New Zealand Law Society - The court system grinds on slowly…

The court system grinds on slowly…

The court system grinds on slowly…

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As a retired barrister (with over 20 years at the Sydney Bar as well) I find myself constantly coming to the conclusion that our court system is grinding along exceedingly slow. In my early days chasing around the courts of Christchurch, plus Wellington and other South Island centres, I recall little in the way of delays. Now this may be the unreliable memory of the ancient, or the rise in the current population numbers, but I don’t think it is.

In the South Island the current delay after a plea to a jury trial is over 18 months. (I need not spell out the possible imprisonment in the interim, without compensation if the accused is later acquitted, or the effect of this waiting on him and his family if he has bail). In the civil courts the waiting for justice is immeasurably worse, due to the idiotic pre-loading system imposed by the Ministry of Justice. The preparation of witness statements (and what hope with them of effective cross-examination?), the lists of authorities, and the endless conferences – claimed to be for pleading purposes, or trial planning, or just “judicial conferences” (a secret code for bringing the parties together in the hope that some settlement might emerge) – all these drag the delay on and on, to the huge cost of the parties. A friend of mine tells me he recently ran a two-day hearing, in which a list of 6,000 authorities had been filed, but none referred to. This is of course the gift of the computer, which throws up so many authorities that the uncertain counsel feels he had better include them all.

Another friend, a High Court Judge, tells me that his court does almost nothing but criminal cases. As a result, civil cases are almost always resolved by the grudging form of mediation – frequently mediated by retired Judges, whose fees can be up to $15,000 daily (to my certain knowledge). I used to do a reasonable amount of mediation in New South Wales – an exercise about as difficult as clearing one’s throat. And one very important aspect of our Westminster system is being damaged – the importance of precedent in resolving legal differences. (I am not pushing back to last century’s restrictive reliance on precedent, but its accepted use as a basis for today’s measured decisions, as encouraged by Lord Kilmuir and now largely accepted). But where are our current reported decisions – a number, of course, but how many spirited away by the immense legal fees of today and the understandable lack of nerve of the parties to face that risk and the constant, built-in delay which the Ministry of Justice has brought about?

I cannot remove from my mind this battalion of civil servants, sitting comfortably in their offices, largely ignorant of the trial process, and bringing forth more and more amendments to the Crimes Act – early pleas/lower sentences, fewer expensive jury sittings, not enough judges, and finally the appalling pre-loading civil system which I have attempted to describe above. As a member of a university committee which enquires into unsafe convictions in our courts, I have not seen many examples of clear injustice, but far too many involving unfairness, rushed procedures, poor advocacy and a general lack of balance. I am in fact driven to the view that barristers in New Zealand are firing beneath the standard we used to know, and civil barristers are not gaining the experience which used to be expected – they are emphatically not to be blamed, for the cause is the stupid system which sees them spending most of their careers in their chambers, not getting to court, but always, always, preparing.

May I have a final swipe at the hierarchy of the courts – and I apologise in advance for referring to the Australian system. (We are right to hate their sport, but their courts are far better). First is a Magistrate’s Court (dealing daily with petty crime and minor civil matters – magistrates mainly drawn from solicitors). Then the District Court (“The Dizzo”) which handles medium-level crime and civil cases – and from which the appeal is direct to the Court of Appeal. It hears a wide range of matters – including all personal injury claims with unlimited jurisdiction, and its Judges are virtually all experienced barristers. Then the Supreme Court (our “High”) which operates in divisions: crime, commercial, divorce, defamation, environment. From this analysis so far I think can be seen that the District Court, being freed from petty matters, works as a serious and efficient court, which is what ours would become here under such a change. Appeals finally go to the High Court (our “Supreme”) which hears appeals from all Australian states.

In setting this out, I can honestly say that I am aware of no delays in the Australian system anything like ours. But I shall keep my head down when I add that I think New Zealand was far better off with the Privy Council as our court of final appeal. I went there a few times – once with a current member of our Supreme Court as my junior – and was struck by the highly-intelligent and open-minded Law Lords. Now, they may no longer be the same, and I have no criticism of our Supreme Court, where I have never been, but it is hugely expensive to the country, and from a small bar I doubt that the intellectual standard of judges is materially different at all from the members of our Court of Appeal. In this case I think that the Ministry of Justice in recommending this change was flying above its pay grade.

But that ministry continues to keep its financial foot on our courts, and it is the citizen who pays in the long run. A country without an accessible system of justice is being short-changed, and a profession to whom the prospect of princely fees is thrown open could be mistaken if it feels everything is just fine.

John Burn is a former barrister living in Christchurch. He worked as a lawyer and then barrister sole in Christchurch from 1964 to 1980, then as a litigation partner with a Sydney firm for two years before returning to practise as a barrister in Christchurch from 1984 to 1990. From 1991 to 2013 he was a member of the New South Wales Bar in Sydney.

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