Judicial specialisation in the High Court – what the Law Commission has to say

In its review of the Judicature Act 1908 the Law Commission was required to review the role of the Commercial List.  As the number of cases filed on the List is inconsequential - there were only 16 in 2010 - it is not surprising that the Commission has recommended that it should be disbanded.  It recommends instead that “it would be possible to design a panel system …  All High Court Judges would have general jurisdiction, but a Judge would either opt in or be allocated to, one of several panels.  One of those panels could be a Commercial List in the sense that those Judges would both manage and decide commercial cases.”  [7.55]

In other words, the Commercial List would go, and its work would be taken over by a panel of judges who would presumably do a broader range of work than is currently undertaken by the existing List Judges.

The Commission did not attempt to identify all of the panels that might be created.  It referred to the arrangements which exist in the Supreme Court in NSW, Victoria and Queensland and in the Federal Court of Australia.  All of these Courts have specialist divisions of one sort or another.

The Commission’s recommendation about judicial specialisation comes with a serious rider.  It says that High Court Judges have “strongly divergent views … on this issue” and that “any proposal for change would need the support of the judiciary.” 

So far as I am aware, High Court judges have been seriously divided on this subject for decades and it is hard to see how the “strongly divergent views” of the judges will congeal into unanimity when some judges are to be excluded from panels on which they would like to sit.

However, the Commission says it should be possible to design a panel system “that would not disrupt the collegiate structure that underpins the higher courts.”  [7.55]  This appears to be a way of saying that a panel system can be devised that would get “the support of the judiciary.”

In our constitution the Government is responsible for the structure of the courts, not the Judges.  The Attorney-General, Mr Finlayson, made this clear in the statement that he gave to NZ Lawyer which was published on 4 November 2011.  In his words, “change is not dependent on the co-operation of the judiciary”.  (It is to Mr Finlayson’s credit that he was willing to put a stake in the ground on this topic.  His Shadow in the Labour Party, Mr Parker, said nothing.)

Judicial specialisation is a subject whose time came many decades ago.  In the three Death Spiral articles that I wrote for NZ Lawyer last year I referred to the tiny number of civil trials that have been taking place in the country.  Judicial hesitancy ought not to be allowed to frustrate the changes that are both sensible and necessary for the good of our legal system.  Other countries have had specialist structures of one sort or another for a century or more, and they continue to refine them and fine-tune them, as the need arises. 

Countries much smaller than us, understand this.  So, for example, the Cayman Islands introduced a specialised court division to handle financial disputes in 2009 – the Financial Services Division.  Within two years, 349 cases had been either issued in that Division or been transferred to it.  The Division has a suite of modern courtrooms, judges’ chambers and party conference rooms with up-to- date technology mirroring the technology of other off-shore jurisdictions.  This enables participants to make use of Livenote (or similar software systems) and video conferencing facilities.  Numerous procedural changes have been implemented to assist the swift and successful functioning of the court.

If the Caymans can do things like this, why can’t we?

The Law Commission is to be commended for its proposal that there should be specialist panels.  Panels may or may not be the best way to provide specialist expertise but they would at least be a start.  The existence of panels will overcome the problem of having a lone-wolf specialist judge who might highjack the law and take it down an unwanted path.  One of the panels should focus on crime.  Others can be created for, among other areas of the law, resource management, tax, equity, and intellectual property. 

I hope that in his second term in office as Attorney-General, Mr Finlayson will, with the co-operation of Justice Winkelmann’s Committee, be able to find time to steer a panel system into effect.

For those of you who share this hope, please send a short email to the Law Commission (at This email address is being protected from spambots. You need JavaScript enabled to view it.) and say:

“In answer to question 20(e) - I favour the replacement of the Commercial Court with a panel system.

“In answer to question 21(a) - if a panel system is adopted I favour the creation of panels that would be focussed on crime, RMA work, employment law, equity, intellectual property [and any others that you favour].

“In answer to question 21(b) – I do not mind if the panel system is created by legislation or achieved administratively, and favour whichever of the two processes can be implemented first.”

Please do this.  Apathy is the enemy of change.  And this change is long overdue.

For information about Anthony Grant, see www.anthonygrant.com