VALUABLE SAFEGUARD

Sun (Auckland), Volume IV, Issue 954, 23 April 1930, Page 12

VALUABLE SAFEGUARD

APPEAL TO PRIVY COUNCIL INTERESTING PAPER ■'We in New Zealand live in small communities, in which litigants. witnesses, counsel and judges tend at times to know each other inconveniently well; in which disputes arise in which all of us take sides, and in which heated feelings may be generated. fn such circumstances a court at a serene and olympian distance is an invaluable safeguard." said Mr. J. B. Callao, of Dunedin, reading a paper on ‘‘Appeal to the Privy Council" at this morning's session of the New Zealan Law Society’s Conference. Although tile members of the Judicial Committee of the Privy Council are lawyers of immense experience and the highest eminence, it has sometimes been hinted that as there is no age limit they retain office too long,” said Mr. Callan. This was a criticism which, if it had any substance, afforded merely a reason for reform, and none for abolition. Mr. Callan said that it would only be honest to admit that at one period the judicial committee appeared to have failed more than once to appreciate the true basis, origin and genius of our New Zealand land tenure, particularly with reference to native lands. In one case, Wallis and others v. the Solicitor-General. 1903, misconception on these subjects led their lordships so far astray that they imagined the New Zealand Court of Appeal to have been guilty of subservience to the executive government. The Court of Appeal, whose judgment was attacked, had consisted of Williams Denniston. Conally and Cooper, ,T. J. To New Zealanders the most obvious feature of the accusation was its absurdity. But the honour of the court beyond New Zealand had to be considered. Carefully-prepared protests were made by Sir Robert Stout and by Mr. Justice Williams and Mr. Justice Edwards as they then were. The protests were read to the Court of Appeal and were widely published. They were masterpieces. Those of Sir Robert Stout and Sir Joshua Williams were full of close, careful and convincing reason, and all three protests were admirable in the restrained dignity of their language. No member of the New Zealand Bar could read them today without pride and satisfaction, said Mr. Callan. “Since then I do not think that there has been any instance in which New Zealanders have had cause to complain that their lordships failed to understand the idiosyncrasies of our law,” added the speaker. “A NOBLE IDEAL” He thought that the very enormity of that, offence twenty-seven years ago was their best assurance that the judicial committee would not fail again. Not even the necessities of the moment, lie said, blinded the New Zealand Judges of those days to the immense advantages of retaining a central court of appeal for the Empire. Sir Robert Stout, in his protest, said: “A great Imperial judicial tribunal, sitting in the capital of the Empire, dispensing justice even to the meanest of British subjects in the uttermost parts of the earth, is a great and a noble ideal.”

And on the same occasion Sir Joshua Williams said that the decision that this court should continue to be subject .to review by a higher court, was of the greatest importance. The knowledge that a decision could be reviewed was good alike for Judges and for litigants.

“The destruction or diminution of the Privy Council appears to be in the air,” said Mr. Callan. It is also fairly clear that in some of the Dominions there is an absence of enthusiasm for remaining subject to the jurisdiction, and that one or more may be actively impatient to shake off the jurisdiction altogether.

“In New Zealand the Law Journal supports the retention of the Privy Council, and quoted Sir Robert stout as liavipg said: ‘I do not think there is a single Dominion or colony that, it asked td*abolish the appeal to the Privy Council, would agree to the suggestion.’ ” Personally, he thought there was a danger of the Privy Council being weakened or destroyed, and the danger should he combated, not ignored. The weakening of the ties that bind together widely several peoples that lean on each other for support is involved, said the speaker. Were other Dominions to abandon the Council, New Zealand could hardly expect it to continue its existence for it alone. He agreed with Sir Robert Stout that they should do what they could to strengthen the Empire and keep it together, and not to weaken it. “Are we as important to the centre as the centre is to us?” he asked. If the ties were slight, and intangible, what were the provable ultimate consequences of ever}' gesture of severance that might be made? Those queries touched of national policy. JUDGE-MADE LAW “Much of the law is made by judges,”, he continued. “It was a hard saying, and those who believed that the people really made all the laws under which they lived would deny it. It might be said “Let us have no more judge-made law,” but such an ambition could not be realised. In a real democracy no law could long prevail which was contrary to the active wishes of a substantial majority, and no greater measure of popular control than this could he expected.

Meanwhile community life must be carried on by imperfect human beings, who, because they are imperfect, continually involve themselves in disputes, which they will not and cannot settle. The ingenuity of man as a law breaker has always been greater than his foresight as a law maker. The interests of the law evader are more vitally affected than those of the law maker. He gives more time and his attention to his business, and he works under conditions more favourable to results. Moreover, new situations are always arising. For these reasons it continually happens that citizens bring before the courts disputes on which there is no clear definite rule. The democracy, through its Parliament, has either not spoken at. all, or has spoken ambiguously. Yet the dispute must be settled, and the Court must settle it. In the result, the Judges make law; and that law. once made, stands until unmade by higher authority. This aspect of the work of a Judge is controlled by any court of appeal to which he is subject. Change the ourt of appeal, and you change the

development, whether for bettei oi worse he did not consider. He very seriously suggested that it New Zealand were to have its final Court of Appeal it would be running a great risk —the risk that in a fev generations the work of English judges and text-writers might become 101 them a mass of useless and foreie.i lumber. If for the last 90 years w«. had no connection with any appella.t tribunal in England there would nov be a number of matters to which tne case law of X- w Zealand differed front the case law of England. Under present conditions our daily voia brings us into close and continuous touch with the best efforts of the be,t intellects in England that are or hate been dedicated to law. said Mi. I ai lan. From them we derive a propel conception of the high and useful place our profession has in the scheme of society : nd a proper realisation of the serious duties tie bat-. U New Zealand have the right of recourse to such a tribunal. Me would be singularly unfortunate if e lost that right. And if we lost it through a failure to ' value . ' should neither receive sympathy deserve it,” concluded Mr Callan A motion that the retention or the right of appeal to his MajeStymCouncil was in the best interests of New Zealand was earned with one dissenting voice. Sir Francis Bell warmly eongiatulated Mr. Callan on his very able paper. He said he agreed eutirely with Mr. Callan and the Chief Justice that it was of the greatest importance to New Zealand that it should have the great privilege of having avaiable to the country the finest minds in London. “It was so great a privilege, said Sir Francis, “that I canuot under stand why any of the Dominions wr.ut to relinquish it.”