Dialogue: Final court to reign supreme

In the last of three columns on whether the right of appeal to the Privy Council should be abolished, TED THOMAS* offers an alternative vision for New Zealand's court of last resort.

For over two decades the real obstacle to the abolition of the right of appeal to the Privy Council has been disagreement about the structure required to be put in its place. It is that aspect that I examine in this final column.

For too long the debate was side-tracked by a proposal that all that is required is to abolish the right of appeal to the Privy Council and make the existing Court of Appeal the final appellate court. There would then be one right of appeal from decisions of the High Court.

This proposal has been rightly debunked. Legal issues refine as they proceed through an appellate process. A more mature legal system and greater public confidence in that system then result. And the one final court cannot operate satisfactorily as both an intermediate court of appeal and a final court of appeal - effectively the lot of the present Court of Appeal for a number of years.

The Attorney-General deserves considerable credit for the wide-ranging consultation that has been undertaken. The key issues are now more focused. Indeed, once a balance is struck between the extremes of what is desirable and what is affordable, the format for the new structure falls into place.

A new final appellate court needs to be established to replace the Privy Council and hear appeals from an intermediate court of appeal. The final court of appeal could be called the Supreme Court, or whatever. The name does not matter.

On the basis of my experience, the new final court should consist of five judges only. The court should sit as a court of five. Any absences would be met by temporary appointments from the intermediate court of appeal.

A constant number of judges on the final court of appeal is the most effective means of ensuring consistency in the law. Predicting the outcome of prospective litigation is greatly facilitated when the composition of an appellate court is known in advance.

The Chief Justice would lead the new final court of appeal. With the High Court becoming the third court in the judicial hierarchy, it would be unacceptable for the country's senior judicial officer not to head the final court.

Appeals from the intermediate court of appeal to the final court would be heard by leave only. A leave requirement is commonplace in overseas jurisdictions and is essential to ensure that the judges have the time to reflect on the issues involved in the most important cases affecting the community. It can be expected that leave would be granted in about 80 to 100 appeals a year.

Appointments to the new final court should be made in part from the present members of the Court of Appeal and in part from new appointments. The danger of appointing the existing members in toto is that a judicial culture geared to the efficiency required to determine over 550 appeals a year will be perpetuated in the new final court of appeal. A clean break is required. Moreover, as I have said before, no criterion is more important for appointment to a final court of appeal than intelligence. And there is in the New Zealand legal community a wealth of intelligence that should be tapped for the top judicial jobs.

Other than in rare and special cases, all appeals from the High Court would initially be heard in the reconstituted intermediate court of appeal. This intermediate appellate court would therefore need to hear the 550 or so appeals at present dealt with by the existing Court of Appeal.

Suggestions that the intermediate court should be managed from the Court of Appeal should be ditched. The intermediate appellate court must be independent of the final court of appeal. The charge that this country is too small to provide a fully objective Judiciary necessitates this separation.

The intermediate court would sit as a court of three. The court could have a core permanent membership of, say, three members and be otherwise manned by selected High Court judges sitting on a roster basis. Involvement of High Court judges is imperative to maintain the standing of that court. The High Court remains the court seized of the Judiciary's most important original jurisdiction to review the legality of governmental action. Maintaining the integrity of its function is essential to the rule of law.

Having High Court judges sit on the intermediate court of appeal does mean that judges in that court will sit on appeals against decisions given by their colleagues. This is not ideal. But it happens at present with the Criminal and Civil Appeal Divisions of the Court of Appeal and has not resulted in any apparent partiality. What is vital is to have the final court of appeal separate from the intermediate court of appeal.

The intermediate court of appeal should sit in Auckland as well as Wellington and, when business warrants, in Christchurch. This geographical dispersal is required for the convenience of the public in obtaining access to a court hearing 550 or more appeals a year.

Although not part of the present reference, the jurisdiction of the District Court will need to be reviewed and enlarged as a consequence.

One final point. Unless the demands of lobby groups are so strong as to be politically irresistible, overseas judges should not be appointed to sit on the final court of appeal, as is the case in Hong Kong. I have not encountered one argument in support of this suggestion that cannot be speedily dispatched. It demonstrates a lack of understanding of the judicial process and smacks of "colonial cringe". Proponents usually have a particular judge or judges in mind as the kind of judge who would be appointed! But the influence on the court of a law lord such as, say, Lord Steyn, will be quite different from the influence of a law lord such as, say, Lord Hoffman. And, in any event, judges of that calibre will not be available. Moreover, the influence of a single judge may be unacceptably dominant or it may be negligible. Better to settle for a known court of constant and indigenous composition.

Also, why retard the development of a jurisprudence appropriate to New Zealand? Lord Bingham has recently observed that the common law does not flow in a broad channel, like the Nile, but in a mass of small channels, like the Nile Delta. He notes that it has developed its own distinctive character in the United States. The diminished role of the Privy Council, he then states, has given a similar freedom to the courts of Australia, Canada, India and elsewhere to develop principles of their own.

As a mature and independent nation, New Zealand must join these nations. It can do so with the adoption of an affordable structure along the above lines.

* Ted Thomas, QC, recently retired as a judge of the Court of Appeal.