THE PRESS SATURDAY, APRIL 1, 1989. Reform of the courts

Press, 1 April 1989, Page 20

THE PRESS SATURDAY, APRIL 1, 1989. Reform of the courts

The chief proposals from the Law Commission for reforming the New Zealand court system concentrate on issues of machinery and method. No substantial matters of principle or fundamental changes to the nature of justice are proposed, although the commission starts from — and endorses — the premise that the right of appeal to the Privy Council will be abolished and ultimate jurisdiction will reside in New Zealand. This decision has indeed already been made. The Government has not yet set a date, but by promising to remove the Privy Council from New Zealand’s court system it left the commission with the more prosaic task of ordering the work of the courts in the certainty of this change.

Within these limits the commission has produced coherent proposals that would change the nature and work-load of the courts dramatically. District Court judges, for instance, would take much more civil work and more criminal trials, which are clogging the High Court. The present limitation on the criminal jurisdiction of District Court judges sitting with juries would be removed, so that a number of them could preside over trials involving all criminal offences. In appropriate cases a High Court judge would have the power to order a trial to be heard in the High Court, either through the agreement of the parties or because of its general importance or complexity.

The High Court would retain exclusive jurisdiction for more important civil matters. The District Court, however, would be given a much wider civil jurisdiction. This is intended to take pressure from the High, Court and to make best use of the range of abilities of judges of the District Court. Increasing the powers of District Court judges in this way is a significant departure from what seemed appropriate when changes to the court system were made eight years ago as a result of the Royal Commission on the Courts, chaired by Sir David Beattie. The latest proposals are advocated by the Law Commission because of the need to spread the work-load, because “too much business has been gravitating to the top of the system, with the consequence that the pressures on the High Court have grown too large and much too rapidly.”

This emphasis on efficiencies and cost savings in the Law Commission’s proposals raise doubts about whether expedience has supplanted jurisprudence. To some people the arbitrary distinctions between civil and criminal capabilities of the District Court might seem arguable. The heavier work-load for the District Courts might seem incongruous at a time when District Court judges already complain of being overburdened. But reflection suggests that the Law Commission has arrived at the correct solutions.

District Court judges are, after all, qualified and experienced judicial officers and the commission’s proposals ensure that the District Court does not have to take cases that it is not suited to handle, or which the High Court believes need a superior jurisdiction. The mix of criminal and civil also seems appropriate; criminal cases more often require simple resolution of the facts, and civil cases tend to encompass the more ticklish complexities of the law.

As to the burden of work on the District Courts, the Law Commission has evidence that the problems arise not so much from the level of law they must apply, but from their organisation and efficiency. The commission found that the average District Court judge sits in court for three hours a day. The judges have duties outside the courtroom, it is true, but the commission seems to have had no

trouble agreeing that three hours a day on the bench is “unacceptably low.” As the commission reports, a number of District Court judges “have indeed indicated that they were not only willing but wished to do more. We propose that this should happen.” The commission proposes a five-hour sitting day, five days a week, for at least 210 days a year, and the proposal does not seem unreasonable.

The administrative demands on District Court judges extend even to their time in court. There they not only decide, or give judgments, or impose sentences, they also advise defendants on their rights of representation, take and record pleas, record the time and place of fixtures determined by others (often the prosecution staff), and — as one judge expressed it feelingly — “remand and remand and remand.” The courts are already trying new ways to cut this wastage and to save the time of the courts in hearing contested cases.

Pre-trial conferences by the parties, for instance, have been shown in a Wellington pilot scheme to result in a substantial reduction in the number of witnesses required to give evidence, because of agreement on the matters that were in dispute; an increase in the number of guilty pleas, presumably as a result of the disclosure by the prosecution of its evidence; a reduction in the time between plea and hearing from between three and six months to generally no more than six weeks; and almost all cases proceeding on the date fixed, compared with up to 70 per cent requiring further remand before the pilot scheme began.

The commission has made a good case for the District Courts to be the work horses of the system, freeing the High Court to deal with more serious cases and to hear appeals from the lower court. The High Court would also become the principal testing ground for aspects of commercial and public law, and for interpretation of the law. Finally, the present Court of Appeal, to be renamed the Supreme Court, would not only become the court of last resort, but would also have responsibility for the clarification and development of the law. The division of responsibility and work thus arrived at is logical and compelling; the flow of authority and the relationship of the courts each to the other seem to provide the checks and balances that are the essence of a fair and accessible legal system.

Almost as a bonus, the proposed system is intended to offer more efficient justice at a better price. The commission estimates that the rearrangement of resources at all levels will allow a reduction in the number of judges — in the number of High Court judges from 25 to perhaps 20, and in the number of District Court judges from 98 to 73 or less. Reorganisations do not always provide the cost savings expected of them, but if even a half of the commission’s expectations are realised then the changes will be worth while. To provide for one District Court judge and the appropriate infrastructure costs the Justice Department about $350,000 a year, a figure that does not make provision for superannuation. More important than matters of cost, however, is the provision of a system that more effectively enforces the law, upholds constitutional relationships, protects citizens against abuses of the power of the State, and settles disputes peacefully and fairly according to the law. The impending removal of the right of appeal to the Privy Council is an appropriate time to redefine how this system should be structured. The Law Commission has provided a model that is workable and which should discharge all of those functions reasonably well.