Court of Appeal 50th Anniversary

May I begin by greeting everyone in the languages of the realm of New Zealand - English, Maori, Cook Island Maori, Niuean, Tokelauan and New Zealand Sign Language.

Greetings, Kia Ora, Kia Orana, Fakalofa Lahi Atu, Taloha Ni and as it is the evening (Sign).

May I specifically greet you: Rt Hon Dame Sian Elias, Chief Justice, and fellow Judges of the Supreme Court; Hon Justice William Young, President of the Court of Appeal and fellow Judges of the Court of Appeal; Former Judges of the Court of Appeal; Distinguished Guests otherwise; Ladies and Gentlemen.

It is with pleasure that my wife Susan and I welcome you to this dinner at Government House this evening. Tonight we celebrate the New Zealand Court of Appeal's 50^th anniversary.  The Court was established by the Judicature Amendment Act passed in September 1957 and the court held its inaugural sitting on 17 February 1958, with Sir Kenneth Gresson as President and two other members, Justices North and Cleary. But while it became a permanent court on that date, in reality its antecedents went back to 1862 when, using a rotation system of judges of the then Supreme Court, a first Court of Appeal was established.

Interestingly, one of the reasons that that court was established 146 years ago—namely the inconvenience and expense of taking appeals to all the way to the Privy Council—was one of the reasons that saw the Supreme Court established as New Zealand's final court of appeal in 2004.

Along with Dame Sian as Chief Justice, the other four inaugural judges of the Supreme Court were before that sitting judges of the Court of Appeal and so it is fitting that the membership of the Supreme Court is also represented here tonight.

In its modern guise, the Court of Appeal has played a key role in some of the controversial issues of our time.  It has fearlessly applied the legal principles to the issues it faced without fear or favour, either from the Executive, Parliament or public opinion.  From its earliest days, the Court showed a determination to create a body of law that was not only characterised by practical and human justice but which also reflected New Zealand conditions.

Only a few years after its establishment, in the famous case of Corbett v Social Security Commission heard in 1961 with judgment in 1962, the Court held it didn't have to be bound by precedents of the House of Lords.  The case, as all here will recall, concerned a request by George Barton QC, on behalf of Enid and Dr Ted Corbett, for discovery of documents regarding the Commission's discretionary decision not to award Mrs Corbett a family benefit in respect of two children while she and her husband had been overseas.

The Minister, Hon Mabel Howard, had instructed the Commission not to produce the documents and the President of the Court, Sir Kenneth Gresson, felt obliged to follow English precedent that the Courts did not have the power to over-rule a Minister's objection. 

Justices North and Cleary disagreed.  As Professor Peter Spiller says in his history of the Court, their judgments:  "were significant in recognising that there was a limit to the binding force of House of Lords' decisions in New Zealand courts.  North's judgment in particular provided a landmark statement of a New Zealand legal identity distinct from that of England and a shift from the deferential and Anglophile approach that had hitherto characterised Court of Appeal judgments.  [Their] judgments also suggested a disinclination to credit absolute rules of precedent that might perpetuate erroneous decisions preventing practical justice from being done."

The case was not only significant in signalling a departure from English precedent, but also in reaffirming the constitutional balance of power between the executive and judiciary. 

In several cases that followed, such as Jorgensen v News Media (Auckland) Ltd 1969 and Bognuda v Upton & Shearer Ltd 1971 the Court continued to develop a distinct New Zealand legal identity and body of law that valued fairness, justice and practicality over slavish adherence to English precedent.

As is its right within our Westminster system where Parliament is supreme, the Executive, when it has disagreed with the Court's decision, has sought and gained Parliamentary approval to pass legislation to overrule its decision. 

But in many cases, the Court has forced major changes in public policy.  In this regard, I refer, for example, to the Court's 1994 ruling in Simpson v the Attorney-General, better known as Baigent's case, which removed the Crown's protection from civil liability in cases where a right under the Bill of Rights had been infringed.  And I note that four of the five members of the bench that considered that case are here tonight—Rt Hon Sir Maurice Casey, my predecessor, Rt Hon Sir Michael Hardie Boys, Rt Hon Sir Ian McKay and Rt Hon Justice Gault.  It is also pleasing that Lady Cooke and Hon Francis Cooke, QC, are here, it can be said, "representing" the late Lord Cooke of Thorndon, who was the President when that momentous decision was delivered.

In this case and others—such as Noort v Ministry of Transport 1992 that affirmed the right of everyone, including alleged drink drivers, to legal counsel—the Court has ensured that the Bill of Rights is more than words on paper, but a living charter of fundamental civil rights.

The final case I mention, and which seems particularly pertinent given the passage of Waitangi Day last week, was the Court's 1987 decision in the New Zealand Maori Council v Attorney-General.  Along with the establishment of the Waitangi Tribunal in 1975 and the extension of its jurisdiction a decade later, the Court's unanimous decision was a watershed in New Zealand's long overdue debate about the role and place of the Treaty of Waitangi in our national life. 

Since 1877, the New Zealand courts, following Chief Justice Prendergast's ruling in Wi Parata v Bishop of Wellington, had treated the Treaty famously as a simple nullity.  Justice Baragwanath who, along with Dame Sian, was counsel for the Maori Council, has compared the significance of the case to Lord Mansfield's 1772 decision that outlawed slavery in England and the United States Supreme Court's 1954 decision outlawing so-called "separate but equal treatment" in Brown v Board of Education.  As Justice Baragwanath has said in a recent symposium speech (and I quote him):

"The Maori people were shown that the Court can and will recognise their dignity and distinctiveness and thereby do justice; that the Treaty promise that they should enjoy the rights of British subjects under the rule of law is not a meaningless formula imposed by a colonial power in the knowledge that it would be ignored, but a commitment that will be given practical effect by our highest institutions; that Maori have the same right as others to the protection of the law. And by doing so the New Zealand courts showed that they had come of age."

In conclusion, the Court of Appeal, having reached its 50^th or golden anniversary, has come of age.  Suggestions that with the creation of the Supreme Court, that the Court of Appeal's role would be diminished, have not been borne out.

I believe it can be said that the Court of Appeal retains a critical role in developing legal principle, as well as in maintaining consistency in the application of the law in the courts below.  The themes to which I have referred about maintaining a New Zealand legal identity are, I am pleased to record, borne out by a reading of a Court of Appeal case in the last published part of the New Zealand Law Reports.  That is in Volume 1, NZLR 2008 where, in a case called Z v Complaints Assessment Committee, the presiding judges were Justices France, Glazebrook and Chambers who are present here this evening and the matter of a New Zealand approach to professional oversight bodies has been preserved.

Additionally, despite the advent of the Supreme Court, there seems to have been no reduction in the workload of the Court of Appeal.  As the Law Commission noted in 2004:

"The establishment of the Supreme Court was not intended to supplant the role of the Court of Appeal. A strong, intermediate appellate court at this level is essential for the health of the court system. In practical terms, the Court of Appeal will continue to be New Zealand's principal appellate court, and for most litigated cases it will in effect be the final appellate court."

And on that note of anticipation, I will close in Maori by offering greetings and wishing you good health and fortitude in your endeavours. No reira, tena koutou, tena koutou, kia ora, kia kaha, tena koutou katoa.