Courts - Is the High Court’s Civil Jurisdiction in “a Death Spiral” (Part 2)?
One of the Judges at the Bar Association’s Conference last August reported that he had been discussing with some people whether the High Court’s civil jurisdiction was in “a death spiral”.
One way to answer this question is to consider the number of civil trials that take place each year in the High Court.
I recently made a request for this information under the Official Information Act and have been informed that for the period January to October 2010 “The number of … defended civil hearings for general civil proceedings and originating applications” was 248.
If you exclude the month of January (since most High Court Judges don’t sit then) there were 27.5 defended civil hearings for general civil proceedings for each of the months February to October 2010.
That is a little more than one case a day for the whole of New Zealand !
If the statistics for the 10 months are annualised, they produce about 303 defended general civil proceedings and originating applications for the entire year.
These figures are a little worse than for the previous years – but not a lot. The figures for 2007, 2008 and 2009 were 374, 433 and 434 respectively.
Before I comment on the figures I should state that they do not refer to the number of proceedings that were filed each year. Nor to the number of cases that were settled.
What then do the statistics show ?
For a start, they show that there was hardly any defended civil trial work in most of the 18 Court centres. These are the numbers.
Gisborne - none.
Timaru – 1.
Nelson -2.
New Plymouth – 2.
Masterton – 2.
Blenheim – 3.
Invercargill – 3.
Wanganui – 3.
Napier – 5.
Palmerston North – 6.
Whangarei – 7.
Dunedin – 8.
Rotorua – 9.
Hamilton- 11.
Tauranga – 11.
As for the other three centres, Christchurch had only 30 defended hearings in 10 months. Wellington was similar at 33. And Auckland had 112.
What are some of the consequences of this?
First, there are currently 36 Judges in the High Court. 303 defended civil trials a year amounts to 8.4 cases per judge – substantially less than one civil trial a month for each Judge. If the system stays as it is, there isn’t a sufficient volume of work for each Judge to acquire a specialist expertise in any area of the civil law.
Second, there are too few civil trials for the many advocates who are qualified to practice in the High Court for them to be able to acquire and maintain the advocacy skills that are needed for the creation of a credible system of civil justice. The trend for senior Australian counsel to be brought across to New Zealand for the bigger trials is likely to continue since the greater volume of work there enables Australian counsel to acquire the advocacy and specialist law skills that are needed for such work.
Third, the Government’s desire to make New Zealand an international financial centre will struggle to succeed if our Courts are not perceived to be up to the task. The international commercial community may consider that our Courts do not have the breadth of experience that is necessary for the kind of business that is proposed to be created.
Fourth the Courts are not being given the opportunity to develop our laws so that they keep up with the times. As an illustration of this I understand that Justice Hammond reported to a legal conference in Sydney in December that in his time on the Court of Appeal (7 years) he sat on only 6 cases dealing with one of the most important of our laws - the law of contract. If so few cases arose in the law of contract, how much less attention was the Court of Appeal able to give to the many less commonly applied laws ?
Fifth, our judges are being drawn from a pool of candidates who have less experience in the workings of the Court than has commonly been regarded as desirable. When I practised at the Bar in England, nearly all decisions in both the High Court and Court of Appeal were given extemporaneously. Counsel who were appointed Judges knew this and were trained in the art of giving oral judgments – even in very complicated cases. By contrast, in both the High Court and Court of Appeal here, most judgments are reserved, and many are reserved for lengthy periods. The adage, “Justice delayed is justice denied” applies not just to delays in getting to Court but also to delays in the delivery of judgments.
Readers of my columns will know that I have been a keen advocate of judicial specialisation. Do these statistics dampen my enthusiasm for it?
Not at all. I think they strengthen the arguments for it and in the next edition of NZ Lawyer I will say why.