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.
10.6Included 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.
10.9The 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).
10.11Within 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.
10.14Why 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.
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?