Court of Appeal

Press, Volume XCVI, Issue 28371, 2 September 1957, Page 10

Court of Appeal

The Judicature Amendment Bill, which provides for a separate and permanent Court of Appeal in New Zealand, fulfils an undertaking given, by the Attorney-General (Mr Marshall) on behalf of the Government to the Dominion Legal Conference in Christchurch last April On that occasion Mr Marshall recalled that the proposal has a history, of 50 years, during which several attempts to establish a separate Court of Appeal failed in the face of difficulties. Since the war, increasing judicial work, keeping pace with the growth of population and legislation, has caused the judicial system to come under critical examination. The New Zealand Law Society has repeatedly said that a separate Court of Appeal would notably improve the judicial machinery. Having accepted this authoritative opinion, and having made a firm decision' to establish a new court, the Government might have gone further than it proposes in this bill. One very strong argument in favour of a separate Court of Appeal was that. it would relieve the Supreme Court Bench of’the work entailed jn sitting as a Court of Appeal. The accumulation of work in various Supreme Courts argues that Judges have more work than they are able to discharge with the care and deliberation that judicial decisions call for. From the viewpoint of the public, long delay in bringing litigation to finality when the courts are overworked amounts to denial of justice. It had been hoped, therefore, that the decision to establish a separate Court of Appeal would relieve the Supreme Court Bench entirely of its Appeal Court duties. With certain qualifications the bill indeed does this —but at the cost of two Judges removed from the strength of the Supreme Court Bench. The bill increases the number of puisne Judges from 12 to 13

“ in order to make three Judges “ available for appointment to “the Court of Appeal As litigation increases (as it is reasonable to suppose.it will) pressure of work in -the

Supreme Court will make additions to the numerical strength of the Bench inevitable? It would surely be better to establish a Court of Appeal of three Judges without disturbing the strength of the Supreme Court Bench. It is to be regretted, also, that the “ separateness ” of the Court of Appeal proposed in this bill is far from absolute. A Judge or Judges of the Supreme Court may sit as an additional Judge or Judges of the Court of Appeal. It appears that the provision is intended to be used sparingly—only when the Chief Justice and the President of the Court of Appeal certify that such a course is expedient. But there are two very strong objections to the provision. The first, and lesser, objection is that it denies, to some extent at least, one of the main practical advantages of the Court of Appeal —that it should simplify and lighten the work of Judges of the Supreme Court. A much more cogent objection is that the provision conflicts with an important judicial principle. Speaking to the legal conference a few years ago, Mr H. P. Leary, Q.C., said that the method by which an appeal is made against the decision of a •Judge to his brethren on the Supreme Court is “ unsound “ and against the tendency if “British judicial institutions” It is difficult to understand why the Government, with the means and the opportunity to eliminate this weakness in the judicial system, should retain it in a reformed structure. It is to be hoped that the Government will yet be persuaded to amend the bill. The concept of an entirely separate Court of Appeal is too good to be weakened at the outset, except for the strongest and most convincing reasons.