Judgment Is Reserved In Benefit Appeal

Press, Volume C, Issue 29518, 20 May 1961, Page 15

Judgment Is Reserved In Benefit Appeal

(New Zealand Press Association! WELLINGTON, May 19. Judgment was reserved in the Appeal Court this afternoon after a two-dav hearing of the case in which Enid Mary Corbett, wife of Robert Edward Corbett, of Dunedin, university lecturer, is claiming family benefit Sayments in respect of her two children uring the twelve months that the family was in England.

For the plaintiff, Mr G. P. Barton submitted that the New Zealand courts were bound by the decisions of the Privy Council even if a’ subsequent decision of the’ House of Lords was in conflict with the decision of the Privy Council, and even if the House of Lords judgment expressly disapproved of the decision of the Privy Council.

There was no right of appeal from New Zealand to the house of Lords, but only to the Privy Council: the House of Lords had no jurisdiction to hear appeal* from New Zealand, and in all the New Zealand decisions which referred to the House of Lords as the supreme tribunal in the British Commonwealth there were no Privy Council decisions in conflict with or disapproved by the House of Lords, counsel submitted. "It would be extraordinary if in 1961. for the first time in all its long existence, the Privy Council was to state that it would not follow the House of Lords," observed Mr Justice North.

“X would respectfully submit that it would be more surprising if the Privy Council would say that it was bound by the House of Lords,” submitted Mr Barton.

“Has the Privy Council ever, in spite of a decision of the House of Lords’, taken a line of its own?” asked Mr Justice Cleary. “So far as I am aware, no, sir,” replied Mr Barton, “but where they have not been altogether happy with a House of Lords’ decision, the Privy Council has been at some pains to distinguish the cases. Over the last two years the House of Lords has become increasingly embarrassed by some of its earlier decisions and has made some rather fine distinctions in order to get around them.” Privy Council Not Bound The House of Lords is bound by its earlier decisions, whereas the Privy Council is not so bound, submitted Mr Barton. If it was bound by the House of Lords,

the Privy Council would lose its freedom to depart from its earlier decisions. “You can't have one law in Enaland, another law in New Zealand.” said Mr Justice North. “And in my view it is no answer to say that there is another law in Scotland, as that is a matter preserved by statute." The cases in conflict are an appeal to the Privy Council from Scotland, and an English appeal to the House of Lords.

The Social Security Commission had a discretion to allow payments to persons abroad, continued Mr Barton, and in the conduct of its inquiry had all the powers of a magistrate in hearing interested parties, summoning witnesses and taking evidence.

Mr Barton concluded his argument by formally moving for the motion. For the Crown, the Solici-tor-General, Mr H. C. Wild, submitted that the House of Lords had settled the law of England on the question of Crown privilege. It was the later decision and it represented the unanimous decision of seven Law Lords, including two who were party to the earlier decision, that the Privy Council decision was wrong. The House of Lords could scarcely have made more plain their intention to settle the law.

Approved by Government The matter shortly afterwards arose in New Zealand and was taken up by the Law Society. In a letter to the Law Society, the Attorney-General of the day intimated that the principles laid down by the House of Lords were approved of by

the Government and would be followed in practice. Continuing. Mr Wild said that in the 19 years since the House of Lords’ decision it had in fact been followed both in New Zealand and Australia.

Mr Barton had relied to some extent on the 1956 House of Lords’ decision which ruled that the earlier House of Lords’ decision did not apply to Scotland, but, in counsel’s submission, this was a decision that left the law of England intact. In normal circumstances the New Zealand Court of Appeal was bound to follow the Privy Council, conceded the Solicitor-General, but that duty did not extend to a decision on English law* applicable in New Zealand if that decision had later been expressly disapproved of in a House of Lords’ judgment on the same point In such a situation it should apply the law as settled by the House of Lords.

Circumstances “Dißerent’’ The Solicitor-General then referred to several cases in which House of Lords’ decision had been applied in New Zealand, but where there were no Privy Council decisions expressing a contrary view. Mr Justice Cresson: “Many seem to introduce the qualification ’the conditions being the same in both places’.”

Mr Wild: “Yes" Mr Justice Gresson: “New Zealand circumstances are rather different in the extent to which the Crown here is in every activity there is. If you are going to put a blanket protection on, it is going to be a terrific blanket. I don’t mean on the security aspect, but on the proper functioning of the Public Service. If all that is blanketed out, there is a terrific field which is just blocked out.”

Mr Wild concluded his submissions. Mr Barton replied briefly and the Court of Appeal than announced that it would reserve its judgment.