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The Structure of the Courts

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The Structure of the Courts REPORT NO 7 The Structure of the Courts March 1989 Wellington, New Zealand 2 Other Law Commission publications: Report series NZLC R1 Imperial Legislation in Force in New Zealand (1987) NZLC R2 Annual Reports for the years ended 31 March 1986 and 31 March 1987 (1987) NZLC R3 The Accident Compensation Scheme (Interim Report on Aspects of Funding) (1987) NZLC R4 Personal Injury: Prevention and Recovery (Report on the Accident Compensation Scheme) (1988) NZLC R5 Annual Report 1988 (1988) NZLC R6 Limitation Defences in Civil Proceedings (1988) Preliminary Paper series NZLC PP1 Legislation and its Interpretation: The Acts Interpretation Act 1924 and Related Legislation (discussion paper and questionnaire) (1987) NZLC PP2 The Accident Compensation Scheme (discussion paper) (1987) NZLC PP3 The Limitation Act 1950 (discussion paper) (1987) NZLC PP4 The Structure of the Courts (discussion paper) (1987) NZLC PP5 Company Law (discussion paper) (1987) NZLC PP6 Reform of Personal Property Security Law (report by J H Farrar and M A O'Regan) (1988) NZLC PP7 Arbitration (discussion paper) (1988) NZLC PP8 Legislation and its Interpretation (discussion and seminar papers) (1988) NZLC PP9 The Treaty of Waitangi and Maori Fisheries - Mataitai: Nga Tikanga Maori me te Tiriti o Waitangi (background paper) (1989) 3 The Law Commission was established by the Law Commission Act 1985 to promote the systematic review, reform and development of the law of New Zealand. It is also to advice on ways in which the law can be made as understandable and accessible as practicable. The Commissioners are: The Rt Hon Sir Owen Woodhouse KBE DSC - President Jim Cameron CMG Sian Elias QC Jack Hodder Sir Kenneth Keith KBE Margaret A Wilson The Director of the Law Commission is Alison Quentin-Baxter. The offices of the Law Commission are at Fletcher Challenge House, 87-91 The Terrace, Wellington. Telephone: (04) 473 3453. Facsimile: (04) 471 0959. Postal address: PO Box 2590, Wellington, New Zealand. Report/Law Commission, Wellington, 1989 ISSN 0113-2334 This Report may be cited as: NZLC R7 Also published as Parliamentary Paper E 31D 4 TERMS OF REFERENCE 11 PURPOSE OF REFERENCE 11 REFERENCE 11 PRINCIPAL RECOMMENDATIONS 12 THE OVERALL STRUCTURE 12 THE BUSINESS OF THE COURTS (CHAPTER III) 12 ORIGINAL BUSINESS (CHAPTER V) 13 APPEAL BUSINESS (CHAPTER VI) 14 THE JUDGES (CHAPTER VII) 16 LEGISLATIVE PROPOSALS (CHAPTER IX) 16 I INTRODUCTION AND SUMMARY 17 COURTS IN A FREE AND FAIR SOCIETY 17 TWO QUESTIONS OF STRUCTURE 18 OTHER METHODS OF DISPUTE SETTLEMENT 18 CHANGES IN SUBSTANTIVE LAW 19 OTHER RELEVANT PRINCIPLES AND CRITERIA 19 OUR PROPOSALS 25 II THE COURTS IN ACTION 36 THE BUSINESS OF THE COURTS 36 A COURT MODEL 37 Recent Changes in Court Structure 56 THE BROADER CONTEXT 61 III THE BUSINESS OF THE COURTS: SOME CHANGES 65 INTRODUCTION 65 ALLOCATION OF POWERS BETWEEN THE EXECUTIVE GOVERNMENT, THE COURTS AND TRIBUNALS 66 ARBITRATION AND OTHER METHODS OF DISPUTE SETTLEMENT 67 CRIMINAL BUSINESS OF THE DISTRICT COURT 70 5 A CONCLUDING COMMENT 78 IV THE STRUCTURE OF THE COURTS: OVERALL APPROACH 80 INTRODUCTION 80 ORIGINAL BUSINESS 81 CIVIL JURISDICTION 87 CRIMINAL JURISDICTION 89 THE FAMILY COURT 91 A SEPARATE COURT? 92 APPEAL BUSINESS 95 COMPETING PRINCIPLES 96 SECOND APPEALS 100 THE GENERAL PROPOSALS 105 V THE ORIGINAL BUSINESS 106 INTRODUCTION 106 CONCURRENT JURISDICTION 107 CIVIL JURISDICTION 113 JUDICIAL REVIEW; INHERENT JURISDICTION 115 JUDICIAL REVIEW LEGISLATION 117 ARBITRATION LEGISLATION 118 COMPANIES, INSOLVENCIES, TRUSTS 118 PROBATE AND ADMINISTRATION 119 INTELLECTUAL PROPERTY 120 CRITERIA FOR TRANSFER 121 FAMILY MATTERS 123 EQUITY AND GOOD CONSCIENCE 126 CIVIL JURIES 127 A SINGLE SET OF RULES 130 CRIMINAL JURISDICTION 130 6 EXCLUSIVE HIGH COURT JURISDICTION? 132 CRITERIA FOR TRANSFER 134 SENTENCING IN THE DISTRICT COURT 137 A SIMPLIFICATION OF THE LAW OF CRIMINAL PROCEDURE139 ORIGINAL JURISDICTION OF THE SUPREME COURT 140 VI THE APPEAL BUSINESS 143 INTRODUCTION 143 THE PRESENT SYSTEM 143 THE LEGISLATIVE CHOICES 145 AN APPEAL SYSTEM FOR THE FUTURE 162 APPEALS TO THE SUPREME COURT 179 VII THE JUDGES 187 INTRODUCTION 187 NUMBERS OF JUDGES 188 RECRUITMENT 194 SPECIALISATION 195 MASTERS 197 THE CHIEF JUSTICE OF NEW ZEALAND 199 CERTAIN ADMINISTRATIVE MATTERS 201 VIII ADMINISTRATIVE MATTERS 202 INTRODUCTION 202 INFORMATION 204 JUDICIAL FINANCE 205 TECHNOLOGY 206 A RECENT INSTITUTIONAL DEVELOPMENT 207 IX LEGISLATIVE PROPOSALS 209 INTRODUCTION 209 OUTLINE OF A NEW COURTS ACT 210 7 PROCEDURE 220 CRIMINAL JURISDICTION 226 FAMILY JURISDICTION 227 APPENDIX A 228 APPENDIX B 231 Courts of General Jurisdiction: A Summary of Legislation 231 introduction 231 DISTRICT COURTS 232 HIGH COURT 237 COURT OF APPEAL 239 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL 241 APPENDIX C 243 The Courts: General Statistics 243 APPENDIX D 248 The Courts: Appeal Statistics 248 APPENDIX E 256 High Court: Exclusive Original Jurisdiction 256 PART 1: CIVIL 256 PART 2 260 PART 3: CRIMINAL 262 APPENDIX F 263 Provisions for Appeal to one Court from Another 263 THE FAMILY LAW PROVISIONS 264 THE SPECIFIC PROVISIONS 265 APPENDIX G 267 Provisions for Appeal to Courts from Tribunal and Related Decisions267 APPENDIX H 271 A Chronological List of Appeals from New Zealand Decided by the Judicial Committee of the Privy Council 271 APPENDIX I 283 8 Court, Tribunal, Government: Criteria for Choice* 283 THE CHOICES 283 THE CRITERIA FOR CHOICE 284 INDEX 289 9 20 March 1989 Dear Minister I am pleased to submit to you Report No 7 of the Law Commission, on The Structure of the Courts. The Report indicates the legislation which would be needed to give effect to the proposals made in the Report if they are adopted. We would of course be pleased to help with the further elaboration of the legislation, as well as with the related critical administrative steps. You will recall that the purposes of your reference are stated in broad terms. They include such matters as the ready access of New Zealanders to the courts. The reference itself, our discussion paper, the main submissions and our consultations, research and deliberations all emphasise the structure of the courts. At this stage it is this matter which has demanded major attention by the Law Commission. Now, having regard to the other aspects of the justice system which are currently under review and following appropriate consultation, we will proceed to determine what other aspects need to be taken up. Yours sincerely Owen Woodhouse President The Right Honourable Geoffrey Palmer MP Deputy Prime Minister and Minister of Justice 10 TERMS OF REFERENCE PURPOSE OF REFERENCE 1 To determine the most desirable structure of the judicial system of New Zealand in the event that the Judicial Committee of the Privy Council ceases to be the final appellate tribunal for New Zealand. 2 In any event, to ascertain what changes, if any, are necessary or desirable in the composition, jurisdiction and operation of the various courts in order to facilitate further the prompt and efficient despatch of their criminal, civil and other business. 3 Similarly, to ascertain what further changes, if any, are desirable to ensure the ready access of the people of New Zealand to the courts to determine their rights and resolve their grievances. REFERENCE With those purposes in mind you are asked to review the structure of the judicial system of New Zealand, including the composition, jurisdiction and operation of the various courts, having regard among other matters to any changes in law and practice consequent upon the recommendations of the Royal Commission on the Courts, and to make recommendations accordingly. 11 PRINCIPAL RECOMMENDATIONS THE OVERALL STRUCTURE 1 There should be 3 courts of general jurisdiction - the District Court (including the Family Court) of New Zealand; the High Court of New Zealand; and the Supreme Court of New Zealand. 2 The District Court and the High Court should continue to be courts of original jurisdiction. That jurisdiction should be divided between the 2 Courts according to its complexity and its importance to the litigants and the public. 3 Each Court should continue to have areas of exclusive jurisdiction. So (to mention just 3 examples), the District Court (in appropriate cases consisting of Justices of the Peace) should continue to have exclusive jurisdiction over minor offences, the Family Court should have exclusive jurisdiction over certain family matters, and the High Court should continue to have exclusive jurisdiction over applicants for judicial review of administrative action. 4 The District Court should have much more extensive original jurisdiction in both criminal and civil matters and as a result that Court and the High Court should have a much wider area of concurrent jurisdiction. 5 Matters which fall within the concurrent jurisdiction of the 2 Courts should be commenced in the District Court. They should be able to be removed into High Court by order of a Judge of the High Court on the grounds of their complexity or general importance or by consent of the parties. 6 Appeals from the District Court should in general be to the High Court, usually consisting of 3 Judges. 7 Appeals from the High Court should be to the Supreme Court consisting of a panel of at least 3 Judges. The Supreme Court should be the final court for New Zealand. It should also have, with its leave, original jurisdiction over appropriate cases of an exceptional kind. THE BUSINESS OF THE COURTS (CHAPTER III) 8 The criteria proposed by the Legislation Advisory Committee for the allocation of powers of decision between the executive, the courts and tribunals in its Report on Administrative Tribunals (Report No 3, February 1989) should be adopted and applied (paras 136-137). 12 9 The development of appropriate structures of dispute settlement (including arbitration and mediation) should be supported by initial financial and other measures (paras 142-144).
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