Permanent Court of Appeal

Press, Volume XCV, Issue 28260, 24 April 1957, Page 12

Permanent Court of Appeal

The Attorney-General (Mr Marshall) made a very welcome announcement to the Dominion Legal Conference: the Government will introduce legislation at the next session of Parliament to enable a permanent Court of Appeal to be established in New Zealand. As Mr Marshall recalled, the proposal has a history of 50 years, during which several attempts to establish a separate Court of Appeal have failed in the face of difficulties. Increasing legal work, keeping pace with the growth of both population and legislation, has caused the judicial system and its machinery to come under critical examination since the war; and for several years now the New Zealand Law Society has taken appropriate opportunities to make known its opinion that substantial improvements would •follow the establishment of a separate Court of Appeal Having accepted this view and made a firm decision to establish a new Court, the Government seems to have become strangely hesitant to put it into full effect. Though he emphasised that the proposals for the constitution of the Court could be regarded as “ flexible ”, Mr Marshall did say that they had been approved by the Government. The Government must therefore be credited with the anomalous concept of a separate Court of Appeal (normally of three permanent members) to which Judges of the Supreme Court might be attached or on which they might be invited to sit “on important cases This proposal denies, to some extent, at least, one of the main practical advantages of a Court of Appeal—that it should simplify and lighten the work of Judges of the Supreme Court. Worse, it conflicts with an important judicial principle. Speaking to the Legal Conference three years ago, Mr H. P. Leary, Q.C.. said that the present method by which an appeal is made against the decision of a judge to his brethren on the Supreme Court bench is “unsound and “ against the tendency of British “ judicial institutions Few will question the roundness of this reasoning. Consequently, it is difficult to understand why the Government, with the means and the opportunity to eliminate from the New Zealand judicial system the obvious disadvantage mentioned by Mr Leary, should apparently go to some trouble to retain it in a reformed structure.

The reason may possibly be

found in the excessive concern for equality of status that is to be discerned in the proposals Judges of the Court of Appeal and of the Supreme Court will enjoy the same status and salaries, and though “it may “perhaps be difficult to avoid “ entirely the idea of promo- “ tion ” from the Supreme Court Bench to the Court of Appeal, “ it will in fact be a transfer ” What is the objection to the superior status of members of a superior Court being acknowledged? No such objection is found in the relevant English Courts: a puisne judge of the High Court is known as “the “Honourable Mr Justice”; a judge of the Court of Appeal is known as “ the Right Honour- “ able Lord Justice ”; and the Lords of Appeal in Ordinary (who sit in the House of Lords) bear the title of the respective rank of the peerage to which they belong. Moreover, the English distinctions dispose of the polite fiction offered by Mr Marshall when he spoke of the “principle by tradition, though “ not by constitutional rule, “that a Judge of the Supreme “ Court has reached the highest “judicial position”. It would ill serve a sound concept if the effectiveness of the new Court were hampered by a misplaced desire for egalitarianism among Judges.

It is difficult to take seriously Mr Marshall’s argument that there is “ merit ” in the proposal to mix the Court of Appeal and the Supreme Court because it would enable Judges in the South Island “to break out “ from their isolation from time “to time With present-day facilities, it is difficult to think of anyone isolated from the main body of thought in his particular profession. But since Mr Marshall perceives a danger of isolation in the case of Judges, perhaps he should take his reforms further. It might be opportune to consider whether the practice of having resident Judges in the main centres has not outlived its day, and whether a circuit system, as in England and elsewhere, would not be of advantage to the administration of justice Travel is now much easier and quicker tljan when the resident judge system was instituted; a judge could go from one end of New Zealand to the other in a day if need be. The Government should not be afraid to look at innovations as, with appropriate advice and help, it seeks ways to strengthen the judicial system at its highest level.