Chapter 10
The Commercial List and specialisation in the High Court


10.1The Commission’s terms of reference included an examination of what, if anything, should be done about the existing Commercial List in the High Court,137  and what, if anything, should replace it.
10.2As we noted in Issues Paper 29, this issue is a subset of a matter of much greater controversy, which has sparked what, at times, has been a sharp debate in New Zealand over the last decade or so: how far, if at all, should some form of judicial specialisation be effected in the High Court of New Zealand?138

The historical position

10.3Given the character of the concerns expressed by the Senior Courts’ judges to the Commission, it is appropriate to first note how the High Court came about, and certain features of its current jurisdiction.

10.4The Supreme Court (as it then was) was established in December 1841. It was one of the most significant institutions of the new colony of New Zealand. The Court was given the combined jurisdiction of the common law and equity courts in England, as well as testamentary, lunacy, vice-admiralty and criminal jurisdiction.139
10.5Thus, right from the outset, what is now the New Zealand High Court operated on a different basis from the English higher courts, divided as they were into separate jurisdictions, particularly those of common law and equity.140

10.6Included in this broad jurisdiction – rightly entitling the High Court to be described as a court of general jurisdiction – were the prerogative writs and the critically important function of judicial review of the lawfulness of government actions. It is for this reason that the High Court is rightly described as being a court with constitutional responsibility. And it is for this reason that, whilst still retaining the ability to resort to the common law, it is this court which exercises the modern “remedy” of judicial review under the Judicature Amendment Act 1972.

10.7The jurisdiction of the High Court has not fundamentally changed in the 171 years since the 1841 Ordinance. The historic jurisdiction has been rolled forward and added to from time to time by legislation giving it jurisdiction in subject areas which have come into existence since that time.

10.8The Court has sat throughout New Zealand, as and when required, although its size and caseload have increased dramatically. The first volume of the New Zealand Law Reports, which was published in 1883, lists only the Chief Justice and four Supreme Court (as it then was) judges. Today there are at least 36.141  The Court sits throughout the country. All High Court judges have all the jurisdiction of that Court, and, by the close of their judicial career, many will have sat on cases in a good number of the registries around New Zealand.

10.9The only historical incursions by way of specialisation into this regime (and then by management regimes) were the creation of the Administrative Division (now defunct) and the Commercial List (to which we have already referred).

10.10In England and Wales, by contrast, the High Court is split into three divisions: Queen’s Bench; Chancery; and Family. Judges are appointed to one of those divisions.142  The divisions of the High Court are not separate courts, but have somewhat separate procedure and practices adapted to their particular purposes. Although certain kinds of cases will be assigned to each division, depending on their subject matter, each division can, and does, exercise the entire jurisdiction of the High Court. However, commencing proceedings in the wrong division may have adverse consequences in such things as costs.

10.11Within those formal divisions there are specialised courts. For present purposes it is necessary only to note that the specialised courts of the Queen’s Bench Division include: the Technology and Construction Court; the Commercial Court; the Admiralty Court; and the Administrative Court. The Chancery Division has equity jurisdiction and also specialist courts in the Patent’s Court and the Companies Court, which deal with intellectual property and company law matters respectively. Chancery also handles tax appeals.

10.12Due to the current debate in New Zealand over the possibilities of a Commercial Court, it is worth noting here that the business of the Commercial Court in London is defined by the Civil Procedures Rules as:143
…any claim arising out of the transactions of trade and commerce and includes any claim relating to–
(a) a business document or contract;
(b) the export or import of goods;
(c) the carriage of goods by land, sea, air or pipeline;
(d) the exploitation of oil and gas reserves or other natural resources;
(e) insurance and reinsurance;
(f) banking and financial services;
(g) the operation of markets and exchanges;
(h) the purchase and sale of commodities;
(i) the construction of ships;
(j) business agency; and
(k) arbitration.
10.13Because of the important supervisory role of the New Zealand High Court, it should be noted that it is the Court of Queen’s Bench in England which has special responsibility as a supervisory court of lower courts, tribunals and governmental authority through the Administrative Court, although that remedy is complicated by the now existence of the Upper Tribunal.144  Today judges from the Chancery Division and the Family Division of the High Court are from time to time assigned to sit in it, as well as the Queen’s Bench judges.

10.14Why has this divergence in structure developed in New Zealand and England and Wales? First, there is the historical reason already adverted to. For much of the first hundred years or so of the fledgling colony of New Zealand there simply was not the work available to have occasioned any such approach. As late as the outbreak of World War II there was still only the Chief Justice and eight Supreme Court Judges (as they were then) in New Zealand. They also sat on the Court of Appeal as and when required. The permanent Court of Appeal was not formed until 1957.

10.15In England on the other hand, the volume of work and what was perceived to be the need for, and advantages of, specialisation led the legal system there in a different direction.

10.16The essence of the present debate in New Zealand is whether circumstances have changed to such an extent that some form of High Court specialisation is now required. Before we turn to that issue, however, there is a constitutional question we must address.

A constitutional point

10.17At one time, it appeared to be suggested to us that the existing “shape” of the High Court cannot, or should not, be altered for constitutional reasons. In case that argument should continue to be presented, the Commission would make these points.

10.18First, this Report does not in any way recommend the diminution of the jurisdiction of the High Court. On the contrary, we recommend – as is the customary drafting practice both in this country and the United Kingdom – that the existing jurisdiction of the High Court be “continued” under new legislation. If a thesis of the unitary and indissoluble powers for the High Court (or the old Supreme Court of Judicature) was constitutionally sound, then it would necessarily have prevented the developments which have taken place in England and Wales and many other Commonwealth jurisdictions. The real issue is therefore how that jurisdiction is to be exercised, or given effect to.

10.19Secondly, in New Zealand there is not currently, and never has been so far as we are aware, any suggestion that the judicial review power allocated to the High Court of New Zealand can or should be exercisable in any other court. At least implicit in the concern of the Senior Courts’ judges is a concern that their “constitutional” role not be eroded, or trenched upon. Without meaning any disrespect, it is difficult to envisage any administration in New Zealand giving “judicial review power” to the District Court.

10.20Thirdly, it cannot be the case that the jurisdiction of the High Court of New Zealand must remain in its original form: that of a generalist court exercising jurisdiction throughout New Zealand, in all matters, in all places. The short answer to any such proposition is that the circumstances that the country faces may change, such that some better and more appropriate arrangements are needed now or in the foreseeable future.

10.21It follows that the essential questions are: what is the case for change at this time; and if such a case is made out, what form should it take?

137Judicature Act 1908, ssĀ 24A to 24G.
138Law Commission Review of the Judicature Act 1908: Towards a consolidated Courts Act (NZLC IP29, 2012) at [7.21]-[7.28].
139Ordinance 1, Session 2, 1841. That ordinance was disallowed by the Colonial Office. It was replaced with an amended and amplified version in 1844. The creation of a court with such all-encompassing jurisdiction was routine in the Australian colonies. Much of the ordinance setting up the Supreme Court appears to have been drawn from the Supreme Court Act 1837 (SA).
140See generally JL Robson (ed) New Zealand: The Development of its Law and Constitution (2nd ed, Stevens, London, 1967) at 86-92 and 154-176.
141The calculation depends on how one includes retirements, acting judges, and so on.
142Senior Courts Act 1981. The senior courts of England and Wales were originally created by the Judicature Act as “the Supreme Court of Judicature”. It was renamed the “Supreme Court of England and Wales” in 1981, and again the “Senior Courts of England and Wales” by the Constitutional Reform Act 2005. The Senior Courts of England consist of the Court of Appeal, the High Court of Justice, and the Crown Court.
143Civil Procedure Rules (UK), r 58.2(2).
144See Henry Woolf and others (eds) De Smith’s Judicial Review (6th ed, Sweet & Maxwell, United Kingdom, 2007) at [15-093]-[15-099] and chapter 16.