Dialogue: Imported judges can't replace London's skills

By MICHAEL BARNETT

I have followed with interest the articles in the Business Herald this week by Stephen Franks, Colin Keating and former Court of Appeal judge Ted Thomas. Nothing in them has persuaded me that from a business perspective it would be desirable to abolish Privy Council appeals.

As Mr Franks said, the Privy Council's decisions are robust, succinct and carefully reasoned and the right to appeal to dispassionate and expert judges outside the somewhat hot-house environment of New Zealand is extremely valuable.

The service is provided free. I find rather strange the suggestion that we are somehow bludging on the English taxpayer by accepting this service. So long as the United Kingdom is willing to provide it, there is no reason not to use it.

The Attorney-General's proposal would mean the creation of a new Supreme Court to be partially overseen by visiting overseas judges. This proposal acknowledges the difficulties of providing adequately qualified legal resources from our own small population.

But having overseas judges as part of the new court would have to be one of the strangest ideas in the long debate about the appeals.

First, like the Privy Council, it necessarily involves a foreign element in the New Zealand judicial system. One of the abolitionists' main arguments was the insult to our sovereignty from judges in Britain deciding New Zealand appeals.

Mr Thomas acknowledges that high-calibre overseas judges would not be available. We are likely to get retired second-raters from various parts of the Commonwealth. On this one point I am in agreement with Mr Thomas. Surely we go it alone or stay with the present system.

Many of Mr Thomas' arguments are contradictory. First, he suggests that only large corporations or wealthy individuals can afford to appeal to their Lordships in London. This is demonstrably untrue as several cases have been successfully taken to the Privy Council by small businesses and ordinary individuals.

Yet he proposes that the right to appeal to the New Zealand Supreme Court would be available only by leave of that court.

Thus, we would see a change from the present system, where any case involving over $5000 may proceed to the Privy Council as of right, to one where whether there would be an appeal would depend upon the discretion of the new Supreme Court.

Second, he asserts that the unsuccessful party in the Privy Council would almost certainly be required to pay all of the other party's costs and expenses. This is not correct.

The losing party is required to pay only a reasonable proportion of the winning party's costs. This is broadly the same rule that operates in New Zealand courts.

Third, Mr Thomas points to one controversial Privy Council case to show that the council's approach is uncommercial and legalistic. One swallow does not make a summer and one must take into account the many instances where the Privy Council has played a valuable role by reversing plainly erroneous or unfair Court of Appeal decisions.

In Valentines Properties v Huntco Corporation, a commercially realistic contractual interpretation was given, reversing the High Court and Court of Appeal decisions.

In Harley v McDonald, an unfair and unjust imposition of costs on a barrister who had evidently irritated the High Court judge was set aside, again reversing decisions by the High Court and the Court of Appeal.

The key question is whether the commercial and legal expertise of the Privy Council and the independence and intellectual rigour with which the Law Lords approach cases can be replicated in a New Zealand court.

I do not believe it can, and the fact that the proposed Supreme Court of New Zealand would apparently need to be supplemented by overseas judges underscores that.

Moreover, resort to an overseas court such as the Privy Council is not an indication of national immaturity or dependence. It is surely a sign of inner self-confidence that a country is prepared to allow overseas judges to review its judicial work.

This is the case with the United Kingdom in relation to the European Court of Justice. No one says that the United Kingdom is somehow an inferior power.

The burden on those proposing change is to demonstrate that the change will bring overall improvement. The proponents of change have not done this.

* Michael Barnett is chief executive of the Auckland Chamber of Commerce.