OE COURT OE APPEAL ACT.

7

A.—No. 4.

exposes the weak points of that of his adversary. In doing this, decided cases are not only cited and distinguished, but their relative strength as authority discussed. No Judge of any experience will undervalue the assistance capable of being derived from counsel of average ability. They bring out in relief the salient points of the case. They ransack decided authorities for decisions, either closely, or remotely and indirectly applicable to their respective cases. Judges, in the course of the arguments, suggest difficulties, and points which they have to meet, and perhaps cite cases which they must distinguish or reconcile. In this way difficulties are often sifted down to few propositions, or to perhaps one single proposition upon which the decision will ultimately turn; and cases which at first sight bristle with unsettled points, are often reduced to a few comparatively narrow questions upon the decision, or it may be the application of which to the case under discussion, will finally rest. It is quite impossible to over-estimate the value of this exhaustive process. It makes all the difference between an opinion by an eminent counsel, and the decision of an equally able Judge. Nay, more, its value is so great, and is so generally acknowledged, that it imparts a value to the judicial decision, not possessed by the mere opinion of counsel, though the counsel be of larger experience, and greater learning and ability than the Judge. It is submitted that this is an advantage which can scarcely be exaggerated, and which it is submitted ought not to be lightly given up. 2. Besides this, the parties litigant would lose the advantage of the private conference and arguments of the Judges among themselves. Cases are frequently brought before the Judges of the Supreme Court, in their several districts, in which the law applicable to the facts admits of little or no doubt. These are not the cases that are sent to the Court of Appeal. Cases likely to be appealed usually present more or less of difficulty, coupled perhaps with a large stake, which renders it not only desirable but worth while to invoke the decision of a higher tribunal. When these cases have been argued, and the result of the argument has been to eliminate the doubtful points, the Judges often decide at once, unless from the importance of the case, or the magnitude of the stake, a carefully prepared judgment is deemed necessary. In such cases the deliberation of the Judges is merely as to the structure of the judgment. In every case of magnitude not only are the parties entitled to the best reasons which the Judges are able to give for their judgment, but such is the only method of rendering the judgment of any value as an authority in like cases, should any such arise. But the conference of the Judges is of far greater importance when at the close of the case they either differ or one or more of the number has not formed a very decided opinion. Then comes the value of what may be called a second argument, that is, the discussion of the Judges among themselves. Where, under the present Act, cases are submitted to the Judges to be decided " without argument," they are really decided after an argument more or less exhaustive. They have not the arguments of counsel, but they are not decided without the arguments of the Judges, and, if the nature of the case requires it, Judges will often put to each other, or suggest to their own minds, how the case can best be put from the defendant's point of view, and how, from that of the plaintiff. I can affirm, from my own experience of the practical working of the Court of Appeal, that cases not argued by counsel, for instance Crown cases reserved, are most carefully and exhaustively argued by the Judges. Whatever advantage is likely to be derived from this judicial process of discussion, will be lost, but the proposed method of collecting the individual opinions of the Judges, not only throws away this advantage, but also that which has been stated as the first objection. 3. Two questions arise upon the proposed Bill, namely, the saving of expense, and the saving of time. As to the first, the possibility of saving may be considered under two heads ; (1), the saving of expense to the Government representing the public collectively; and (2), the saving of expense to suitors. F/nder the first head there cannot be any saving. The Court of Appeal must meet, as heretofore, to dispose of cases set down and argued as at present. If some such proportion of the present cost of the Court be saved by three only of the Judges meeting half-yearly, that saving has no connection with the proposed Bill. But there will be some such saving to suitors by the usual fees to counsel, but not to the extent which may possibly be anticipated. If the counsel be sent from the locality of the Court below, as has been usually done in appeals from Christchurch, and to a less extent from Dunedin, the expense is no doubt large ; but it is always within the power of suitors to retain Wellington counsels to argue such cases : and then the items of counsels' fees add very little to the cost. The expense of preparing cases for the Judges, and all other proceedings, will be nearly the same under the new as under the old system. Nor will much time be saved. At present the Court meets twice a year, in May and November. The preliminary steps must be taken before the written or printed case is sent up to the Court at Wellington ; so also these preliminary steps must be taken before the cases are sent by post to the Judges. But cases occurring between the rising of one meeting of the Court and its next meeting —a period of five months —may, in some cases, be somewhat expedited, but even this will be reduced to a very moderate advantage. On leaving Wellington, the Judges have generally to hurry to their respective circuits, and within the five months' interval just mentioned, two and sometimes three circuits occur. During the criminal and civil sittings, and the sittings in Banco which follow, the Judge would have no time to consider the cases, and in very few cases would the proposed two months be enough, unless the Bill should contain a clause postponing all other business of the Supreme Court, civil and criminal, until the Judge had written his opinion on the case. If the time for giving the opinion be enlarged to three months, the advantage hoped for from rapidity of decision would be in a great measure lost. My own impression is, that it would often be impossible for a Judge to return the so-called judgment "with reasons " within the two months, unless all other judicial business were laid aside. Avoid this evil by enlarging the time from two to three months, and very little time would be gained. 4. Another advantage which would be lost by the proposed method of decision by the collection of individual opinions of the Judges, without argument and without judicial deliberation and discussion, would be that the cases so decided would have very little authority as precedents. Each opinion would have less weight than the decision of a single Judge pronounced after an exhaustive argument by counsel. In the case of a concurrence of opinion, the decision would have some weight, but it would be much less than a judgment under the present system. At present the cases sent up to the Court of Appeal are very fully and exhaustively argued, and are then carefully considered by the Judges ; and the