Contents

Chapter 10
The Commercial List and specialisation in the High Court

Submissions

The views of the judges

10.22We next summarise the views advanced by the judges in the collective submission signed off by the Senior Courts’ Heads of Bench, and in some cases individually, as follows.

10.23First, it is said that judging in itself is a specialised form of legal practice in which the judge properly looks to counsel for the specialist subject-matter arguments. And the point is made: “There does not seem to be any evidence that appeals from generalist judges are more likely to be overturned on appeal, or that there are real efficiency gains to be made by specialisation.”

10.24Secondly, in accepting a High Court warrant, a judge necessarily “gives up” a career where that person will have some real standing, and in most cases a better financial return than that provided to the judiciary. It is undoubtedly correct that in accepting a judicial appointment a High Court judge is undertaking a large element of public service, particularly when the necessary restrictions on lifestyle are also taken into account. Part of the attraction of the judicial role is the wider spectrum of work available to that person, and the intrinsic intellectual interest and practical implications which this holds. If that is so – and we think it is – this might have implications for judicial recruitment. We are satisfied that recruitment has been a problem in the High Court, particularly in relation to senior members of the Bar. Of course, this issue can be a double-edged sword: some counsel might prefer to be able to specialise more in the High Court.

10.25Thirdly, it is said that the claim that “cases more properly belonging in the High Court are being diverted to arbitration…is not borne out by the evidence so far assembled…”. We think a fair reading of the judges’ submissions is that the evidence for specialist panels other than commercial work is, at least at present, not made out either.

10.26Fourthly, the practical management and personnel difficulties even with panels (let alone divisions) being raised is pointed to. Are judges to be directed to panels, or are judges in effect to “volunteer”?

10.27In terms of actual solutions, the Senior Courts’ judges’ submission states:

Division of the jurisdiction of the High Court among judges according to specialised groupings is a major change which carries risks to the legal order.

Fragmentation of the jurisdiction of the High Court risks undermining its ability to fulfil … the application of the general principles of the common law … increasing the burden on the Appellate Courts and impoverishing the development and application of the common law, the principles of which are not confined by the classifications of law that it is for some purposes useful to adopt.

A panel system according to such classifications risks the real strength in a common law system of a Superior Court of general jurisdiction [which is] able to keep the whole under review in application of principles of general application.

10.28If, however, the Commission were to recommend some degree of formal partition and that it be legislatively imposed, the Senior Courts’ judges “consider that an incremental approach first building on the Commercial List, as the Issues Paper suggests, is preferable before further specialisation is attempted.”

The New Zealand Bar Association

10.29In its detailed and careful submission, the New Zealand Bar Association included a survey of the Bar on the issue of judicial specialisation. Eighty-four per cent of members questioned indicated that they support judicial specialisation in some form. In the submission of the Bar Association: “this shows overwhelming support for judicial specialisation from members of the Bar”.

10.30The submission further notes:

Specialisation in one form or another is a reality in the modern practice of law and has been for some time now. It is an issue of relevance, not just for legal practitioners and their clients, but also to the judiciary.

10.31The Bar Association supported the Commission’s provisional view that its review of the Commercial List provisions in the Judicature Act 1908 should involve a consideration of specialisation in the High Court judiciary more generally.

10.32The Bar Association suggested there are two broad categories of commercial cases. The first involves commercial disputes where the parties can choose how those disputes can be determined. The second category of cases is “involuntary” commercial cases where the court system must be used. For example, various insolvency matters, or proceedings required by statute, such as under the Commerce Act 1986.

10.33It noted that, in both categories, specialisation can materially contribute:

to confidence in the administration of justice, and as a consequence the optimum working and reputation of the New Zealand markets, including to attract and retain investment, and the confidence of those participating in those markets.

10.34The Bar Association then usefully summarised the position in other jurisdictions and noted that:

Many of the countries that are actually embracing specialisation are relatively small, and that on the international experience size alone is not a significant inhibiting factor.

10.35The Bar Association pointed to the Australian Law Reform Commission Report on the Australian justice system,145  noting that one of the more successful developments in Australia in recent years was the 1997 introduction into the Federal Court of a modified individual docket system for case management, enabling judges to handle cases from initial filing through to final resolution, and the successful introduction of specialist panels in the Federal jurisdiction. The latter happened first in the larger registries of Sydney and Melbourne in areas such as intellectual property, taxation and trade practices (anti-trust/competition law, human rights, admiralty law and industrial law). That panel system was then extended to other registries.

10.36The Bar Association rightly acknowledges that the panel system in Australia is not perfect and does not have full support:

Anecdotal feedback is that some Federal Court (and other) judges see it as somewhat elitist and that it favours judges who are based in Sydney and Melbourne and those judges whom have an interest in IP and competition law. The concerns that have been raised however do not detract from what is generally seen as the overall success of the regime.

10.37It is convenient to interpolate here that, generally speaking, the Australian state systems which have panels146  have likewise attracted general support.

New Zealand Law Society

10.38The New Zealand Law Society is of the view that the Commercial List should not be retained in its present form, and that a panel system should be adopted. It submitted:

The Commercial List is less relevant than it once was, and that in large part is because of universal case management and the availability of assigned judges in appropriate cases. But the need to improve on the way in which commercial cases are managed and disposed of is undiminished. Alternative dispute resolution (ADR) is a significant reason for the decline in commercial proceedings but, in the Law Society’s opinion, so too are other factors such as delay, case management inefficiencies and an absence of wider specialisation. … We are particularly concerned about the prospect of the law not being developed and articulated as fully as it might be because of a decline in judgments in commercial cases. This is an issue that is important to the commercial community.

10.39The Law Society particularly supports “a specialist commercial panel”. Its reasoning is as follows:

(a) A commercial panel is a pragmatic half-way house between an (unaffordable) Commercial Court and a wholly generalist jurisdiction. Judges with an interest in, and an aptitude for, commercial matters could sit on the panel part-time, with the result that some of the advantages of specialisation are achieved but not at the loss of advantages of a generalist jurisdiction.
(b) This model would address one of the failings of the Commercial List, which is that cases ready for a trial return to the general list.
(c) By having an assigned judge from start to finish, efficiencies will be achieved and a single judicial officer will be responsible for ensuring that the case is disposed of in an appropriate and timely way.
(d) A move to a commercial panel, rather than retaining and improving on the Commercial List, will more readily permit the possibility of further specialist panels if that proves to be appropriate.

10.40If a commercial panel is not to be set up, the Law Society supports the Commission’s next best option, which is a revamp and extension of the Commercial List.

145Australian Law Reform Commission Managing Justice: A Review of the Federal Justice System (ALRC R89, 2000).
146Described in Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 138, at [7.47] – [7.54].