fact that cases fall back into the general list once interlocutories are completed (something which has been pointed out constantly from the inception of the List by the Commercial Bar) 
  4. moving commercial cases to Auckland is unjustified (though there is now, very recently established, a Commercial List in Wellington) 
  5. it is unrealistic to fund and establish a stand alone Commercial Court 
  6. the best solution is either to revamp and extend the Commercial List (to include Wellington and Christchurch and to maintain cases in the List for trial purposes) or to establish a panel of Commercial Judges who would deal with both the interlocutory and trial stages of commercial cases.  The Commission pointed out that there is not much difference between the two but preferred the panel system.

The Commission expressed the view that the generalist nature of the High Court is “one of its great strengths” and that formal specialisation “could have the effect of excluding some judges from exercising parts of the Court’s jurisdiction entirely”.

One wonders why New Zealand is different from Australia and England where Judges at this level are indeed excluded from exercising parts of the general jurisdiction by virtue of the formal division between Common law and Equity (Australia) and Queen’s Bench and Chancery (England) and by the existence of other formal divisions (including commercial lists and in England the Commercial Court).  Far from being a great strength, the generalised jurisdiction exercised by Judges in the High Court is, in my view, a weakness, not just in ensuring that the most appropriately qualified and experienced Judges determine commercial cases but in all other kinds of cases as well (including criminal cases which Judges with little or no trial experience (civil or criminal) are expected to preside over (to the detriment of prosecutors and accused persons).

The Commission says that the fact that there are strongly divergent views in the Judiciary on the issue of specialisation in the High Court is a “serious impediment to effective change” as any proposal for change would need the Judiciary’s support.  With respect, this is too important an issue to be made contingent on the Judiciary’s consent or, worse, on all Judges giving their consent.

It is a matter for public concern that the High Court is perceived to be losing jurisdiction over commercial cases to the private arbitration system (in which former High Court Judges with reputations in commercial law are seen by some as a better alternative to the lottery of whether an appropriate High Court Judge will be allocated to decide a commercial case).  Whether that perception is reality or whether it is simply the propaganda of the arbitration lobby is impossible to determine in the absence of empirical data.  However, perception can over time transform to reality and claims of this kind need to be taken seriously.

Although private arbitration serves a useful function in limited areas, it should not, in my view, be permitted to supplant the High Court’s jurisdiction across the spectrum of commercial law unless we are content to have a system of secret commercial jurisprudence.

The commercial community needs to be informed in no uncertain terms that there is an effective specialist Commercial List, Division or Court which is equipped to handle all aspects of the resolution of a commercial dispute.  A rotating panel of commercial Judges operating in the general jurisdiction of the High Court will not get that message across and so I favour  having a Commercial List, Commercial Division or Commercial Court that is so named expressly.


Things are happening – and very much for the better – in the High Court so far as case management and more especially fixtures are concerned.  The Judges are to be commended for being pro-active in considering how to improve the system and for conducting a kind of road show with the profession to present and listen to views.

The biggest single complaint in recent years has been the time that it takes to get a fixture in the Auckland High Court in particular and the time that it takes for reserved Judgments to be delivered.  As to the latter, it has always seemed to me that a delay of months in bringing down a Judgment not only undermines the whole point of the oral hearing but it also leads to a greater possibility of error if the paper is put aside and then picked up a long time later with the problem of the Judge having to reconstruct where his or her thinking was when the case was last looked at or thought about.  In England, any Judgment of the High Court which has been reserved for more than 6 weeks must be drawn to the Lord Chief Justice’s attention – presumably providing its own incentive to get the Judgment out before that happens.

I have heard it said that, at least at the appellate level, Judges need time to debate the case among themselves and to persuade one another to their own point of view. Maybe. That was seldom the case in the Privy Council where the Law Lords in most instances discussed and debated the outcome immediately after counsel had been asked to retire from the Chamber. When I first appeared there, I was told that if the Usher was slipped five pounds he would tell you later that day whether their Lordships were “pleased” or “displeased”.  And it was true! There are some traditions that, although slightly corrupt, have such acceptance that nobody thinks to question their propriety.

The Miller report is an excellent and easily readable piece of work.  I will not try here to repeat the detail of it as it should be read by all.  It traverses literature on case management and makes the fair point that case management must “strike a balance between accuracy and efficiency, recognising the implications of delay both for the immediate parties and for other court users”. It resurrects the truism that justice delayed is justice denied and that a stronger party should not be able to use delay to defeat a weaker party.

Reference is also made to the fact that the proportion of time spent by High Court Judges on crime has dropped considerably – from 50% to 34% - since methamphetamine cases have been removed to the District Court.  What that has done for civil trials in the District Court is not discussed!

The report also fairly presents the criticisms that are made of Judges acting as managers and I should acknowledge my own reservations about this in the past.  I have to some extent repented but still think that it is important that solicitors and counsel accept responsibility for sorting out as much as they can between themselves rather than simply handing over procedural issues to the Judge to solve.

The Report reveals that fixtures are subject to a “loading” to allow for the fact that many cases settle before trial – rather like the overbooking policies of airlines who, based on experience, reckon that a certain percentage of booked passengers will not turn up for the flight or will change their flights.  Justice Miller though acknowledges that if the Court system cannot deliver on the fixtures, it will lose credibility among lawyers who will then “bend their energies to delaying trial instead of preparing for it or settling”.  He recommends further pre-trial conferences to check readiness for trial and the monitoring of compliance with dates for the exchange of evidence to avoid applications for adjournment.

One point that I would, with respect, take strong issue with the Report is the view that, because a small number of firms and counsel appear in many long causes, the court may need to be less accommodating of counsels’ unavailability because of other fixtures.  Naturally, as one of the counsel referred to, I have a self-interest in taking issue with this view.  However, the fact is that the pre-trial investment by clients in their counsel of choice in such cases is immense, given the long gestation period (through interlocutories and the time needed for working up the case) that such cases typically demand.  To require the briefing of other counsel would be unfortunate to say the least.  Miriam Dean QC said as much, in more eloquent terms, at the forum that was held in Auckland at which the Chief High Court Judge, Justice Helen Winkelmann, and Justice Raynor Asher presented the proposed changes.

The fact is that the fixture situation at the Auckland High Court has improved dramatically over the past 6 months.  One suspects that credit for this is due to the Registrars who are responsible for fixtures and to a new attitude by the Judges who are now actively looking for ways to make trials happen.  One suspects that overloading may being taken to new levels but the reality is that the great bulk of cases will not settle until a fixture has been made.  It is the date that compels most litigants (and lawyers) to be realistic about whether an attempt should be made to settle the case.  It is a fact that fear – the fear of going into the witness box, the fear of having to present a case – that drains much of the overconfidence of clients and their lawyers from them.

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