°NEW ZEALAND LAW SOCIETY

LAW CONFERENCE, ROTORUA, NEW ZEALAND

WEDNESDAY 25 APRIL 1984

LAW, BUSINESS AND CER

April 1984

°NEW ZEALAND LAW SOCIETY

LAW CONFERENCE, ROTORUA, NEI< ZEALAND

WEDNESDAY 25 APRIL 1984

LAW, BUSINESS AND CER

April 1984

NEW ZEALAND LAW SOCIETY

LAW CONFERENCE, ROTORUA, NEW ZEALAND

WEDNESDAY 25 APRIL 1984

LAW, BUSINESS AND.CER

The'Hon Justice. ~ID Kirby CM(}'"

INCREASED TRADE,lNCREASED DISPUTES

In July ·1983, at ,ttae invitation-of the New 'Zealand Legal. Research~Foundation,_I'

presented a paper to a seminar in Au~k1and on the Closer E~onomi~ Relations Agreement·

('CER Agreement') between Australia and New Zeala~~.LIn.': I!'y <paper2 ,I called

attention to the terms of the agreement signed in Canberra. .on 28 March 1983, ~hortly

-after' the <election, of"theHawke Government. The -terlJls,<were: those,'-negotiated, on the

part'·af:Australia, :by the: Fraser Govern~ent,.notably<by' Mr~ J-o.:Anthon:y~ .The agreement

deals,~principally.,.with".the. reduction' and-_ elimination _oC,--:,tarifr-:and;non-tariff-.b~rriersto

trad:e -between",the two;cou~tri~s.~'~Widerjnitiatives or::c.O:':Op.e~ation~bet!y~en:Austr,~ia and

New .Z.~alandareoreferredtoIn,pr()vi~ions whi~h,,' forex:aoop1e,. stat~.d:hat,;an ..9bje.c:tive of

·the- Agreement~ is,!,to,strengthen.the bro~der relationship between,;;~~st.r~li.aand,New

Zealand'•3 :.'I:·he CER .:Agreement ..goes well :beyond traditional "cdn~erns ,.,of trade

. agreements betweel1..sovereign,;~ountries. Deliberately, it establishi:!s,:a .bB_sis for. moving

beyond th.e ·tr,?Btmen~~ .::of;:goo~ ..at· national borders .to trade:relat~,d, '1ssu~s" wherever

arising' as bet.ween the twocountriesand~th'eir" residents., Spe~if-i~ally ,8. t)umb~r,''9C'.s~ond

. gener.~t.ion' issues are identi-fled, inc1uding;,harmonisation' on .mlltters sU~h a,s restrictive

trade~ ·practices4 , co-operation jn "investment; marketing, movement' of, people"., tourism

and transport·and taxati.on and companY-law.5

TheCEIt; Agreement does· ,not ~establish •an.. interjurisdi~tion_8~:,¢d'u-rt or tribunal

to resolve, .disputes having:' connections· ·with both .. juc·isdictions. ~Suchin~erjurisdictional

bodies are not uncomm.on: in agreements of this~kind~,6

Three things at least are clear from .a consideration of the CER Agreement.

First, it is sin:;~LY a start on the road to the harmonisation of laws and practices d.Cfe~ting

business in the two countries. On 'paper, it is no more than tna~.·although the Australian

Financial Review has said that there would have been no point to having such an

agreement 'if it does not represent a first step towards an economic union between

Australia and New Zealand'.

~.'

NEW ZEALAND LAW SOCIETY

LAW CONFERENCE, ROTORUA, NEW ZEALAND

WEDNESDAY 25 APRIL 1984

LAW, BUSINESS AND.CER

. The'Hon Justice. ~ID Kirby CM(}'"

INCREASED TRADE, INCREASED DISPUTES

In July 1983, at,ttae invitation-of the New ,Zealand Legal- Research~Foundation, l

presented a paper to a seminar in Auckland on the Closer Economic Relations Agreement'

('CER Agreement') between Australia and N ew Zea1a~~.l In. -: I!'y <paper2 , I called

attention to the terms of the agreement signed in Canberra _on 28 March 1983, ~hortly

-after' the:,e1ection, of"the Hawke Government. The terlJls:·'Were, those,'-negotiated, on the

· part--of "Australia, 'by the: Fraser Govern~ent,. notably<by' Mr~J-D-:Anthon:y~ .The agreement

deals,,-prineipally.·- with.-.the: reduetion' and elimination oC',,·,tariff' :and 'non-tariff- _barriers to

_' trad:e between,,-the two;cou~tri~s.:'Widerjnitiatives of-:c_o:-:op.e~ation. bet!y~en: Austr_~ia and

New .Z.~aland areoreferred to In-pr()vi~ions which,: for example,. stat~_:.J:hat,;an,'Qbje_ctive of

·the Agreement- is ,!,to strengthen ,the bro~der relationship between-; ;~~st.r~li.a and, New

Zealand' •3 -."I:-he CER .:Agreement _.goes well -beyond traditional concerns ,_,of trade

· agreements betweell._sovereign,,<;ountries. Deliberately, it establishes,:a ,b8_sis for. moving

beyond th_e -trI?8tmen~~ :oLgoo~ _at· national borders _to trade::relat~,d ''issu~s" wherever

arising· as between the two countries and~ th'eit:, residents.,Specif-ically ,8_ t)umb~r,''9t:'.s~ond

· gener_~~ion' issues are identi-fled, including;,harmonisation- on .matters such a,s restrictive

trade' 'praetices4, co-operation jn -'investment; marketing, movemen.t' ot people,_ tourism

and transport·and taxation and companY-law.5

The CER'. Agreement does .noLestablish an .. interjurisdiction_a~:,~d'u-rt or tribunal

to resolve, ,disputes having:' connections· with both juc·isdictions. ~Such in~erjurisdictional

bodies are not uncomm.on- in agreements of this~kind.,6

Three things at least are clear from _a consideration of the CER Agreement.

First, it is sin:;~LY a start on the road to the harmonisation of laws and practices d.ffecting

business in the two countries. On 'paper, it is no more than ttia-;,' although the Australian

Financial Review has said that there would have been no point to having such an

agreement 'if it does not represent a first step towards an economic union between

Australia and New Zealand'.

-2-

.Secondly, as Dr Geoffrey .Palmer has pointed, out, such efforts to improve

. trading relationships and abolish legal and administrative impedim ents, tend to underwrite

rather broader social and sfi!C:l:'ritY'relationships.7

Thirdly, 'the object of the CER Agreement, in the short-run and certainly in the

long-run, i~ the increase in trade between 'Australia an.d New Zealand. Such an increase in

trade will -undoubtedly result in an increase in disputes having trans-national

characteristics. The modern technology of informatics and fast travel means that such

trans-national disputes are'likely to 'arise anyway_ Reinforced by CER, they will expand in

number and "complexity. It is premature to judge the early impact of CER on

trans-Tasman trade. But estimates ventured at the time of negotiation suggested that

Australia would import between 21 and 23% more goods from New Zealand. New Zealand

would import 37 to 40% more goods from Australia.8 In the -wake of thisincr~aSed trade

come increased problems-and disputes requiring resolution. In the baggage of such disputes

come lawyers,' their_rules and institutions; to'help,resolve the disputes.

TRANS TASMAN COURT

Self-respecting countries tend not to welcome- submitting- disputes involving

'their residents' toco~ts'of btn-er:countries. There are many·'reasons.' Other courts may be

biased,- howeveruncons-ciously, in favour oftheir own-citizens; They will be fa~iliar with

their own rules and approaches to the interpretation of those Mes, sometimes'-·~o the,: :

exclusion of legitimate liltemative'approaches"with whicn--anotherparty is 'familiar. They

may be inconvenent or exPensive to the localresidimts, required to retain'lawyers and

take witnesses overseas. Tl:1qugh -courts are normally independent, -even the measure of

aC:countability provided by -procedUres for jUdicial selectio'n and 'appointment in countries

.such as in Australia and New "Zealand are lost when -disputes 'are submitted to a foreign

court over the selection a-nd -appointment of whose personnel local people-have had no say.

Foreign courts may be 'slower. They may provide fewer ancillary privileges (such as the

right to interest pending judgment). Their procedures ~~~ for example for the reception of

expert testimony) may be' more limited. Th~ir rules ~or eVid~nce (for example as to the

admission of computer or computer-generated materfaI) may be more restrictive." All of

these entirely rational r"easons~, whE!Q,..supplemented by a dash of -modest nationalism, may:

be sufficient to persuade countries to'·~ndeavour to rind~aineansof bringing disputes their

own courts - or at least before courts which are mutUally acceptable to both parties.

-2-

. Secondly, as Dr Geoffrey .Palf!ler has pOinted, out, such efforts t.o improve

. trading relationships and abolish legal and administrative impedim ents, tend t.o underwrite

rather broader social and sfi!cl!rity"relationships.7

Thirdly, 'the object .of the CER Agreement, in the short-run and certainly in the

long-run, i~ the increase in trade between 'Australia an.d New Zealand. Such an increase in

trade will -undoubtedly result in an increase in disputes having trans-national

characteristics. The modern technology of informatics and fast travel means that such

trans-national disputes are'likely t.o 'arise anyway. Reinforced by CER t they will expand in

number and ·complexity. It is premature t.o judge the early impact of CER on

trans-Tasman trade. But estimates ventured at the time of negotiation suggested that

Australia would import between 21 and 23% more goods from New Zealand. New Zealand

would import 37 to 40% more goods from Australia.8 In the -wake of this incr~aSed trade

come increased problems-and disputes reqUiring resolution. In the baggage of such disputes

come lawyers, their _rules and institutions; to 'help,resolve the disputes.

TRANS TASMAN COURT

Self-respecting countries tend not to welcome- submitting- disputes involving

'their residents' to co~ts' of otner :countries. There are many"reasons.' Other courts may be

biased" however unconsciously, in favour of their own -citizens; They will be fa~iliar with

their own rules and a~proaches to the interpretation of those ~es, sometimes'-'~o the,: :

exclusion of legitimate Bltemative'approaches"with whicn--another party is 'familiar. They

may be inconvenent or exPensive to the local residents, required to retain'lawyers and

take witnesses overseas. Tl:lqugh -courts are normally independent, -even the measure of

al!countability provided by -procedUres for judicial selecti6n and 'appointment in countries

such as in Australia and New'Zealand are lost when -disputes 'are submitted to a foreign

court over the selection a-nd -appotntm ent of whose personnel local people- have had no say.

Foreign courts may be 'slower. They may provide fewer ancillary privileges (such as the

right to interest pending judgment). Their procedures ~~~ for example for the reception of

expert testimony) may be' more limited. Th~ir rules ~or evid~nce (for example as to the

admission of computer or computer-generated materfal) may be more restrictive'- All of

these entirely rational r.easons~, whE!Q,.,supplemented by a dash of -modest nationalism, may:

be sufficient to persuade countries to' ·~ndeavour to rind~aineans of bringing disputes their

own courts - or at least before courts which are mutually acceptable to both parties.

- 3 -

This was the context in Which I explored the various possibili ties for a mutually

acceptable court to resolve, as between residents of AUstralia and New Zealand, the

increasing nUinber of commercial disputes likely to arise as a consequence of increased

trade following the CER Agreement. What were the possibilities?

The Privy Council. The first was to revive Australian participation in the one court

which Australia and New Zealand still share, namely-the Judicial Committee of the

Privy Council. Although participation in the' Privy· Council has been questioned in

. New Zealand,-the questioning has 'gone,-much-rurthe~'-inAustralia·to -the point of

virtual abolition. Appeals from the High -Court of-';'A~tralia or State courts

exercising Federal jurisdiction are no'w terminatea.9 By -agreement of the States,

the Australian F-ed~i"alGovemment_is also negotiating with the United Kingdom

Government the: final terminatioo of residual State-" appeals. -Though promised tor

the e'ndo! 1983, this ultimate severence of the judicial umbilical cord to London is

still awaited)O But it now seems certain toeome. In' New Zealand the debate

-has been more ambivalent. ;Lawyers have sl?rung to the defence of this splendid

imperial anachronism. David Baragwanath has-written '8 valiant-apology to the

Privy Council in the December:19S3 -issue of Recent 'Law 11. For present

purposes, it is sufficient to~ say that, whatever ~e~ Zealand decides to do on this

issue" and" whatever 'mighthavebeen:'dol}~at "an earl,ter time; it"Is now unthinkable

that Austr'alia. ;'will' -reverse direction. Asa trans..;nationalcourt-for resolving

commercial'disl?utes in"a neutral-rorum"as between' Australia and New Zealand, the

Privy Council'is not feasible.'Rad the' United <Kingdom Government shown- more

creativity- 20_years -ago, a truly international court of the common law might have

been- created. But it, did- not. And it is-now too late."

Regional Privy Council.,-The second possibility .would be the creation of a special

judicial committee of the Privy Council for Commonwealth countries in the PacifiC

: "}lasin. Various suggestions to this end have" been urged-over the years) 2 :Vl~~ure,""'"advanced countries such as Australia and New Zealand have a.. contribution to make

to' assist common law countries in the region, of which there- are -many. However,

tor· the prOVision of" 'a neutral jurisdiction -for ,Australia- and New Zealand, this

notion- is also unacceptable. The numbers-of jUdicial'membersof.the" Privy Council

in Australia are- dwindli'ng.·Labor 'Prime Ministers decline ep-pointment- to the Privy

Council in Australia. It is incon~eivable that- a Labor Government in Australia

would '-breath life into the Privy Council by-appointing- jUdges (assuming they were

willing)-to the Privy Council in order to constitut~ a regional Board. Like the

notioo'··ofreviving' appeals to London, this is an idea -whose time has passed.

- 3 -

This was the context in which I explored the various possibili ties for a mutually

acceptable court to resolve, as between residents of AUstralia and New Zealand, the

increasing nuinber of commercial disputes likely to arise as a consequence of increased

trade following the CER Agreement. What were the possibilities?

The Privy Council. The first was to revive Australian participation in the one court

which Australia and New Zealand still share, namely- the Judicial Committee of the

Privy Council. Although participation in the- Privy· Council has been questioned in

. New Zealand, -the questioning has 'gone,-much rurthe~·-in Australia· to -the point of

virtual abolition. Appeals from the High -Court of- '-'A~tralia or State courts

exercising Federal jurisdiction are no'w terminatea.9 By "agreement of the States,

the Australian F-ed~i-a1 Government _is also negotiating with the United Kingdom

Government the: final terminatioo of residual State-. appeals. -Though promised for

the e'nd of 1983, this ultimate severence of the judicial umbilical cord to London is

still awaited)O But it now seems certain to eome. In New Zealand the debate

-has been more ambivalent. ;Lawyers have sl?rung to the defence of this splendid

imperial anachronism. David Baragwanath has -written 'a valiant -apology to the

Privy Council in the December :1983 -issue of Recent 'Law ll • For present

purposes, it is sufficient to. say that, whatever ~e~ Zealand decides to do on this

issue" and, whatever 'might have been-:dol).~ at 'an- earl.i.,er time; i~'Is now unthinkable

that Austr'aJia. ;'will' -reverse ': direction. As a trans....;national court- for resolving

commercial'disl?utes in'a neutral forum 'as between' Australia and New Zealand, the

Privy Council is not feasible.' Had the' United -Kingdom. Government shown- more

creativity- 20_years -ago, a truly international court of the common law might have

been- created. But it did- not. And it is -now too late •.

Regional Privy Council.,-The second possibility .would be the creation of a special

judicial committee of the Privy Council for Commonwealth countries in the P~ific

: ,~asin. Various suggestions to this end have" been urged- over the years.1 2 :Vl~ture,

, ""advanced countries such as Australia and New Zealand have a .. contribution to make

to' assist common law countries in the region, of which there- are -many. However,

for· the provision of"'a neutral jurisdiction -for Australia -and New Zealand, this

notion- is also unacceptable. The numbers -of judicial members of. the, Privy Council

in Australia are- dwindli'ng.·Labor Prime Ministers decline ep-pointment- to the Privy

Council in Australia. It is incon~eivable that- a Labor Government in Australia

would '-breath life into the Privy Council by- appointing- judges (assuming they were

willing)- to the Privy Council in order to constitut~ a regional Board. Like the

notiOn'-';'f reviving' appeals to LondQn~ this is an idea -whose time has passed.

- 4 -

The fact that the Privy Council ~ould sit in,Canberra or Wellington would make it

no more attractive to tho~e Antipodean politicians who believe that the,time has

come t~.sever, not reinforce, imperial institutions.

Use of the High Court of Australia. The further possibility is suggested by the

provision ofappeaIs to theH.igh·,Cou.rt of Australia from', the -Supreme Court of

Nauru).~ '.However, it,is,- unthinkable that.,.th~ High Court of -1":lew· Zealand and

,Court of Appeal .. of· New·: Zealand- would ,submit ~o. the d.e<7isions:, of a purely

Australi~.HighCourt, made up.,o(Australian.lawye~_unfamiliarwith New Zealand

constitutional an~ legisl~tiv~"tradi~ionsand unaided by.- ~,e~ ;Zealand" participation.

At .least. il} the caseD! ,t1)e Privy Counci!,- arrangements.~e mSc1e fOF a local

participant to ~ake".p-1U"tin ,most appealsa·This eouldt:l0t be. done, for, appeals to the

High Court. pf Australia, as such. 'In any ease, suchaJa~i1i~ywoulq.~otachieve the

object in, view, namely, the: creation of s' to~ally neutral trsns';'nationBl court for

'disputes ;having a trans~national·character. Whatev,eI' the dignity and reputation of

the High Court of' Australia, it would remain ·an Australian court, composed of

Australian jUdgesa The obj,ectiveof a forum, neutral in. reality and appearanc.e,

would ,not be achieved by this e,xpedient.

Trans-Tasman Commercial Court~·.ThefinaLpossibi1ity.isthecrea:tion of a special

· court- ~omprising experts in ·areas.'of.law- ,likely to ·arise.: in disputes between

commercial pepple in: Australia- and New ~.Zealand.:.:There is something of a

· precedent 'for.this in ,the European Court of Justice established under Article 177

of the Treaty'of Rome~ Many business people 'and their lawyers considered.this to

be the most likely possibility for proViding a .prompt, :specialised ;and ,efficient

service for business disputes, possibly by jUdges seconded from superior courts in

· each country -to the join~court.·However, this suggestion, though 'deserving further

exploration, is almost. certainly misconceived. It is, not .possible, Under':: the

:..,:,"ustraliao C.onstitution, to exctudeconstitutional prerogative review by the High

':Court of Australia of any court created by the Australian :~arliament (save the

anomalous exception of residual Privy Council appeals). Accordingly, any such

trans-Tasman commercial cour.t would be SUbject to having its -jUdgments and

orders regarded not as final: but as subject to the review. of th~,:Australian High

Court. justices. True it is, the Australian High Court might develop a convention

that its·discretionary relief would not· be granted against the trans-Tasman court

except- in special circumstances. Inevitably, as a gene~a1ist appeal court, it would

tend to show deference to specialised jUdges dealing with specialisted legislation

and practices. But the offence to princiole would remain. Althoug'h in New Zealand

such an interjurisdictional court could be made final, in A~.str1ilia it could not.

:~.

- 4 -

The fact that the Privy Council ~ould sit in,Canberra or Wellington would make it

no more attractive to tho~e Antipodean politicians who believe that the,time has

come t~.sever, not reinforce, imperial institutions.

Use of the High Court of Australia. The further possibility is suggested by the

provision of appeals to the H.igh·,Coll.rt of Australia from', the . Supreme Court of

Nauru).~ ,_However, it is unthinkable that.,th~ High Court of -l":lew- Zealand and

,Court of Appeal., of· New·-Zealand would submit ~o. the d.e<7isions- of a purely

Australi~.High Court, made up.,o(Australian.lawye~_unfamiliar with New Zealand

constitutional an~ legisl~tiv~" tradi~ions and unaided by:.. ~e~ ;Zealand" participation.

At .least i~ the case of· tI:te Privy Counci!,. arrangements .~e mSc1e fO,r a local

participant to ~ake".p-1U"t in ,most appealsa- This could t:lot be _ done. for. appeals to the

High Court. pf Australia, as such.'In any ease, such aJa~i1ity ~oulq_~ot achieve the

object in view, namely.the:creation of a to~ally neutral trans.;,.nationBl court for

·disputes 'having a trans-national-character. Whatev,eI' the dignity and reputation of

the High Court of' Australia, it would remain -an Australian court, composed of

Australian judgesa The obj.ective of a forum, neutral in_ reality and appearanc.e,

would ,not be achieved by this e,xpedient.

Trans-Tasman Commercial Court~· _The final_possibility.is the creation of a special

· court- ~omprising experts in -areas 'of law: ,likely to -arise.: in disputes between

commercial pepple in: Australia- and New"_Zealand. -There is something of a

· precedent -for. this in ,the European Court of Justice established under Article 177

of the Treaty'of Rome~ Many business people 'and their lawyers considered_this to

be the most likely possibility for providing a _prompt, -specialised 'and ,efficient

service for business disputes, possibly by judges seconded from superior courts in

· each country -to the join~ court.-However, this suggestion, though 'deserving further

exploration, is almost. certainly misconceived. It is, not ,possible, Under-:: the

: __ ,:,-ustralian C_onstitution, to exclude constitutional prerogative review by the High

':Court of Australia of any court created by the Australian :~arliament (save the

anomalous exception of residual Privy Council appeals). Accordingly, any such

trans-Tasman commercial cour.t would be subject to having its -judgments and

orders regarded not as final but as subject to the review. of th~ .. Australian High

Court. justices. True it is, the Australian High Court might develop a convention

that its- discretionary relief would not- be granted against the trans-Tasman court

except- in special circumstances. Inevitably, as a gene~a1ist appeal court, it would

tend to show deference to specialised judges dealing with specialisted legislation

and practices. But the offence to princiole would remain. Although in New Zealand

such an interjurisdictional court could be made final, in A~str1ilia it could not.

:~.

- J -

THE ISSUE OF FEDERATIO~

It was these conclusions, together with- the unsatisfying nature of the other

'possibilities (dual corrfmissions" for judges, -formal international arbitration, improvement

of service arid'- exec~ti6n- of process etc) that led me to sugget"that -AUstralia and New

Ze81and shquld reconsider: opeititig the debates -about an Australasia~ federation. Of

course, 'such ~discuSSion would" not -arise simply ~because a few 'commercial lawyers had

difficultY' in findirig an acceptable neutral forum for the settlem"ent of a number of

disputes about Dusiness law matters" arising 'in' the wake of the eER Agreement. The

coming tOgether "of two nations, long sovereign and irtdependent,.into the one polity israre,although it' has happened.I 4 -Something'either terrible or wonderful is needed for

two countries, enjoying all the privileges of separate sovereign independent personality, to

unite. War ~an do it. Banla"uptcy, as in the case of Newfoundland, can do it. Profound

economic adversity_,·,over an extended time might do it.l 5 No-one -'would deny that both

Australia and New Zealand :face economic -difqc)l1ties. With the -rapid progresS ,-of the

economies of Japan, 'Korea, Singapore and Malaysia, "it is likely- that 'our economic

difficulties will 'increase. Accordirtg- to reports, unemployment in New Zealand since 1976

has risen faster than dnany .other "OECD countr-y.<'Our ·':two countries remain

English-sp-eaking parliamentary demo-cracies, still basically of European, culture, in. a part

of the world from:which the imperiaLcarpet has; been suddenly rolled back.- Although the

'crimson, thread- of-kinship' .between' Australia 'and New'-Zealand to· which Sir·Henry Parkes

referred may be-getting 'a, little' thin and diluted, the things we' have'in common' are still_c.

profoundly more important than the points of difference when we_ compare- our two

countries toany:others in, this- region,' indeed·'mostothers: in-the world. Above all, at the

moment, -we, have ,a 'comrri()~:-,head of- -state,- largely similar political-institutions and

traditions,- and common problems to some of which the' CER ~greemerit is now addressed.

The 'point that we must 'both- realise-is that our nations- are'now-'beginning to undergo

critical changes from: ,within. Unless-seized, an' instant- of history may -pass when closer

political association is feasible.

From the very beginning Australia and' New' Zealand were closely linked. It was

James Cook who reported the discoy~ry of" both 'co~ntries to England. In 1783 James

Matr'll; a mi.d5hipman o.I1-".,~he;Erideavour~'prcssed for the colonisation of New South Wales

and- drew attention -to the advantages' that. it would galn.::"from- trade with New Zealand,

particularly the flax trade which did develop and prospect after the- colony was

established. I 6 '.' 1.-".

- J -

THE ISSUE OF FEDERATIO~

It was these conclusions, together with- the unsatisfying nature of the other

'possibilities (dual cOIn-missions" for judges, -formal international arbitration, improvement

- :;·-of service arid'- exec-Utien- or" process etc) that led me to sugget 'that -AUstralia and New

ZeBland shquld reconsider' opeititig the debates -about an Australasia~ federation. Of

course, 'such ~discuSSi.on would- not -arise simply "because a few 'commercial lawyers had

difficulty' in findirig an acceptable neutral forum for the settlem"ent of a number of

disputes about business law matters- arising 'in' the wake of the eER Agreement. The

coming tOgether 'of two nations, long sovereign and independent, into the one polity is rare, although it' has happened.l 4 -Something' either terrible or wonderful is rieeded for

two countries, enjoying all the privileges of separate sovereign independent personality, to

unite. War ~an do it. BanIa-uptcy, as in the case of Newfoundland, can do it. Profound

economic adversity_,·,over an extended time might do it.l 5 No-one -'would deny that both

Australia and New Zealand .face economic -difqc)llties. With the -rapid progress ,-of the

economies of Japan, 'Korea, Singapore arid Malaysia," it is likely that' our economic

difficulties will'increase. According- to reports, unemployment in New Zealand since 1976

has risen faster than rin any' other" OECD country. "Our ·':two countries remain

English-sp-eaking parliamentary demo-cracies, still basically of European culture, in. a part

of the world from ,which the imperiaLcarpet has, been suddenly rolled back.- Although the

'crimson thread- of-kinship' .between Australia -and New,'Zealand to· which Sir·Henry Parkes

referred may be-getting 'a, little' thin and diluted, the things we' have' in common' are still:.

profoundly more important than the points of difference when we_ compare- our two

countries to any:-others in, this- region-, indeed,'most others' in-the world. Above all, at the

moment, -we, have 'a 'comrrio~-- ,head of- -state,- largely similar political -institutions and

traditions,- and common problems to some of which the' CER ~greemerit is now addressed.

The 'point that we must 'both' realise- is that our nations are' now- ,beginning to undergo

critical changes from: ,within. Unless- seized, an' instant- of history may -pass when closer

political association is feasible.

From the very beginning Australia and' New' Zealand were closely linked. It was

James Cook who reported the discoy~ry of" both 'co~ntries to England. In 1783 James

Matr'll; a mi.d5hipman o.I1-,:,the :Erideavour~'prcssed for the colonisation of New South Wales

and drew attention -to the advantages' that. it would ghln.::"'rrom- trade with New Zealand,

particularly the flax trade which did develop and prospect aft'er the- colony was

established. I 6

- ti -'

The notion .of a political asso'ciation ,between .Australia and N.ew Zealand came

cla:;er to acceptance at the turn of the century than most people realise. New Zealand

~ ~as e~titled !~membe~hip of.the ,F,ederal Council of ,Au~,tralasia, established under the'

Impe!ial Act of 18.85, t~ough like New South Wales, it never. participated. There we~e Ne~

Zealand repres.enta~iY7s in. all',of the ~ustralian.Co.nstitutional Convent~,ons i.n. ~.re.1890s.

CO,~ering Clause 6 .~f the Australian G-onstitution includes New ..Zealand ',among the

colgnies which: ..rnigh~t malee ,up the-,new ,Austr~lian Common.wealth,' Although.th~re WB;S

neve~ ,.8. chance ,of New, Zealand... becomi!1g ,·8 State., at theestablishment":.,of. the

Commonwealth, the possibility of joi~I?-g. aiterF-ederatio.~:was to be the ,subj~ct of a

R~y~~ .:Com~~ssion, in 190J)7 Australia and New .:Zealand :have; ~e.en., closely, associated

ir~Lpea~e s.:nq..war•. The retre~t: of.the British Empire leave us as'almost identica]. cultures

in.a Jargely alien ,region.

The reactions to my proposal for ,8 ~evival of the Federal de.bate:·were:;mixed

but_-m~nly negative ,on ,both. sides of the Tasm'aJ)..• ThePrim,~ Minister~f ':f\lew Zealand (Sir

.Rober,L,Muldooll)· said that h~ did, not .. thinkilT!uch of .the idea, declaring that 'New

Zealanders"wouldn't w,ear it'. -Indeed, hedescrib~~l,the.idea as. e,'bad joke', ,and me as a

'comic' .' The Attorney--Generaland now Deputy Prime Minister of New Zealand, Mr J K

McLay, in"commenting",o~.the: address, ,said·thet. it .1~waj'S·.seemed ,inevitable that we

should move closer· together at least ·:eeonom:ically'.. Buthe did not ,believe 'that such

movement·· will ever reach ' the. stage .:ofc ~compiete,uJ1:ion'.l~, In' memorable words, Mr

McLay decl~e<l:"

I want. immediately to lay to rest any suggestionof.som-e <sort of Australasian

political union,. Mine ,is not,..a jingoistic, reaction from. a·,politician in a small

state. I simply do not believe that· ,any balance or adv~ntage has been

demonstrated. Indeed"the only benefit: would"be that they'd get a good cricket

team; we'd get a good rugby team; and an ,Australian horse would wiO: the

Melbourne Cup! 19

Dr Geoffrey. Palmer, in·his comment on ,my paper, was similarly cautious:

'Federation is not congenial to· the, New Zealand political experience. I do not

think we would take kindly to ·it and I am.doubtful that we would benefit from

it. The only chance of New Z~aland merging with Australia would be if we

faced a further 20 years of sustained .economic adversity. We could be drive to

it by the poverty of our economic performance.20

It is useful to collect the editorial comments thal 'were offered upon the

suggestion of reconsideration of the trans-Tasman federation. The New Zealand Heraldwas negative, at least for the time being:

'.~.

- u -'

The notion .of a pOlitical asso'ciation ,between .Australia and N_ew Zealand came

cla:;er to acceptance at the tUrn of the century than most people realise. New Zealand

~ ~as e~titled !~ membe~hip of-the ,F,ederal Council of .Au:;_tralasia, established under the'

Impe!ial Act of 18.85, t~ough like New South Wales, it never, participated. There we~e Ne~

Zealand repres.enta~iY7s ~n. all .. of the ~ustralian _Co:nstitutionai Conventi.o~ i,n. t.~e _1890s.

CO,~ering Clause 6 .~f the Australian G-onstitution includes New ._Zealand .. among the

colgnies which: __ migh~t malee .uP the-,new .Austr~lian Common_wealth .• Although_th~re WB,S

neve~ ,.8. chance ,of New· Zealand ___ becomi!lg .-a State .,at the establishment--__ ,of- the

Commonwealth, the possibility of joi~J?g. after p.ederati~~:was to be the .subj~ct of a

R~y~~ .. Com~~ssIon, in 190J) 7 Australia and New -:Zealand ,have, ~e_en .. closely associated

ir~Lpea~e s.:nq.-war.,The retre~t: of -the British Empire leave us as'almost identica]. cultures

in,aJargelyalien.region.

The reactions to my proposal for ,8 ~evival of the Federal de_bate:-were:,mixed

but_m~nly negative ,on both. sides of -the Tasm,aJ)._. The Prim,~ Minister ~f -New Zealand (Sir

.Rober,L.Muldoon)· said that h~ did, not .. think- ill1uch of the idea, declaring that 'New

Zealandel'S.,wouldn't w.ear it'. Indeed, he describ~.,the idea as_ a, 'bad joke', ,and me as a

'comic'.' The Attorney .... General and now Deputy Prime Minister of New Zealand, Mr J K

McLay, in--commenting",o~, the- address, ,said' that it ,'~waj'S' seemed ,inevitable that we

should move closer- together at least '.-eConomically'. But he did not -believe 'that such

movement" will ever reach' the. stage .:of'~compiete, lmlon'.l~. In' memorable words, Mr

McLay decl~ed:"

I want immediately to lay to rest any suggestion of _some sort of Australasian

political union .• Mine is not, __ a jingOistic, reaction from_ a-.politician in a small

state. I simply do not believe that' ,any balance or adv~ntage has been

demonstrated. Indeed"the only benefit: would--be that they'd get a good cricket

team; we'd get a good rugby team; and an 'Australian horse would win: the

Melbourne Cup! 19

Dr Geoffrey_ Palmer, in·his comment on ,my paper, was similarly cautious:

'Federation is not congenial to, the, New Zealand political experience. I do not

think we would take kindly to -it and I am_doubtful that we would benefit from

it. The only chance of N ew Z~aland merging with Australia would be if we

faced a further 20 years of sustained -economic adversity. We could be drive to

it by the poverty of our economic performance.20

It is useful to collect the editorial comments that. 'were offered upon the

suggestion of reconsideration of the trans-Tasman federation. The New Zealand Herald was negative, at least for the time being:

'.~.

- 7 -

Clooer economic relations, yes; a defence alliance, certainly; general

co-operation, by all means. But New Zealand as a State. or even two States of

Australia? Well, thanks all the same ..• Several countries have tried unions that

have come Wlstuck; and examples are known ~ Newfoundaland for one (and

Tasmania:- for another?) - of offsho're 'Provinces Or States that find themselves

,up. but ignored ••• No-one can know what people will think in 25, 50 or 100

years .. -Toeay-'s distance may become tomorrow's togetherness.21

lit Australia, the Melbourne~ took a simU'ar theme:

Mr Justice Kirby1s .~. ideas about a trans-Tasman federation are below his usual

standard ••• The Australian federation is an imperfect instrtument in any event

wJten it 'comes to ordering the lives of th~e who live in its component States.

Do we neoo the corriplication of additional States from across the Tasman

represented by, politicians who -wOuld~~,~ no less_ perverse than their Australian

counterparts? Do-we need Mr Muldoon at a Premiers' conference?22

The Auckland Star thoUght the unibn of the two countries' was lno answerll

While shari~ a common heritage, the two countries have inevitably grown in

different -directions. Australia, has a three or four-generation affinity to

homelands th;at arenot~our own; a diversity-of foreign-investment has set:many-. :

Austraian enterprises' on a -different course. Australia talks of becoming a

republic; an ideafar,Jrom the hearts of many New Zealanders who see in their

traditional ties, sta~i1ity and a sense_.of identity.23

The Nelson Mail- saw the two countries:85 actually drifting apart, with federation

becoming less, likely than ever:

In a world in which federations have had'·.,little success, it is odd that the

unification of Australia and ~ ew Zealand S~uld now be advanced as a credible

political goal. Toose accused ·or provincialis·m and pettiness could, in fact. have

been more pra~aticJnOU_!J90k than Mr Justice Kirby. We share a language and·

to a: large extent a commo~ -origin, it is true.··-But for 150 to 200 years we have

lived more than' a thousand miles apart, shaped; by different environments and

now, increasingly, influ.enced by different geopolitical consi'derations. Australia

islear.ningto live with Asia, whilst this country, at long last,: is corning to terms

with being partly Polynesi'an an.d lapped by the Pacific-.24

- 7 -

Clooer economic relations, yes; a defence alliance, certainly; general

co-operation, by all means. But New Zealand as a State. or even two States of

Australia? Well, thanks aU the same ..• Several countries have tried unions that

have come Wlstuck; and examples are known - Newfoundaland for one (and

Tasmania:- for another?) - of offsho're 'Provinces Or States that find themselves

,8.p. but ignored ••• No-one can know what people will think in 25, 50 or 100

years.'Toosy's distance may become tomorrow's togetherness.21

lit Australia, the Melbourne ~ took a simU-ar theme:

Mr Justice Kirby's .~. ideas about a trans-Tasman federation are below his usual

standard ••• The Australian federation is an imperfect instrtument in any event

wJten it ·comes to ordering the lives of th~e who live in its component States.

Do we neoo the corriplication of additional States from across the Tasman

represented by, politicians who 'wOuld~~!~ no less_ perverse than their Australian

counterparts? Do-we need Mr Muldoon at a Premiers' conference?22

The Auckland Star thought the unibn of the two countries' was 'no answer"

While shari~ a common heritage, the two countries have inevitably grown in

different 'directions. Australia, has a three or four-generation affinity to

homelands th:at are not~our own; a diversity-of foreigIi-investment has set:many·. :

Austraian enterprises' on a -different course. Australia talks of becoming a

republic, an idea far, from the hearts of many New Zealanders who see in their

traditional ties, st':l~i1ity and a sense_.of identity.23

The Nelson Mail- saw the two countries -as actually drifting apaI't, with federation

becoming less, likely than ever:

In a world in which federations have had".,little success~ it is odd that the

unification of Australia and New Zealand S~uld now be advanced as a credible

political goal. Toose accused 'or provincialis·m and pettiness could, in fact. have

been more pra~aticJn OU_!J90k than Mr Justice Kirby. We share a language and·

to a: large extent a commo~ -origin, it is true.··-But for 150 to 200 years we have

lived more than· a thousand miles apart, shaped; by different environments and

now, increasingly, influ.enced by different geopolitical consi'derations. Australia

islear.ning to live with Asia, whilst this country, at long last,_is corning to terms

with being partly Polynesian an.d lapped by the Pacific-.24

-8-

The Waikato Times .declared that the merger idea was a 'dead duck':

Sure~y the .need now is to sort out the problems, to get CE R into top gear and

rurming smoothly rather than to indulge in pipe dreams about a trans-Tasman

merger. That just isn't on and all the indications are, never will be.25

The Sydney" Morning Herald was distinctly negative, even a. little acid:

The tendency to want to solve problems wi th o~cstroke can lead to solutions

that become part of the problem. Life is complex.: There are few simple

solutions to its problems; no ,matter what the politicians, economists. lawyers,

doetol'S, engine~~ and leader writers might claim.26

Not aIfof the commentary, however, was negative. Some New Zealand editorials urged a

more serious-debate about the fundamental issues. Thus, the New Zealand Evening Post

asked whether the idea should not be explored more deeply:

[R] evi~l of the familar suggestion of New Zealand merging into Federal tmion

with Australia will be easily -dismissed by IDB!1y.But shouldn't we explore this

relationship more deeply? -TJ:le. popU1~ thing for. New Zealand politician or

newspaper editorial to say would ,be' to- reject giving up our independence to

become a small; distant voice as parto! the Australian Commonwealth. While

that argument is crucial, it is about time the people in both countries had some

fresh facts and-"a modern look at theaavantages and disadvantages of even

closer sssocision, including the ramifications of political. union. An

authoritative New Zealand and Australia joint commission with s Wide-ranging

brief should examine such a proposition and any lesser- options ••• -Humorous

references playing to our sporting rivalries are good for the day. But fu_ture

relationships between our two countries are of more long-term and

"comprehensive significance.27

The New Zealand Listener devoted half a page to the issue under the editorial heading

'Divided We Standi:

Mr Justice Kirby'S Federal union proposal deserves serious consideratioo, not

outraged rejection. Mr Palmer left -room for d.ebste when he commented that

only a further 20 years of adversity might bring us to the altar; but he predicted

the.! the future would look kindly on our part of the world. Whether that future

is kind or cruel, it is to be hoped that it brio.:,os with'H. some internal reunion of

our divided nation. Only then, whole and strong, could we consid-er a marriage ­

a partnership of equals.28

.,~,

-8-

The Waikato Times .declared that the merger idea was a 'dead duck':

Sure~y the -need now is to sort out the problems. to get CE R into top gear and

rurming smoothly rather than to indulge in pipe dreams about a trans-Tasman

merger. That just isn't on and all the indications are, never will be.25

The SydneiMorning Herald was distinctly negative, even a little acid:

The tendency to want to solve problems wi th o~cstroke can lend to solutions

that become part of the problem. Life is complex.: There are few Simple

solutions to its problems; no ,matter what the politicians, economists. lawyers,

doetol'S, engine~~ and leader writers might claim.26

Not aIfof the commentary, however, was negative. Some New Zealand editorials urged a

more serious-debate about the fundamental issues. Thus, the New Zealand Evening Post

asked whether the idea should not be explored more deeply:

[R] evi~l of the familar suggestion of New Zealand merging into Federal tmion

with Australia will be easily -dismissed by mB!lY' But shouldn't we explore this

relationship more deeply? -TJ:!e. popUl~ thing for. New Zealand politician or

newspaper editorial to say would ,be' to- reject giving up our independence to

become a small; distant voice as part of the Australian Commonwealth. While

that argument is crucial, it is about time the people in both countries had some

fresh facts and-"s modern look at the savantages and disadvantages of even

closer associaion, including the ramifications of political. union. An

authoritative New Zealand and Australia joint commission with a wide-ranging

brief should examine such a proposition and any lesser- options ••• Humorous

references playing to our sporting rivalries are good for the day. But !u_ture

relationships between our two countries are of more long-term and

" comprehensive significance.27

The New Zealand Listener devoted half a page to the issue under the editorial heading

'Divided We Stand':

Mr Justice Kirby's Federal union proposal deserves serious consideratioo, not

outraged rejection. Mr Palmer left -room for d.ebate when he commented that

only a further 20 years of adversity might bring us to the altar; but he predicted

that the future would look kindly on our part of the world. Whether that future

is kind or cruel, it is to be hoped that it brio.:,os with'i-t some internal reunion of

our divided nation. Only then, whole and strong, could we consid-er a marriage -

a partnership of equals.28

,~ ..

- s -

Talk-back radio, letters to the editor nnd the usual b!ll'rage of citizen opinion in the free

society, show divisions of view in Australia, as acute as those evidenced in New Ze'aland.

Shortly after my paper was delivered, Mr P McGuinness. Editor-in-Chief of the Australian

Financial Review, addressed the New Zealand National Press Club in l'{ellington.

, Commenting on my paper he said:

It is tmlikely~that the required constitutional procedures for admission as two

States of New Zealand are feasible. While there is specific provision in the

Australian 'Constitution for .admission of New-Zealand 'as a single "original'

State,-.any more is hardly a realistic proposition - ·faJ;" from enthusiasm for

'. political union' with New Zealand,' the' Australian "electorate's. view of your

country is best described as one of benevolent indifference u. I should add ·that

Judge Kirby'S spe~ch wase wide-rangin~ .review. of the possibilities ~of legal

co-ope~ati'on between Australia and New Zealand in the context of CE~. The

debate :concerning poli~ical tmion .w~..gnly touched upon glancingly. While the

problems of'New Zealan~,with th.e idea are understandable, I think everyone

should realise that this is a. theme that wUl recur as an undercurrent in all the

future discussions ,about closer political, economic, judicial and foreign policy

co-operation between us both.29

In an editorial in the Australian Financial Review, Mr McGuinness pointed to the absence

in New Zealand of the ~hecks;:and·balflllces that exist.in econorryic and business matters in

Australia:

The likenesses be~:'If~.~n. the, two countries ••• obscure the fact that in economic

matters, Australia' tends to operate under.a chec:;ks and balances system, in

which the rule of law is predominent. By contrast New Ze~land. has no written

co~titution,.n~: courts with standing independ~nt of the wishes of Parliament,

no limits on' the legislative authority of Parliament and not ,even a second

chamber of the Parliament with powers ofr,~p.ew and delay. The result is that a

government with a majority, of one and wi~h virtually unlimited powers to act

by regUlation, that is by d~ree, can establiSh a reign of terror in the economic

sphere.3°

A,lthough the N~w ,Zealand Prime Miniter did no;t describe Mr McGuinness as a 'comic' he

did descMbe him as 'an extraordinary rellow' and' expressed regret that the New Zealand

Government had i?aid his fare to deliver his speech}l

- s -

Talk-back radio, letters to the editor nnd the usual b!ll'rage of citizen opinion in the free

society, show divisions of view in Australia, as acute as those evidenced in New Ze'aland.

Shortly after my paper was delivered, Mr P McGuinness. Editor-in-Chief of the Australian

Financial Review, addressed the New Zealand National Press Club in Wellington.

, Commenting on my paper he said:

It is tmlikely'that the required constitutional procedures for admission as two

States of New Zealand are feasible. While there is specific provision in the

Australian 'Constitution for -admission of New Zealand 'as a single "original'

State,-. any more is hardly a realistic propOSition - -fa,: from enthusiasm for

'. political union' with New Zealand,' the- Australian '-electorate's- view of your

country is best described as one of benevolent indifference u. I should add -that

Judge Kirby's spe~ch was a wide-rangin~ ,review. of the possibilities ·of legal

co-operati'on between Australia and New Zealand in the context of CE~. The

debate :concerning poli~ical tmion .w~ .. .9nly touched upon glancingly. While the

problems of 'N ew Zealan~, with th,e idea are understandable, I think everyone

should realise that this is a. theme that wllI recur as an undercurrent in all the

future discussions ,about closer political, economic, judicial and foreign policy

co-operation between us both.29

In an editorial in the Australian Financial Review, Mr McGuinness pointed to the absence

in New Zealand of the ~hecks,:and- balflJlces that exist.in econorryic and business matters in

Australia:

The likenesses be~~~.~n_ the, two countries ••• obscure the fact that in economic

matters, Australia' tends to operate under a chec:;ks and balances system, in

which the rule of law is predominent. By Contrast New Ze~land_ has no written

co~titUtion,. n~: courts with standing independ~nt of the wishes of Parliament,

no limits on -the legislative authority of Parliament and not ,even a second

chamber of the Parliament with powers ofr,~p.ew and delay. The result is that a

government with a majority of one and wi~h virtually unlimited powers to act

by regulation, that is by d~ree, can establiSh a reign of terror in the economic

sphere.30

A,lthough the N~w ,Zealand Prime Miniter did no;t describe Mr McGuinness as a 'comic' he

did descMbe him as 'an extraordinary r ellow' and' expressed regret that the New Zealand

Government had i?aid his fare to deliver his speech} 1

- 10 -

The debate continues. According to reports, the former Leader of the National

Party, Mr JD Anthony, visiting New Zealand in January 1984, expressed the view that a

merger oi some kind between Australia and New- Zealand was 'inevitable in the long.

term'•32 He said that the economi~ of Australia and New Zealand would inevitably

become 'more and more locked' into one another. He said that the CER Agreement, of

which 11,e was a principal architect, would become more significant in the years to come.

It seems that comments to a similar effect w~re included in a written speech which Mr

Anthony was to deliver in New Zealand in January but deleted from the oral presentation

when he was advised that the subject was 'too hot to tou~tF.-pub1icly'.33 Nonetheless, the

. 'same report indicates that Mr Anthony canvassed his viewslpriv.at~ly)n.New Zealand and

found la willing acceptance of them'.34

Noo issue? Inevitable? Comic? Oversimplistic? Provincial pettiness? crimson

threads? The issue will remain with us. It is a far grander isSue than the context of

business law and trans-national coUrts. It is an issue about which some politicians at least

are speaking. It is an issue upon which thoughtful jUdges on both sides of the Tasman are

urging proper scrutiny.35 Scholarly articles Eire:" beginning to, emerge on the legal

problems of admitting New Zealand 'as anew State iJ~der s~121 of the Australian

Coostitution.36 The idea may seem many years bft/ It may seem something to be

postponed into the indefi~ite future and unlikely to come abo~t in our lifetime. On the­

other hand, w~en the Sydney/Melbourne rail link was c'elebrat'iid in 1883 commentators

then spoke of the 'far-off divine event' that would be' an'Austr'allan federation. History

soows our political affairs progressed rapidly so that, within 18 years the Australian

federation was to become "8 reality.37 But political wnI is needed. The development of

such a will normally requires a catalyst. Trans-Tasman' business law disputes are an

unlikely candidate for the catalyctic role. BUt the CER Agreement proVides an occasion

for friends on 'both sides of the Tasman, who still feel the pUll of the 'crimson thread' to

revive a thoughtful debate." It is a blessing of our Common heritage that' Wlder:·the

protection of our similar institutions, we can raise such issues in free and sober debate.-' .'." . -.

witoout w"orrying about calumny (on the one hand) or giving way to ·mindless zeal (on the

other),

COMMERCIAL COURTS

If the ambitious objective of a specialised trans-Tasman commercial court is

rejected, either for constitutional, political or practica138 reasons, even those who have

no 'philosophical or conceptual objection to the basic idea of a trans-Tasman commercial

court or specialised CER tribuna1'39 will acknowledge the need to get OUr domestic-

laws, institutions and proce,jures into' better shape.

'.-:: .

- 10 -

The debate continues. According to reports, the former Leader of the National

Party, Mr JD Anthony, visiting New Zealand in January 1984, expressed the view that a

merger oi some kind between Australia and N ew- Zealand was 'inevitable in the long.

term'.32 He said that the economi~ of Australia and New Zealand would inevitably

become 'more and more locked' into one another. He said that the CER Agreement, of

which 11,e was a principal architect, would become more significant in the years to come.

It seems that comments to a similar effect w~re included in a written speech which Mr

Anthony was to deliver in New Zealand in January but deleted from the oral presentation

when he was advised that the subject was ,too hot to tou~tF.-pub1iclyl.33 Nonetheless, the

. 'same report indicates that Mr Anthony canvassed his views'priv.at~ly)n .New Zealand and

fOWld 'a willing acceptance of them'.34

Noo issue? Inevitable? Comic? Oversimplistic? Provincial pettiness? crimson

threads? The issue will remain with us. It is a far grander issue than the context of

business law and trans-national COUrts. It is an issue about which some politicians at least

are speaking. It is an issue upon which thoughtful judges on both sides of the Tasman are

urging proper scrutiny.3S Scholarly articles are- beginning to, emerge on the legal

problems of admitting New Zealand -as a new State iJ~der s~121 of the Australian

Coostitution.36 The idea may seem many years ort/ It· may seem something to be

postponed into the indefi~ite futUre and unlikely to come abo~t in our lifetime. On the­

other hand, w~en the Sydney/Melbourmi rail li:nk was celebrat'eti in 1883 commentators

then spoke of the 'far-off divine event' that would be- an 'Austr'allan federation. History

soows our political affairs progressed rapidly so that, within 18 years the Australian

federation was to become _8 reality.37 But political wm is needed. The development of

such a will normally requires a catalyst. Trans-Tasman' i:msiness law disputes are an

unlikely candidate for the cataiyctic role. BUt the CER Agreement proVides an occasion

for friends on 'both sides of the Tasman, who still feel the pull of the 'crimson thread' to

revive a thoughtful debate.-It is a blessing of our Common heritage that' Wlder:-the

protection of our similar institutions, we can raise such issues in free and sober debate • . ' :." . -.

witoout w-orrying about calumny (on the one hand) or giving way to -mindless zeal (on the

other).

COMMERCIAL COURTS

If the ambitious objective of a specialised trans-Tasman commercial court is

rejected, either for constitutional, political or practica138 reasons, even those who have

no 'philosophical or conceptual objection to the basic idea of a trans-Tasman commercial

court or specialised CER tribuna1'39 will acknow1edge the need to get OUr domestic -

laws, institutions and proce.jures into' better shape.

'.--=:.

.- II -

This was the approach urged by Mr McLay in 1983 when he accepted 'the 'need to

concentrate attention on harmonising our commercial and trade practice laws'.40 I

. made ',thepoint,'which I repeat, that such harmonisation will not come about by wishful

thinkingor a feeling of go'cd will. It will need- a· great deal of tedious' preparatory' work,

.. ;'< painstaking negotiation and· institutions that will promote·the harmony•

. '- In terms o-f institutions, the CER Agreement, and thelil<ely 'irtcrease in trade

arid trade disputes 'between Australia and New -Zealand, calls attention -to the fact that

New Zealand has'still not 'established ·'a commercial court or co'romercisl- 'causes

jurisdiction of'the High Court, to deal in a specially expeditious and expert way with

business law 'disputes. There ''is' a; commercial- :list, in -the cOmmon law ~division of the

Supreme Court' of New South Wales. In charge of"the list is' Justice Andrew Rogers, one of

- the 'most'iIUlovative' and venturesome ,.of Australia,'s, judges. ,The, special treatment of

commerc:ial caus-es:originates' in New '·South- 'Wales -from an Act of 1903.41 This

legislation essentially copied,the English procedu~~~,by that time long established. There

is an interesting history of the origin and development of the commercial court in England

in a recent text 'by Anthony Colman,IThe Practice and Procedure 'of the Commercial

Courtl~42- Mr EW 'Thomas:has 'commented, -from aNew Zealand perspective, on the

irnpressive'features'of the New:South Wales liSt:-

The first· is ,:·the "practical"'approach of' -the court· 'in getting down ·to the

commercial.r,ealiti,es ,and the second~' is ,the. tendency for cases to be, settled

after the opp~ingparties: have heard what the other has to say.43

A someWhat similar' comm'e~,ciBl. causes jurisdiction was established in Victoria -by the

Victorian Supreme Court (Commercial Causes)"Rule:s 1978.

In addition to these initiatives in the two busiest jurisdictions of Australia,

haVing the great "pa.rtofthe.Australiari-population:and of its industry and commerce, an

important FederBl initiative "must be noted'.F'ederal aut~orities have long~ dominated the

field of· taxation in Australia. However, it is;:only lately that they began' to· venture into

the range of business law' concernsl"wit~ -the" e:.stablishme,nt of the Trade P~acticesCommission, the Natior.al.Co·mpanies& Securities Commission' and" other:.>relevant.

'. . , .~,':."

agencies. The Federal: C~ur,t of Austr;iia was created ·fn>':of976., It is vested with original'

and appeal jurisdiction "having a -distinct bias in favour 'of what may loosely be 'called

'business law' jurisdiction.. A newri:ational AustraUan court has' been created, having judges

who-, by background and jurisdiction, tend ··to· have and develop expertise in, business. tax.

industrial and administrative law., The jurisdiction of the Federar Court' continues to

expand apace under successive Governments of differing political persuasion.

.- It -

This was the approach urged by Mr McLay in 1983 when he accepted 'the 'need to

concentrate attention on harmonising Qur commercial and trade practice laws'.40 I

. made -,the point," which I repeat, that such harmonisation will not come about by wishful

thinking or a feeling of go'od will. It will need- a· great deal of tedious-preparatory- work,

-';' painstaking negotiation and· institutions that will promote" the harmony •

. '- In terms o-f institutions, the CER Agreement, and the U!<ely -increase in trade

arid trade disputes -between AUstralia and New·Zealand, calls attention- to the fact that

New Zealand has' stin not 'established ·'a commercial court or co-mmercial- 'causes

jurisdiction of'the High Court, to deal in a specially expeditious and expert way with

business law 'disputes. There -'is' a' commercial -list, in ,the cOmmon law:division of the

Supreme Court- of New South -Wales. In charge of--the list is- Justice Andrew Rogers, one of

- the -most 'iIUlovative- and venturesome .. of Australia-'s_ judges. -The- special treatment of

commerc:ial caUs-es :originates- in New "South- -Wales -from an Act of 1903.41 This

legislation essentially copied-the English procedu~~~t by that time long established. There

is an interesting history of the origin and development of the commercial court in England

in a recent text 'by Anthony Colman, 'The Practice and Procedure 'of the Commercial

Court,~42- Mr EW 'Thomas :has 'commented, -from a New Zealand perspective, on the

impressive-features-of the New'South Wales liSt:-

The first' is -,"the 'practical '--approach of' -the court· 'in getting down. to the

- -. commercial.r,ealities _and the second: is -the tendency for cases to be, settled·

after the oPP~ing parties: have heard what the other has to say.43

A somewhat similar' comm'e~_ciBl. causes jurisdiction was established in Victoria .by the

Victorian Supreme Court (Commercial Causes) "Rules 1978.

In addition to these initiatives in the two busiest jurisdictions of Australia,

having the great "part ofthe.Australiari,population:and of its industry and commerce, an

important FederBl initiative "must be noted'. F-ederal aut~orities have long~ dominated the

field of taxation in AUstralia. However, it is,:only lately that they began- to venture into

the range of business law- concerns".- "Wit~ .the" e:,stablishme.nt of the Trade P~actices

Commission, the Natior.al. Co'mpanies & Securities· Com mission- and- other:'>relevant" " '.' ~.,""

agencies. The Federal: C~ur,t of Austr;iia was created ·fn>-:o19'l6., It is vested with original .

and appeal. jurisdiction "having a -distinct bias in favour 'of what may loosely be 'called

'business law' jurisdiction .. A new national Australian court has' been created, having judges

who.., by background and jurisdiction, tend to have and develop expertise in- business. tax.

industrial and administrative law •. The jurisdiction of the Federal- Court- continues to

expand apace under successive Governments of differing political persuasion.

:'.,;.

- 12-

It has been reinforced by new understandings about its pendant jurisdiction. 13:" way of the

Copyright (International Protection) Regulat~ons,onejudge ·of the Court ,recently had to

give meaning·.to s9 of the Copyright Act 1962, (NZ) in respect of a·claim·Ior copyright by

an author of a work ·r~sident in New Zealand.:Specifically, he had to consider whether a

resident in New Zealand might sue· in Australia for infx:ingement of c,?pyrig1)t aQd.secure

an injunction and damages, including exemplary damages, for the alleged infringement of

the copyright in,.Australia.44. The case is an illustration. of the' way in which resort may

be had by New Zealand litigants to· an ,Australi_BP ·courtIor relief which includes

~nter.pretationof a New'ZealaI1dlaw· ~pplicable to pa.r:ties·iIJ-·A:ustralia;

II Australia' is providing specialised courts or,' special arrangements. within its

busiest superior courts .f~~; the handling':of business law disputes what is New Zealand

doing so that it can provide equiValent speed,· quality :and priority of seryice to business

law disputes, such as may. be expected to'arise as a consequence of the CER Agreement?

The answer to this question appears to be, so. far, not much.

A proJ~OSal, f.o! ,"~~e_ special provision. for commercial cases in what is now the

High Court of New, Zealand 'was made in Mar~h 1~74 by Jhe New Zealand Contra~ts &.

Commercial Law Reform Committee.~5,The New,.Ze.aland Law. Society end~~e9 the

committee's recommenda~ons,referring. to the 'twin evils of delay and expense' which had

led to the'creation' of: commercial courts elsewherew4.6. There was some opposition to the

proposal-on the basis, that it would give"an unfair':prio.rityof advantage. to commercial

cases. But the Royal Commission 'on: the; Courts, in, its report,. pointed to the special

urgency of many commercial disputes and the particular complexity and difficulty that

couldbe'.raised which would be assisted to resolution by the, assignment to such matters of

'judges with commercial experience'~47, The RoyaL Commission recommended -in favour

of a commercial Cases list. So !.ar, the list has not been established..

~<., Champions have entered the debate in. favour ·of. the .proposal.. None has been

more '"indefatigable than Mr· EW Thomas.48 The' arguments f9r and against the

commercial list· are rehearsed in Dr Sealy's' paper.49 It is not for me to resolve them.

But I ·can add an interesting post scriptum.Mr Thomas has now informed me' of a

Damascus Road conversion against the com mercia! court. In his view".;such a list could

probably only ·be justified in one centre of New Zealand, almost certainly Auckland. His

concern now is whether, for ,#ant of a separate Bar.• the legal profession' in New Zealand

could arrange its organisation adequately. so that it could seryice a separate commercial

court. He expresses ·concern that the result might be that commercial issues would

become a reap'tive' market fer barristers within law firms, particularly large law firms.

'.7;:- •

'.,;.

- l2-

It has been reinforced by new understandings about its pendant jurisdiction. 13:" way of the

Copyright (International Protection) Regulat~ons, one judge ·of the Court .recently had to

give meaning·.to s 9 of the Copyright Act 1962· (NZ) in respect of a·claim· for copyright by

an author of a work 'rElsident in New Zealand.: Specifically, he had to consider. whether a

resident in New Zealand might sue- in Australia for infx:ingement of c,?pyrigl:tt. aQd.secure

an injunction and damages, including exemplary damages, for the alleged infringement of

the copyright in . .Australia.44. The case is an illustration. of the way in which resort may

be had by New Zealand litigants to· an .Australi.B!J ·court for relief which includes

~nter.pretation of a New'Zealand law· ~pplicable to pa.r:ties-iI).·Australia;

-If Australia' is providing specialised courts or.' special arrangements. within its

busiest superior courts .f~~: the handling··of business law disputes what is New Zealand

doing so that it can provide equivalent speed,· quality "and priority of seryice to business

law disputes, such as may. be expected to' arise as a consequence of the CER Agreement?

The answer to this question appears to be, so. far, not much.

A proJ~OSal. f.o! =--~~e_ special provision. for commercial cases in what is now the

High Court of New. Zealand 'was made in Mar~h l~74 by ~he New Zealand Cantra~ts &.

Commercial Law Reform Committee.~5. The New .. Ze.aland Law. Society end~~ed the

committee's recommenda~ons, referring, to the 'twin evils of delay and expense' which had

led to the-creation- of:commetcial courts elsewherew4.6 There was some opposition to the

proposal- on the basis, that it would give'-an unfair' :prio.rity of advantage. to commercial

cases. But the Royal Commission 'at' the; Courts, in. its report,_ pointed to the special

urgency of many commercial disputes and the particular complexity and difficulty that

could be' raised which would be assisted to resolution by the. assignment to such matters of

'judges with commercial experience'~47. The 'RoyaL Commission recommended.in favour

of a commercial cases list. So I.ar, the list has not been established ..

".:.' Champions have _ entered the debate in. favour ·of. the .proposal .. None has been

more ''indefatigable than Mr· EW Thomas.48 The' arguments f9r and against the

commercial list· are rehearsed in Dr Sealy's' paper.49 It is not for me to resolve them.

But I 'can add an interesting post scriptum. Mr Thomas has now informed me' of a

Damascus Road conversion against the com mercial court. -In his view,..:stich a list could

probably only ·be justified in one centre of New Zealand, almost certainly Auckland. His

concern now is whether, far ,#ant of a separate Bar·, the legal profession' in New Zealand

could arrange its organisation adequately. so that it could seryice a separate commercial

court .. He expresses ·concern that the result might be that commercial issues would

become a 'cap'tive' market for barristers within law firms, particularly large law firms.

'.7;:- •

- IJ -

The lack of ready, candidates for the judiciary with deep and wide-ranging experience in

',commerciallaw may also bee problem. Additionally, Mr Thomas expresses the view that

the 'new code of civil procedure in New Zealand should first be given 'an o.pportunity to. be

tried. He'suggests·thst, the move to s commercim court might be premature. In' the end, it

might, reslilt in, no great improvement for the commercial community, such, as ,to justify

the propos~.at this stage.

Special' weight must be given to these views be'cause expressed by a person who

until'lately was such an important, vocal and persuasive advocate of' the· commercial list.

Yet many of th~ arguments previously urged byMr Thomas still seem relevant. Above all

we are living in-'an age-of sp¢cialisation·in.·thc.law-. In both Australia '.and New Zealand,

muJ. tinati'omil' irisur'-ance companies, banks and' others are daily.engaged in the 'intricacies

of', cbmmercial·,transactions, 'including an 'increasing :number with - a' -trans-national

'component. Such bodies~; not unreasonably, expect ·to have access, in local jurisdiction, to

courts in which they- can test' the. application 0f..locallaws,:-1ocal 'notions of-due process

and' local perspectives of proper commercial' practice. In -such 'cases it does seem

appropriate for a jurisdiction~:to :endeavour to provide a judge who' will be both swift and

correct.':Swiftness alone or correctness alone will not be adequate for such litigants. ,Both

qUalities must be. preseht:'at once. '.~-.

In most jurisdictions,-,certainly'in-.Australia, there has been a move away 'from

the general list,. in ,-recognition' of ,the growing specialisation, sophisticati9.~ and: ,:

complexity'of the law',:particularlyburgeoning:statute ,law.;' These, are developments which

began in>the.lasr.century but which have gathered. momentum in the past dec~des.. It is for

this reason .that :-Vice,.admiralty:;,courts :w_ere:~.created. It is for. this reason ,that Equity- - .divisions ~ave survived tne judicature system~ It is fOl" this reason.. that criminal lists,

probate lists,building lists, com,merc.ialJists'~ndsoon are established. Tpey are simply a

recognition. of· specialisation ~ i!J; -the law, in leglil pr.actice and hence in the, courts.

Questions of great,compl~Xity~can- arise in, the commercial sphcr.e.·Thereis, for example,

an enormous body ..or law on letters, pi. credit. A gooq}awyer can generally master this

body of mixed common law and statute law, quickly. 'In' the, future, computers will assist in

this regard'. But the lawyer, even so i~structed~"willndt deal with a case involving the law

on letters ,of credit 'with,".qujte,the s.ameassurance as a.lawyer who has a detailed and....' .~.".

up-to-date knowledge"of the body-of the. law in questioll;,~rn'the:case of the jUdge, he will

not perhaps know immediately the issues to which evidence is being directed. He may not

appreciate fine points ,on the~-;l',~levancy of evidence. He may experience difficulty in

ruling' as. to relevan!7~. He wilL,not himself ,be able to direct. questi-oos with precision

towards matters raised ·by. the, .issues for' trial. If he. is. not entirely familiar and

comfortable with the law. in question" he will moVe more 'cautiously and hence more

slowly.

- IJ -

The lack of ready' candidates for the judiciary with deep and wide-ranging experience in

.commerciallaw may also be e problem. Additionally, Mr Thomas expresses the view that

the -new code oC civil procedure in New Zealand should first be given an o_pportunity to_ be

tried. He' suggests 'that. the move to a com merci31 court might be premature. In- the end, it

might resUlt in. no great improvement for the commercial community, such as to justify

the propos~. at this stage.

Special' weight must be given to these views be-cause expressed by a person who

untn-Iately was such an important, vocal and persuasive advocate of-the, commercial list.

Yet many of th~ arguments previously urged by Mr Thomas still seem relevant. Above all

we are living in-'an age-of sp¢cialisation,in_-thc_law-. In both Australia '-and New Zealand,

mw tinati'onal' insur'-ance companies, banks and' others are daily ,engaged in the -intricacies

of- commercial-·transactions, including an increasing :number with - e' - trans-national

'component. Such bodies~; not unreasonably, expect ·to have access, in local jurisdiction, to

courts in which they can test' the_ application o~. tocallaws,:-1ocal -notions of -due process

and' local perspectives of proper commercial' practice. In - such 'cases it does seem

appropriate for a jurisdiction'to -endeavour to provide a judge who' will be both swift and

correct.':Swiftness alone or correctness alone will not be adequate for such litigants •. Both

qualities must be_preseht,'at once. " ~-,

In most jurisdictions,--certainly- in'.Australia, there has been a move away 'from

the general list,- in ,-recognition' of the growing speCialisation, sophisticati9,~ and:.:

complexity-of- the law','particularly burgeoning-statute law. These·are developments which

began in ·the_Iasr_century but which have gathered -momentum in the past dec~des._ It is for

this reason .that .-Vice,_~dmiralty-._cour.ts :w_ere ___ created. It is for_ this reason ,that Equity

divisions ~ave survived the judicature system~ It is fOl" this reason-- that criminal lists,

probate lists, building lists, com,merc,ial lists, ~nd so on are established. Tpey are simply a

recognition- of- speCialisation ~ ilJ: -the law, in leg/il pr.actice and hence in the, courts.

Questions of great,compl~Xity ,can- arise in, the commercial sphcr.e.-There is, for example,

an enormous body "or law on letters, pi. credit. A gooq.}awyer can generally master this

body of mixed common law and statute law, quickly. 'In the, future, computers win assist in

this regard-. But the lawyer, even so i~structed~"will ndt deal with a case involving the law

on letters ,of credit 'with,.-,qujte ,the s_ame assurance as a .lawyer who has a detailed and., '.' -~-,,-

up-to-date knowledge'-of the body-of the_law in questioll;,~rn' the :case of the judge, he will

not perhaps know immediately the issues to which evidence is being directed. He may not

appreciate fine points ,on the·"r,!~levancy of evidence. He may experience difficulty in

ruling- as_ to relevan!7~. He wilL,not himself ,be able to direct. questi-oos with precision

towards matters raised ·by_ the, issues for- trial. If he_ is_ not entirely familiar and

comfortable with the law. in question" he will mOVe more -cautiously and hence more

slowly.

......

- 14 -

It is a commonplace to say that .judges behave' differently when -they are

comfortable and confident in handli-ng issues. It.-is impossible to ignore the feeling_ that it

is held in commercial circles that business-people should be able to place evens. difficult

and complex problem ·before a superior court judge and secure a swift, and correct decision

from -8 person having -the highest expertise in the .field and able to .master the intricacies

of law and fact with facility, economy and assurance.

For Australia and New Zealand, there is an _additional consideration. With the

suggestion of the establishment ofco,mmercial-centres in··Australia and possibly in New

Zealand50, -to 'seize the opportunities that may be created~y_ the' haemorrhage of

business activities from Hong Kong,it is ,11)0re -than USually' vitalthat~he business

.commtmity, inc:luding th_e.ipternatiooal business comqnmity, be provided -with-the jUdicial

system., in both countries with something more than ... independence, .in~egrity and

. worlananlike mastery of a wide-' range of _Jegal problems. The multinatiOnal business

community will fairly demand from the judiciary the same qualities_ of specialist ~xpertise

that it.- will 'insist upon from' its lawyers .. Lawyers can .be changed .. · They can even be

trained and prepared to, offer servic~ of a highly,specialist-kind.. But the ,parties have no

,control over 'the' choice, training and preparation"af-the judge..·-It 'isJor the community,

through its court organisation and Jaws, to provideth~...rs:cility,the ,parties ,expect.. If the

community fails to do this, the problem~ will not go away. The parties will. They will look

.elsewhere for the swift and correct decisions that they r.equire.

Skill in the New Zealand legal profession -and judiciary may only develop if the

institutions and facilities are -there to permit them to be honed 'andrefined.. Though the

worldoad may not be great at first, the provision of a',specialist facility by people of high _

talent will: ·tend to attract legal business,.: The 'starting ,point is the provision of the

facility .. It it is not providec;l in:: New Zealand, common 'sense suggests 'that parties,

recogniSing this vacuum, will settle upon a jurisdiction of convenience, where 'speedy. and

corre~_~ decisicnscanbe 'provided; So it has been for a very long time in London .. This

point'"ls,m.ade in the first paragraph of Dr Sealy's paper.. In Englandi.f·is recognised in the

composition of the Commercial'Court--Committeeset up by the Lord Chancellor in 1977..

In recognition of the international ~lientele of the commercial list· in London, an

American lawyer is made a member of the committee'.. There is ~sO'- a' member for

Continental Europe.51 Colman explains it thus:

The fact that the Committee membership includes representatives of foreign

legal and commercial interests underlines the facts -that the Court is now

consciously performing a function which is in substance much wider than that of

a mere domestic court. Indeed, it is in effect now'"providing a forom for the

.:;: .

......

- 1-1 -

It is a commonplace to say that .judges behave' differently when -they are

comfortable and confident in handli-ng issues. It--is impossible to ignore the feeling_ that it

is held in commercial circles that business-people should be able to place evens. difficult

and complex problem ·before a superior court judge and secure a swift, and correct decision

from -8 person having -the highest expertise in the Jield and able to .master the intricacies

of law and fact with facility, economy and assurance.

For AUstralia and New Zealan(j, there is an _additional consideration. With the

suggestion of the establishment of co,mmercial-centres in··Australia and possibly in New

Zealand50, -to 'seize the opportunities that may be created ~Y_ the- haemorrhage of

business activities from Hong Kong, it is ,more -than USually' vital that ~he business

. commtmity, inc:luding th_e. ipternatiooal business comqnmity, be provided -with-the judicial

system., in both countries with something more than ... independence, jn~egrity and

. worlananlike mastery of a wide" range of _-legal problems. The multinatiOnal business

community will fairly demand from the judiciary the same qualities_ of specialist ~xpertise

that it.- will -insist upon from' its lawyers,. Lawyers can .be changed,., They can even be

trained and prepared to_ offer servic~ of a highly, specialist kind. But the ,parties have no

,contrOl over 'the' choice, training and preparation"af- the judge .. '-It ,is .for the community,

through its court organisation and Jaws, to provide th~,_.fs:cility· the .parties ·expect .. If the

community fails to do this, the problem~ will not go away. The parties will. They will look

_elsewhere for the swift and correct deciSions that they r.equire.

Skill in the New Zealand legal profession -and judiciary may only develop if the

institutions and facilities are -there to permit them to be honed 'and refined. Though the

worldoad may not be great at first, the provision of a'· specialist facility by people of high.

talent will- ·tend to attract legal business. The -starting ·point is the provision of the

facility. If it is not providec;1 in-- New Zealand, common 'sense suggests 'that parties,

recogniSing this vacuum, will settle upon 8 jurisdiction of convenience, where 'speedy. and

corre~_~ decisicns can be 'provided; So it has been for a very long time in London. This

point"ls' m,ade in the first paragraph of Dr Sealy's paper. In England i.fis recognised in the

composition of the Commercial'Court--Committee set up by the Lord Chancellor in 1977,.

In recognition of the international ~lientele of the commercial list· in London, an

American lawyer is made a member of the committee'. There is ~sO'- a' member for

Continental Europe.51 Colman explains it thus:

The fact that the Committee membership includes representatives of foreign

legal and commercial interests underlines the facts -that the Court is now

consciously performing a function which is in substance much wider than that of

a mere domestic court. Indeed, it is in effect now·-providing a forum for the

.-:;:- .

- 1:; -

litigation of disputes between overseas trading, bankin~ 'and shipping

organisations and corporations which often do not carryon busines.c:; in London

and whose disputes are: often Wholly unconnected with London or with Britain

save for the incorporation' of English law or a reference to London arbitration in

the Wlderlyingcontracts. If, as may well·be true, this is the only domestic court

. i.~ the civilised world whose administration is fashioned in regular consultation

with ane··on the' advice' of foreign- legal and commercial interests, that is

because the Commercial Court is performing' a unique flDlction in prOViding a

venue for the conduct of a very sUbstantial'proportion of all the world's

mercantile litigation. Indeed,in a recent "judgment in Ami" Rasheed Shipping

. ·.Corporation v Kuwait Insurance Company [1983] I WLR- 228, Sir John

Donaldson MR referred to the. Commercial Court as 'the curia franca of

i~ternational'commerceland being far more than' a national or· domestic Court

but i'ath~ .an interrational,'commercial Court, most of whose jUdgments were

concerned with· the rights and Obligati~ of foreign nationals.52

It cannot be "expected that a 'commercial'list in New Zealand or Australia will divert

litigation' of this kind, in any great number, to our courts. However, it may be anticipated

that the provision of a'like facility, with speed, expertise-, independence and correctness,

will soon·catch·,the eye of discerning business; people,' especially in Australia and New

Zealand.. It is, likely that, for convenience, such a cour~. would begin to attract, admit~edly

in smaller measure" t.he same- variety .of- interjurisdictionaJ:busfn~as has long been:. :

at~racted to the' comm'erciallist in London. If people·dojng business as between Australia

and New Zealand can point to an expert and specialist facility in Sydney or Melbourne, but

,no comparable facility in, Ne~ .Zealand, is it not likely that they will propose. and have it

agreed, that the forum for'the litigation.of disputes' shall be in Australia'? Would that not

be the sensible' thing' to·~ do?' Unless New Zealand and its lawyers are to watch with

resignation, the loos of this potential market in legal services, Virtually by default, it may

be time to' .consider 'once again the report: of the Law'Reform Committee, the

recommendaticn· of the., Law Society ~and the 'pro~sal of the New Zealand Royal

Commission on the Courts. The establishment of a co~~ercial court may be,nn expensive

,#ay, at first, to centralise experti~e'-and ,develop J speciaL skill and facility. But the

.process has to begin so~e~~e~e. T~~.. suggestion-.that there WOUld. only .be the requisite.

volume of business in Auckland ringS' 'somewhat hollow-'in-' the ears of a Federal jUdge in

. Australia. With mUch greater distances to cover, those judges simply practise the lesson

which Henry II introduced in England in Plantagenet- times~ ·Justicemust l)e taken to the

litigants. After' all, there are now many modem ways, that this can be done,-without gross

inconvenience to jUdicial officers and their staff:

- 1:; -

litigation of disputes between overseas trading, banking -and shipping

organisations and corporations which often do not carryon busines.c:; in London

and whose disputes are: often wholly unconnected with London or with Britain

save for the incorporation' of English law or a reference to London arbitration in

the Wlderlying contracts. If, as may well·be true, this is the only domestic court

. i.~ the civilised world whose administration is fashioned in regular consultation

with ane··on the' advice' of foreign- legal and commercial interests, that is

because the Commercial Court is performing' a unique ftmction in providing a

venue for the conduct of a very substantial -proportion of all the world's

mercantile litigation. Indeed, in a recent "judgment in Ami" Rasheed Shipping

. ·.corporation v Kuwait Insurance Company [1983] I WLR- 228, Sir John

Donaldson MR referred to the _ Commercial Court as 'the curia franca of

i~ternational-commercel and being far more than- a national or- domestic Court

but i'ath~ _an interrational,-commercial Court, most of whose judgments were

concerned with-the rights and Obligati~ of foreign nationals.52

It cannot be 'expected that a 'commercial-list in New Zealand or Australia will divert

litigation' of this kind, in any great number, to our courts. However, it may be anticipated

that the provision of a-like faCility, with speed, expertise-, independence and correctness,

will soon 'catch-,the eye of discerning bUsiness, people; especially in Australia and New

Zealand.. It is-likely tilat, for convenience, such a cour~_ would begin to attract, admit~edly

in smaller measure, the same-variety .of- interjurisdictionaJ"busfn~ as has long been:. :

at~racted to the' comm'erciallist in London. If people -dojng business as between Australia

and New Zealand can point to an expert and specialist facility in Sydney or Melbourne, but

.no comparable facility in Ne~ _Zealand, is it not likely that they will propose, and have it

agreed, that the forum for' the litigation.of disputes- shall be in Australia'? Would that not

be the sensible' thing' to-~ do?- Unless New Zealand and its lawyers are to watch with

resignation the less of this potential market in legal services, virtually by defaul tt it may

be time to' _consider brice again the report: of the Law -Reform Committee, the

recommendaticXl'- of the_. Law Society ~and the ·pro~sal of the New Zealand Royal

Commission on the Courts. The establishment of a co~~ercial court may be, nn expensive

'l!ay, at first, to centralise experti~e'-and .develop ~ special. skill and facility. But the

.process has to begin so~e~~e~e. T~,~_. suggestion--that there WOUld. only _be tfie requisite

volume of business in Auckland ringS' 'somewhat hollow-'in-' the ears of a Federal judge in

,Australia. With much greater distances to cover, those judges simply practise the lesson

which Henry II introduced in England in Plantagenet· times~ -Justice must l)e taken to the

litigants. After' all, there are now many modem ways, that this can be done,-without gross

inconvenience to judicial officers and their staff:

- 16 -

Travelling judges. New Zealand is linked by excellent domestic airline services.

Apart from occasionnl difficulty in getting away from Wellington becauSe of the

wind, it would be relatively simple for- circuits to be organised for a specialist

jUdge at relatively short notice so that he or she could sit where needed. This is a

commonplace in Australia, with much great distances to cover.•,Sir David Beattie,

when a jUdge, evidenced just such a willingness to travel. Once, when argument on

a change of venue arose, to move a trial from Wellington to, Auckland, he resolved

the difference by indicating that he would hear the 14 witnesses from Auckland in

that city and allow the ten witnesses in Wellington·..:t:o be called there.53 To the

objection of cost, one must offset the cost _of witness :t~avel and the provision

otherwise of the specialist -personnel innumeroU? jurisdictions~The imposition of a

regime of travel for a - lengthy period may-be unreasonable. In Victoria it is

understood that judges are appointed to duties in the commercial.list for a given

period of five years. Such an arrangement might even be attractive' to a lawyer

with the right temperament and interests, contemplating appointment.

Telemotions. A second innovaiJOii. -'which must be tried relates to the use of

telecommunicatioos. Reports now to hand indicate that arguments in appeal leave

applications to the Supreme Court of ·9ariada are being taken by

telecommunicaticns from Vancouver to ()ttawa via the satel1ite~54 'Iri Australia,

the Administrative Appeals Tribunal has for -a long time been ,using- telephone

J:100kUps for direction heatingsand the taking of some witnesses in remote 'country

towns. Now the Social Security Appeals Tribunal is doing the same- thing. In the

United States, s~called 'telemotions' are, long established in a number of the

States.55 A hundred years after Alexander Graham Bell invented the telephone,

lawyers and the jUdiciary are coming to terms with the invention.: Injunctions may

be sought and granted .In urgent circumstances by telephone. Arrest and search

warrants may now be Buthorisedby telep~one in some parts of Austral.j~.56

....,~1though New Zealand does not suffer from the tyran~y of distance to anything

-·:'tike the extent of Australia, the problem of dealing with ur~ht ·motions·before a

commercial judge resident in another city COUld, with proper facilities and under

rules laid down by the court, quite readily submit to the convenience, speed and

cost ·advantages of teleconferencing. Is there any doUbt that cpur'ts' of the 21st

Century will be so organised? Certainly in respect of preliminary hearings which

are such a feature of commercial litigation and where the evidence of witnesses is

not taken, telemotions provide _9.n obvious means of m~ximising the use made of a

specialist jUdge in a distant part of the country.

e",..,.

- 16 -

Travelling judges. New Zealand is linked by excellent domestic airline services.

Apart from occasionnl difficulty in getting a.way from Wellington becauSe of the

wind, it would be relatively simple for" circuits to be organised for a specialist

judge at relatively short notice so that he or she could sit where needed. This is a

commonplace in Australia, with much great distances to cover .•. Sir David Beattie,

when a judge, evidenced just such a willingness to travel. Once, when argument on

a change of venue arose, to move a trial from Wellington to, Auckland, he resolved

the difference by indicating that he -would hear the 14 witnesses from Auckland in

that city and allow the ten witnesses in Wellington·...:t:o be called thcre.53 To the

objection of cost, one must offset the cost .of witness :t~avel and the provision

otherwise of the speCialist "personnel in numeroU? jurisdictions~ The imposition of a

regime of travel for a· lengthy period may' be unreasonable. In Victoria it is

understood that judges are appointed to duties in the commerCial.list for a given

period of five years. Such an arrangement might even be attractive'to a lawyer

with the right temperament and interests, contemplating appointment.

Telemotions. A second innovS:t{Oii. ""which must be tried relates to the use of

telecommunicatioos. Reports now to hand indicate that arguments in appeal leave

applications to the Supreme Court of ·9ariada are being taken by

telecommunicaticns from Vancouver to ()ttawa via the satellite~54 "Iri Australia,

the Administrative Appeals Tribunal has for ·8 long time been ,using' telephone

J:lookUps for direction heatings and the taking of some witnesses in remote 'country

towns. Now the Social Security Appeals Tribunal is dOing the same' thing. In the

United States, s~called 'telemotions' are, long established in a number of the

States.55 A hundred years after Alexander Graham Bell invented the telephone,

lawyers and the judiciary are coming to terms with the invention.: Injunctions may

be sought and granted .In urgent circumstances by telephone. Arrest and search

warrants may now be authorised by telep~one in some parts of Austral.j~.56

,_ ... ~lthough New Zealand does not suffer from the tyran~y of distance to anything

-·"like the extent of Australia, the problem of dealing with ur~ht 'motions'berore a

commercial judge resident in another city COUld, with proper facilities and under

rules laid down by the court, quite readily submit to the convenience, speed and

cost 'advantages of teleconferencing. Is there any doubt that cpur'ts" of the 21st

Century will be so organised? Certainly in respect of preliminary hearings which

are such a feature of commercial litigation and where the evidence of witnesses is

not taken, telemotions provide "9.n obvious means of m~ximising the use made of a

speCialist judge in a distant part of the country.

:.- .

- 17 -

Written argument. In any ease the pressure on courts generally (and on commercial

jUdges in particular) is likely to become so great that the facility of open-ended

oral argumentation is likely" to be replaced by very limited" oral argument

supplemented by' precise written briefs or_argument"• .This process is already well

developed in' the United States. On aminar scale, it has been introduced in' appeal

"cour"~s in Australia where an outline of argUmentation must now be fUed with the

'court.--I do ROt- at "all exclude the possibility of communication with the court by

procedures of teletext so that word processors in lawyers' officers will inform

facilities" in·-the judges' chambers and the opponents' 'office of the written

argumehts offered on' points of law. Lawyers' must quickly COme to terms with the

implicationS of the"revolution in information technology. The courts too must adapt

" or they will run the risk of losing their rele:vance to the community, inclUding the

business community, they serve.

EXTRA CURIAL REMEDIES

Generally" speaking, the' courts in Australia and New Zealand. have failed

adequately to'serve the business community in the-resolution of. its disputes. The ordinary

businessman on', both .sides of the "Tasman 'does":not tmderstand' "and so cannot sympathise

with the, proc"edures of the courts': their. costs and. delay. These procedures are entrenched

"by traditioo:~ reinforced. by. "'~nceptions ',of !due "prC;lcess', cemented.~bystereotyped

approaches,',to'pro.blems; embalmedin rules of evidence "which"reflect a fascination with.

.oral testimony and a :~mistrust of documentation. They' are reinforced by professional

training'and conservative attitudes' on the Bench and at the Bar table.

For these reasons it is probable thatwhatever is done to improve the courts, by

the proVision of a commercial list, a specialist commercial jUdge and improVed and

simplified. procedures, most: businessmen will still regard, the courts as,a.place"of last

resort~'Theywi11lookeLSewhere for extra' judicial mechanisms which are cheaper, quicker,

less·technical,and less stressful·and·time-consuming~~'fFthe business'people 'involved. It is

for these reasons that it is likely that more use will be made in the future of arbitration,

r.eference to trade associations," the"'use of':'umpir~s,: references and court-appointed

experts and other me~~" qf,<"g~ttjn~~"J;)llsiness law disputes to a swift resolutIon without,

reference to the courts' of law.. .This" development wi11~::-happen anyway. It is likely to be

promoted by the failure of particular jurisdictions to provide specialist commercial judges

and by the·presence of multi-j1.:!J;'isdictional elements in disputes that make reference to

the courts of one country unacceptable in' one, place" or other.

- 17 -

Written argument. In any ease the pressure on courts generally (and on commercial

judges in particular) is likely to become so great that the facility of open-ended

oral argumentation is likely' to be replaced by very limited' oral argument

supplemented by' precise written briefs or_argument·. This process is already well

developed in' the United States. On a minor scale, it has been introduced in' appeal

. cour.~s in Australia where an outline of argumentation must now be fUed with the

·court.-"l do Rat. at 'all exclude the possibility of communication with the court by

procedures of teletext so that word processors in lawyers' officers will inform

facilities' in ·-the judges' chambers and the opponents' 'office of the written

argumehts offered on pOints of law. Lawyers· must quickly come to terms with the

implicationS of the"revolution in information technology. The courts too must adapt

. or they will run the risk of losing their rele:vance to the community, including the

business comm unity, they serve.

EXTRA CURIAL REMEDIES

Generally. speaking, the' courts in Australia and New Zealand. have failed

adequately to'serve the business community in the -resolution of. its disputes. The ordinary

businessman 00" both .sides of the-Tasman 'does':not tmderstand 'and so cannot sympathise

wit'h the· proc'edures of the courts·: their. costs and. delay. These procedures are entrenched

. by traditioo'~ reinforced. by _ "'~nceptions '. of !due "pr.ocess', cemented.- by stereotyped

approaches,·,to ·pro.blems; embalmed in rules of evidence ·which 'renect a fascination with .

.oral testimony and a '-mistrust of documentation. They' are reinforced by professional

training'and conservative attitudes' on the Bench and at the Bar table.

For these reasons it is probable that whatever is done to improve the courts, by

the provision. of a commercial list, a specialist commercial judge and improved and

simplified. procedures, most: businessmen will still regard· the courts as_a .place 'of last

resort.·They will look eLSewhere for extra' judicial mechanisms which are cheaper, quicker,

less' teChnical-and less stressful and time-consuming~~-~:F the business-people -involved. It is

for these reasons that it is likely that more use will be made in the future of arbitration,

r.eference to trade associations," the '-'use of':'umpir~s,: references and court-appointed

experts and other me~~. qf,<.g~ttjn~~.J;)Usiness law disputes to a swift resolutIon without.

reference to the courts' of law .. .This·development wi1l>happen anyway. It is likely to be

promoted by the failure of particular jurisdictions to provide specialist commercial judges

and by the .presence of multi-j1.:!l;'isdictional elements in disputes that make reference to

the courts of one country unacceptable in' one· place· or other.

- 18 -

Lawyers concerned with a proper servicing of the ,business community will not

resist these developments. They will encourage them and s~k to find a proper, supportive

role in them. In New Sout~ Wales, this is-. already happening. In Maschinenfabrik

Augsberg-Nurnberg- Aktiengesellschaft v Altikar Pty Limited (tmreported, 4 August 1983)

,"." Justice-RogerS, made an innovative-use -althe facility of an expert arbitrato.f -to deal with

particulaz:ly highly technical issues that arose in a commercial-case, before him. He placed

his orders in the context of the purpose of specialised commercialcC?urts: .

.Ever since', the turn of, the centurY,the ,Parliament has sought to facilitate

litiga~ion between commer~ial men by allocating special ,facilities by way of a

co,mmercial list, designed toena~le as spe~y, ,anc;l hopefully., as inexpensive as

possible resolution of the.dispute as is possible in the given circumstances. With

the advance of teclmology, to some extent· the-Jacilities so provided have

proved deficient, because no matter how knowledgeable a judge might be in

commer"cial practices, generally speB:~.ng his ab,il~ty to 'follow the teclmical

details of disputes must be limited. This is partiCUlarly so in relation to disputes

involving matters such'.8S computers or' other ;highly technical disputes which

from time to time come.to the courts. It.is.no doubt with thoughts such as these

in-, mind that the -High "Court ."has' .rece'ntly indicated its surprise that the

provisions.ofs 15 of the Arbitration Act have not been more frequ~nt1yused. Cf

Buckley v':Bennell Design Constructions' ·Ply.' Limited' (I977-78) 140' CLR I.

Although' 'the provisi'onhas ·.its" bUilt-in ,limitations,-:, it ,does provi~e an

opportunity for theccmrt,'either with the consentrof the parties or otherwise •••

to order the proceedings' or 'any question-or'issue of fact- arising therein, to be

tried before an ~bitrator agreed on by the parties, or before a referee

-appointed by the court for the purpose.51

The innovations did not finish with ·this order, which might, in any case, be seen as no

more than the appointrilent of aCDurt-chosen expert. The jUdge 'made it plain that the

procedure had to be 'moulded to the requirements of the: moment'. In particular he said:

, ,It seems to me that the s~tfon provides an' opportunity for an nrbitrator and a

judge to work in a.-,very r·eaJ. sense in partnership, in order to ensure that as',-- -or:'

quickly as possible nnd as -cheaply as possibiy-1he arbitrator is seized of the

technical aspects of the dispute, whilst the jUdge assists in the resolution of

such questions of fac~'__ 'and law as may arise~' This'· 'n'ecessitates -that the

arbitrator would have an opportunity of approaching the judge for assistance in

any respect which may become necessary. There is no room. in my view, in such

- 18 -

Lawyers concerned with a proper servicing of the .business community will not

resist these developments. They will encourage them and s~k to find a proper. supportive

role in them. In New Sout~ Wales, this iso, already happening. In Msschinenfabrik

Augsberg-Nurnberg-Aktiengesellschaft v Altikar Pty Limited (tmreported, 4 August 1983)

'-.' Justice-Rogers. made an innovative-use -of the facility of an expert arbitrato.r -to deal with

particulaz:ly highly technical issues that arose in a commercial-case, before him. He placed

his orders in the context of the purpose of specialised commercial cC?urts: .

. Ever since', the turn of, the century, the ,Parliament has sought to facilitate

litiga~ion between commer~ial men by allocating special facilities by way of a

co,mmercial list, designed to ena~le as spe~y, ,anc;l hopefully, as inexpensive as

possible resolution of the -dispute as is possible in the given circumstances. With

the advance of teclmology, to some extent· the Jacilities so provided have

proved deficient, because no matter how knowledgeable a judge might be in

commercial practices, generally speaking his ability to follow the technical

details of disputes must be limited. This is particularly so in relation to disputes

involving matters such" -as computers or' other ;highly technical disputes which

from time to time come_to the courts. It_is_ no doubt with thoughts such as these

in-, mind that the -High-'Court _"has" .rece'ntly indicated its surprise that the

provisions .ofs 15 of the Arbitration Act have not been more frequ~nt1y used. Cf

Buckley v,:Bennell Design Constructions' ·Ply.' Limited' (J977-78) 140' CLR I.

Although" the provision has ·.its" built-in, limitations,', it ,does provi~e an

opportunity for the cQurt,-either with the consentrof the parties or otherwise ...

to order the proceedings' or --any question- or" issue of fact- arising therein, to be

tried before an ~bitrator agreed on by the parties, or before a referee

-apPOinted by the court for the purpose.51

The innovations did not finish with ·this order, which might, in any case, be seen as no

more than the appointment of a court-chosen expert. The judge -made it plain that the

procedure had to be 'moulded to the requirements of the: moment1• In particular he said:

, , It seems to me that the s~tfon provides an' opportunity for an nrbitrator and a

judge to work in a .-.very r-eaJ. sense in partnership, in order to ensure that as " - "r:'

quickly as possible nnd as -cheaply as possibiy-1he arbitrator is seized of the

technical aspects of the dispute, Whilst the judge assists in the resolution of

such questions of fac~' __ -and law as may arise.' This'· -n'ecessitates -that the

arbitrator would have an opportunity of approaching the judge for assistance in

any respect which may become necessary. There is no room. in my View, in such

- 19 -

proceedings for the dispute to be delayed by requirements for special cases or

for stated cases. Equally there should be no need for the judge to have to

form uIate with great specificity the subject of the matter to be resolved by the

arbitrator. Ideally, a judge 'should have the -opportunity of sitting with 8

technical expert as an assessor. The legislature has -not yet been able to bring

itself to allow for'such method of trial, but 8s·1 see it, it should be po')sible to

utilise.s 15 [of the Arbitration Act] in that fashion.58

Following this aecision, Justice Rogers wrote to the PresidE$t of the 'Law Society of New

South Wales, making a number of suggestions for the improvement of the commercial list

procedures.59 In this, he repeated the suggestion of the use of the expert:

At [the] -first directions hearing, in the 'discussion of " the issues "for' trial,

consideratiOn will be given to alternative means of dispute resolution. Thus, if

~he proceedings involve: questions of a highly complex and 'technical nature,.

more readily, speedily and- inexpensively decided by 'an --expert, the parties

should be ready to discuss whether or not some- or all- of the isSues should be

remitted to a court-appointed expert or to arbitration '-or in Some other way

resolved leaving only, the -legal issues fop ,-determination 'by the -Court.

Consideration would need to be given' as to which should come first, the Court

hearing or. thedeterminatlon -by the expert~ Again, consideration should be

given to the question of whether -, .~-. '-the matter is· one which could more

appropriately be resolved in the District Court.

As a check- against dilitariness, incompetence or lack of attention to the interests of the

parties in swift and expert service,Justice Rogers lays down some rathe~'firm gUidelines,

eVidencing a forthright and vigorous jUdicial participation and activism. Whilst this might

be considered out of place-in the traditions of the criminal trial, it would almost -certf:!:.inly

be w~l~med by all but the unjust in most business law disputes where time and inflation,

to s-aY'-"'nothing of inconvenience and legal costs, operate against ,-the interests of the

business disputants before the court.

Justice Rogers has even· raised the- spectre of lawyers regu.larly· in breach of

interlocutory orders in the commercial list being-made themselves liable for the costs:

- 19 -

proceedings for the dispute to be delayed by requirements for special cases or

for stated cases. Equally there should be no need for the judge to have to

formulate with great specificity the subject of the matter to be resolved by the

arbitrator. Ideally, a judge -should have the -opportunity of sitting with 8

techniC!e.l expert as an assessor. The legislature has not yet been able to bring

itself to allow for-such method of trial, but as-r see it, it should be po')sible to

utilise.s 15 [of the Arbitration Act] in that fashion.58

Following this aecision, Justice Rogers wrote to the PresidE$t of the 'Law Society of New

South Wales, making a number of suggestions for the improvement of the commercial list

procedures.59 In this, he repeated the suggestion of the use of the expert:

A t [the] -first directions hearing, in the 'discussion of ," the issues "for' trial,

consideratiOn will be given to alternative means of dispute resolution. Thus, if

~he proceedings involve" questions of a highly complex and "technical nature,.

more readily, speedily and" inexpensively decided by "an "-expert, the parties

should be ready to discuss whether or not some" or all of the isSues should be

remitted to a Court-appointed expert or to arbitration "or in Some other way

resolved leaving only, the legal issues fop ""determination 'by the "Court.

Consideration would need to be given" as to which should come first, the Court

hearing or" the determination "by the expert~ Again, consideration should be

given to the question of whether "":'"0 the matter is" one which could more

appropriately be resolved in the District Court.

As a check" against dilitariness, incompetence or lack of attention to the interests of the

parties in swift and expert service, Justice Rogers lays down some rathe~"firm gUidelines,

evidencing a forthright and vigorous judicial participation and activism. Whilst this might

be considered out of place"in the traditions of the criminal trial, it would almost "certf:!:inty

be w~l~med by all but the unjust in most business law disputes where time and inflation,

to say"""'nothing of inconvenience and legal costs, operate against ,-the interests of the

business disputants before the court.

Justice Rogers has even" I"aised the" spectre of lawyers regu"larly" in breach of

interlocutory orders in the commercial list being"made themselves liable for the costs:

- 20 -

The amount of money tl1rown away in costs is scandalous ••• The consequential

orders for costs must have run into thousands of dollars. From the point of view

of the community such : costs of litigation is unacc~ptable ... The consequent

increase in, costs is ,presently borne by the litigants,but I do not think that this

situation'~an long continue. The duties of a solicitor in ;relation to discovery are

clearly set out in the authorities and it is an obligation that is owed to the

C~urt not.j~t to the client.;60

I am not, saying that all -the innovations proposed by Justice Rogers are beyond debate.

Some lawyersn:;-esist the 'notion of splitting cases, as he contemplates between the

respective. functioris of the expert and the jUdge. Some lawyers - suspect. that this

procedure may actually tend to add to costs and uncertainty.61 Other lawyers will be

cautious about accepting lexperts'~ given that in particular areas of expertise there may

be conflicting 'schools' of opinion. Without ~xposing entirely the expert's view to scrutiny

-in the courts, th~ choice of ~he expert may sC?~etimes determine an issue upon which

there is a genuine controversy. Still others 'w,ill be cautious about out-of-court, informal

,consultation between judge and expert. Some will question .the suitability of professiona:l

bodies to nominate '~xpertsf, given the ,general orthodoxy and conservatism of such bodies.

Still others will be cautious about the compliance 'of the expert with obligations as to

confidentiality and convention, matters second nature to a jUdge after a lifetime in the

law.62, Doubtless sorri'e ·practitioners. resent the goadi~'or the commercial list. jUdge and

the ,peril of lin opinionated judg~'is clearly to be kept in mind.

For all these reservations, it is plain that the languid way in which the normal

civil courts deal with dis~utes is inappropriate to much litigation and specially

inappropriate to business disputes.' None but ,the very rich or the legally-aided very poor

can afford such a pace. That,is .why the efforts of specialist commercial judges to improve

their through-put, including by the adoption of novel techniques, is to be welcomed.

Other ideas deserve 'exploration but cannot be,:elaborated here. They involve the

creation of a specialised panel of arbitrators, inclUding 'some who have international

reputations, Cor use in arbitrations' of trans'bord'er disputes; the improvement of

Antipodesn procedures fpr ~!;>itration which have tended to replicate ,court hearings ..

without the advantng~"'th~; offer';"'::~nd the use of"r~trred judges for the purpose of

arbitrations of this kind. The growth in the size of superior courts in Australia and New

Zealand and the Current depresseq levels of judicial salaries in both countries, have tended

to result in appointment of judges at much earlier ages than in times gone by. It seems

likely to me that these comparatively young jUdges will retire, in increasing numbers.

upon reaching the minimum age for the receipt of a judicial pension.

The amount of money tl1rown away in costs is scandalous ••• The consequential

orders for costs must have run into thousands of dollars. From the point of view

of the community such: costs of litigation is unacc~ptable ... The consequent

increase in costs is .presently borne by the litigants, but I do not think that this

situation' ~an long continue. The duties of a solicitor in ;relation to discovery are

clearly set out in the authorities and it is an obligation that is owed to the

C~urt not.j~t to the client.;60

I am not. saying that all -the innovations proposed by Justice Rogers are beyond debate.

Some lawyers ":;oesist the 'notion of splitting cases, as he contemplates between the

respective. functioris of the expert and the judge. Some lawyers - suspect. that this

procedure may actually tend to add to costs and uncertainty.6l Other lawyers will be

cautious about accepting 'experts'~ given that in particular areas of expertise there may

be conflicting 'schools' of opinion. Without exposing entirely the expert's view to scrutiny

-in the courts, th~ 'choice of ~he expert may sC?~etimes determine an issue upon which

there is a genuine controversy. Still others 'w.ill be cautious about out-of-court, informal

.consultation between judge and expert. Some will question .the suitability of professionB:1

bodies to nominate I~xperts', given the general orthodoxy and conservatism of such bodies.

Still others will be cautious about the compliance 'of the expert with obligations as to

confidentiality and convention, matters second nature to a jUdge after a lifetime in the

law.62. Doubtless som'e 'practitioners resent the goadi~' of the commercial list judge and

the .peril of lin opinionated judg~'is clearly to be kept in mind.

For all these reservations, it is plain that the languid way in which the normal

civil courts deal with dis~utes is inappropriate to much litigation and specially

inappropriate to business disputes.' None but .the very rich or the legally-aided very poor

can afford such a pace. That.is .why the efforts of specialist commercial judges to improve

their through-put, including by the adoption of novel techniques, is to be welcomed.

Other ideas deserve 'exploration but cannot be.:elaborated here. They involve the

creation of a specialised panel of arbitrators, including -some who have international

reputations, ror use in arbitrations' of trans' bord'er disputes; the improvement of

Antipodean procedures fpr ~I;>itration which have tended to replicate ·court" hearings ..

without the advantng~ "th~; o[fer·;'-::~nd the use of· 'r~trred judges for the purpose of

arbitrations of this kind. The growth in the size of superior courts in Australia and New

Zealand and the CUrrent depresseq levels of judicial salaries in both countries, have tended

to result in appointment of judges at much earlier ages than in times gone by. It seems

likely to me that these comparatively

upon reaching the minimum age

young judges will retire,

for the receipt of

in increasing

a judicial

numbers.

pension.

- 21 -

In ,Australia, this is normally at the age of 60 after ten years of service. The backlog in

the, courts and the desire of some people for the privacy nnd i"nform:ality of arbitration,

including international arbitration' will almost certainly encourage the 'use of what has

been called in'-the United States lrent-a:"'judge'.63 -This is not "necessarily a bad thing.

Particularly if a skilled arbitrator can demonstrate expertise in a given areaaf law and

business 'practice arid can, enjoy the confidence of all parties, his jUdgment may be more

satisfactory in· the resolution'of 'a'bUsiness dispute, than the order of a court, commercial

or otherwise, in Sydney or Auckland."':".

CONCLUSIONS

The CER Agree,l1.1ent ,is' designed to' promote' increased trade between' Australia

~d New Zealande IncreaSed "trade-will ,mean, inevitably,more disputes. ~here appears to

be no 'realistic-pOssibility of establishing a neutral trans-Tasman court to which'residents

in Australia and 'New Zealand could refer their 'disputes r"r trans-national judgment by

trs'ns-natiooal judges. the Privy Council in' London, a Privy Council-of the Pacific, appeals

solely to the High Court of Australia or creation of a'trans-Tasman, Commercial Court, all

fall to the ground as unviableproposalS in 1984.

The readist solution to this pn;>blem, as to many others, is the final accession of

New Zealand to art Australasian Commonwealth. This was contemplated, 'at the federation

of the Australasian colonies ,in --:1901~Although there are constitutional problems in the

_way offederationj' the existence ofthe will to federation' would solve all., No-one would

suggest federation. simply to 'overcome the nice problems, of trans-Tasman, commercial

jurisdiction. But the CER Agreement may be.:.the· precursor to and catalyst for a'revival,

before it is too- late,",'of consideration -of- an appropriate form of' union' of the

English-speaking remnants· of E.mpire in the South PaciCic~

Short of this. there are things to be done. Rew Zealand has shown ambivalence

and inactivity in the creation of s'specialist commercial court; N~merous excuses have

been off~red.. Meanwhile, Sydney and Melbourne, and to some extent the Fp.deral Court of

Australia, have begun to offer greatly improved procedures for the resolution of business

law disputes in a quicker and more cxP€'rt jurisdiction. Unless New Zeaiand" is willing to

abandon this business to Sydney and Melbourne, it must give thought to the creation of a

competing commercial list in its High Court. Otherwise it would seem inevitable that

patriotism will be set aside and business on both sides of ,the Tasman in eER disl'utes will

assign their resolution to the enhanced facilities offered. particularly in Sydney.

- 21 -

In ,Australia, this is normally at the age of 60 after ten years of service. The backlog in

the- courts and the desire of some people for the privacy nnd i"nformality of arbitration,

including international arbitration- will almost certainly encourage the 'use of what has

been called in--the United States 'rent-a:...judge'.63 -This is not -necessarily a bad thing.

Particularly if a skilled arbitrator can demonstrate expertise in a given area of law and

business 'practice arid can- enjoy the confidence of all parties, his judgment may be more

satisfactory in· the resolution-of 'a'bUsiness dispute, than the order of a court, commercial

or otherwise, in Sydney or Auckland. "':".

CONCLUSIONS

The CER Agree,11.1ent -is' designed to- promote- increased trade between' Australia

~d New Zealand. IncreaSed "trade -will ,mean, inevitably, more disputes. ~here appears to

be no 'realistic-pOssibility of establishing a neutral trans-Tasman court to which'residents

in Australia and 'New Zealand could refer their 'disputes f?r trans-national judgment by

trs'ns-natiooal judges. The Privy Council in- London, a Privy Council- of the Pacific, apl?eals

solely to the High Court of Australia 61." creation of a 'trans-Tasman' Commercial Court, all

fall to the ground as unviableproposals in 1984.

The readist solution to this pn;>blem, as to many others, is the final accession of

New Zealand to an Australasian Commonwealth. This was contemplated -at the federation

of the Australasian colonies-in ':1-901. Although there are constitutional problems in the

-way of federation;- the existence of the will to federation -would solve all.- No-one would

suggest federation. simply to 'overcome the nice problems, of trans-Tasman' commercial

jurisdiction. But the CER Agreement may be.·.the· precursor to and catalyst for a'revival,

before it is too- late," of consideration -of- an appropriate form of union' of the

English-speaking remnants· of E.mpire in the South PaciCic~

Short of this. there are things to be done. N'ew Zealand has shown ambivalence

and inactivity in the creation of s- specialist commercial court; N~merous excuses have

been off~red. Meanwhile, Sydney and Melbourne, and to some extent the Fp.deral Court of

Australia, have begun to offer greatly improved procedures for the resolution of business

law disputes in a quicker and more exP€'rt jurisdiction. Unless New Zeaiand" is willing to

abandon this business to Sydney and Melbourne, it must give thought to the creation of a

competing commercial list in its High Court. Otherwise it would seem inevitable that

patriotism will be sct aside and business on both sides of ,the Tasman in eER disl?utes will

assign their resolution to the enhanced facilities offered. I?articularly in Sydney.

- 22 -

To the suggestion that there is neither the talent nor range of legal experience

in New Zealand, the answer must be given that until the facility is provided,there will be

no opportunity forsltchtalent' to be honed and experience to be.gained.-To th~ suggestion

that the~e is insufficient business in Wly one particular centre of New Zealand, the answer

is offered that the aeroplane circuit and the use of telecommunications and written'~"',

arguments prese."t opportunities for bringing expert cost-effective justice to the service

of the .business. community which wiU~,other\'yis.e look elsewhere.

In fact, a good commercial judge will offer th,e,~ost-intensiveseryices of the

court not in competition with other' facilities but to supplement :them in are~ where

~urts can do a better job than trade associations, arbitratorS, assessors, referees' and

court-appointed experts•.~ symbiotic ,relationship 'between· the courts, adhering to their

proper expert role and these supplementary instrume,nts.of' dispute·resolution.,must be

worked out.. Such a relationship is now being developed in a mostinnovative':way in Sydney

by the judge there in charge of the commercial list of the Supreme·Cputt. Courts do some

things b~tter than other institutions of djspute resolution. The task in the decad~ ahead

will be to clarify what courts do better and to ,seek to enhance the. rol~ of other

institutions where courts are'less useful - 'whether for reasons of· lack of expertise,

endemic formality, rigid rules of evidence, the forrnalisr:n of lawyers and the like.

In the context of the CER' Agreement, consideration needs to be given to

supplementing the formal' court with a pool of internati'onally accepted and highly skilled

arbitrators. Som.e of these may be retired jUdges. Some 'may not-be lawyers at aU. But it is

my hope that our courts,.' jUdges and lawyers will find a useful role ministering to the

improved relationship between Australia and New Zealand. The 1200 reasons for our legal

separation have become little .mOre than two. hours in an armchair on n windy day and less

than a second as computers chatter away to computers via satellite. The physical distance

has been bridged. But can our hearts and minds catch up?

'~"".

- 22 -

To the suggestion that there is neither the talent nor range of legal experience

in New Zealand, the answer must be given that until the facility is provided, there will be

no opportunity for such truent'to be honed and experience to be.gruned.-To th~ suggestion

that the~e is insufficient business in Wly one particular centre of New Zealand, the answer

is offered that the aeroplane circuit and the use of telecommunications and written

arguments prese."t opportunities for bringing expert cost-effective justice to the service

of the .business. community which will _.other\.Yis.e look elsewhere.

In fact, a good commercial jUdge will offer th.e.~ost-intensive seryices of the

court not in competition with other facilities but to supplement :them in are~ where

~urts can do a better job than trade associations, arbitratorS, assessors, referees and

court-appointed experts •. ~ symbiotic .relationship ·between· the courts, adhering to their

proper expert role and these supplementary instrume.nts. of dispute ·resolution. must be

worked out. Such a relationship is now being developed in a most innovative'"way in Sydney

by the judge there in charge of the commercial list of the SUpreme,Cpurt. Courts do some

things b~tter than other institutions of djspute resolution. The task in the decad~ ahead

will be to clarify what courts do better and to ,seek to enhance the. rol~ of other

institutions where courts are . less useful - 'whether for reasons of· lack of expertise,

endemic formality, rigid rules of evidence, the forrnalisr:n of lawyers and the like.

In the context of the CER' Agreement, consideration needs to be given to

supplementing the formal' court with a pool of internati"onally accepted and highly skilled

arbitrators. Som.e of these may be retired judges. Some'may not-be lawyers at aU. But it is

my hope that our courts,.' judges and lawyers will find a useful role ministering to the

improved relationship between Australia and New Zealand. The 1200 reasons for our legal

separation have become little .mOre than two. hours in an armchair on n windy day and less

than a second as computers chatter away to computers via satellite. The physical distance

has been bridged. But can our hearts and minds catch up?

- ~3-

FOOTNOTES

-. Chairman of the Australian Law Reform Commission. JUdge of the Federal

Court of Australia. The views expressed are personal views only. The author

~~knowledges the suggestions of Justice Andrew Rogers of the Supreme Court

of-New South Wales concerning the latter part of this paper.

L. For details on the Closer Economic Relations Agreement between Australia and

New'-Zealand, see Australian Fo"reign .,,"Hairs Report, February 1983, 59.

:2. MDKi~by, 'GER ~ A __Trans-Tasman Cour.t?' in NZ Legal Research Founcation,

CER - The Business and Law Essentials, Uni of Auckland, 1983, Part I; 18. See

summary [l983J NZLJ 303.

....;...

3. Article I(a).

4. Article 12(1).

5. Article 22(3).

6. Cf M Cohen, The Regime of Boundary Waters -, The Canadian-United. States·-·

Experience'in Collected Courses of the Hague Academy of International Law,

1975, ill, Vol 146, 219, 267ff.

7. Dr G Palmer, reported NZ Herald 24 August 1982.

8. Australian Foreign Affairs Report, February 1983, 59.

9. Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals

from the High Court Court) Act 1975· (Cth).

10. Reported Sydney Mo·rning Herald II July 1983, 8.

11. \VD Baragwanath, 'The Privy Council' [19831 NZ Recent Law 4l4.

12. T Tuivaga, 'A Regional Court of Appeal for the PaCific', Paper for the Fifth

South Pacific Judicial Conference. ~lay 1982, 171., See also AM Finlay, '.4. Court

of Appeal (or the South Pacifico, Regi'on' in ~CQr1Ventiori. :-Papers, First Fiji Law

Coovention. 1974; 6.

- ~3-

FOOTNOTES

-. Chairman of the Australian Law Reform Commission. Judge of the Federal

Court of Australia. The views expressed are personal views only. The author

~~knowledges the suggestions of Justice Andrew Rogers of the Supreme Court

of-New South Wales concerning the latter part of this paper.

1. For details on the Closer Economic Relations Agreement between Australia and

New'-Zealand, see Australian Fo"reign • .\ffairs Report. February 1983, 59.

:2. MD Ki~by, 'eER ~ A __ Trans-Tasman Cour.t?' in NZ Legal Research Founcation,

CER - The Business and Law Essentials, Uni of Auckland, 1983, Part I; 18. See

summary [I983J NZLJ 303.

. ... ;...

3. Article I(a).

4. Article 12(1).

5. Article 22(3).

6. Cf M Cohen, The Regime of Boundary Waters -. The Canadian-United. States·-·

Experience'in Collected Courses of the Hague Academy of International Law,

1975, ill, Vol 146, 219, 267ff.

7. Dr G Palmer, reported NZ Herald 24 August 1982.

8. Australian Foreign Affairs Report, February 1983, 59.

9. Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals

from the High Court Court) Act 1975· (Cth).

10. Reported Sydney Mo·rning Herald 11 July 1983, 8 . . ....... .,..-

11. \VD Baragwanath, 'The Privy Council' [19831 NZ Recent Law 4l4.

12. T Tuivaga, 'A Regional Court of Appeal for the PaCific', Paper for the Fifth

South Pacific Judicial Conference y ~lay 1982, 171., See also AM Finlay, 'A Court

of Appeal for the South Pacifico, Regton' in ~CQrlVentiori. __ Papers, First Fiji Law

Coovention, 1974. 6.

... ,'-.

- 2-1 -

13. See Nauru (High Court Appeals) Act 1976 (Cth).

14. In 1949 Newfoundland was admitted to Canada as the tenth Province. However,·

Newfoundland had never adopted the- Statute of Westm~nster 1931 and had

relinquished its dominion §tatus before the referenda leading to incorporation.

15. "This Yo'ElS pointed out by J..K McLay in his comments on the au!hor's paper now

published in the Legal Research Foundation seminar papers.

16. This was pointed out_by Mr McLay.

17. Cf New Zealand, Report of the Royal Commission on Federation, NZPP, 1901.

18. McLay, 3.

19. ibid, 1.

20. Comments by G Palmer, ibid. See [1983] Reform ISS.

21. NZ Herald, 25 July 1983.

22. Melbourne Age, 26 July 1983.

23. AUckland Star,25 July 1983.

24. Nelson Mail, 6 August 1983.

25. Waikato Times, 26 July 1983.

26. ·Sydney :vIoming Herald, 27 July 1983.

27. NZ Evening Post, 28 July 1983.

28. NZ Listener. 13 August 1983.

29. PO-McGuinness, Address to the New Zealand National Press Club, Wellington, 9

August 1983, mimeo.

30. Australian Financial -ReView, 16 August 1983.

~L NZ Herald. 20 AUi!Ust 1983.

..-:: .

.. ,.-.

- 2-1 -

13. See Nauru (High Court Appeals) Act 1976 (Cth).

14. In 1949 Newfoundland was admitted to Canada as the tenth Province. However,·

Newfoundland had never adopted the- Statute of Westm~nster 1931 and had

relinquished its dominion ~tatus before the referenda leading to incorporation .

15. "This Yo'ElS pointed out by J..K McLay in his comments on the au!hor's paper now

published in the Legal Research Foundation seminar papers.

16. This was pointed out_by Mr McLay.

17. Cf New Zealand, Report of the Royal Commission on Federation, NZPP, 1901.

18. McLay, 3.

19. ibid, 1.

20. Comments by G Palmer, ibid. See [1983] Reform ISS.

21. NZ Herald, 25 July 1983.

22. Melbourne Age, 26 July 1983.

23. Auckland Star,25 July 1983.

24. Nelson Mail, 6 August 1983.

25. Waikato Times, 26 July 1983.

26.

27.

28.

29.

30.

. "H.

·Sydney !VIoming Herald, 27 July 1983.

NZ Evening Post, 28 July 1983.

NZ Listener. 13 August 1983.

PO-McGuinness, Address to the New Zealand National Press Club, Wellington, 9

August 1983, mimeo.

Australian Financial -Review, 16 August 1983. :.- .

NZ Herald. 20 AUi!Ust 1983 .

'.-::- .

-:!5 -

34. ibid.

32~ JD Anthony, reported :\olelbourne~,10 January 1984, 5.

.. '~

Garran, Annotated Constitution of the AustralianPerry, 7. See J Quick & R

Commonwealth, 1901, 107w

37.

33. As reported in the Auckland Star, 3 January 1984. See comments of Mr W

Cooper, reported Auckland Star, 3 January 1984.

;l5. CfJustice fan Barker, Address to Annual Dinner, Australasian Universities Law

Schools' Association, 1983, mimeo, 13.

:36.. ·Dij, Perr'y, New Zealand .: 'A 'New State" Under Section 121 of the

Commonwealth Constitution? Monash University, November 1983, mimeo.

38.. MeL'ay, 0:18, 8..

39w ibid, 9.

40. id, 9.

41. Commercial Causes Act 1903 (NSW).

42. Ll!?yds of London ~r.,~, London, 198-3.

43. EW Thomas, The Courts Delays: Commer-cial Cases', Paper for the Auckland

Chamber of Commerce, July 1982, mimeo, 12. Cf by the same author,

Memorandum to the Minister of Justice including explanatory note relating to

legislative measures for the more expeditious disposition of commercial

litigation.

44. See Lockhart ,~.i~ Ertzed ~oldings Limited & Ot'S v Wynthea Pty Lim-he<:! &:: OI'S.

unreported,- Federal Court or" Australia, 26 Marefi 1984 (WAG 39 of 1983).

45. New Zealand, Ccntract~,&Canfmercial Law Reform Committee, Repor1 No, 17,

Carom ercial Causes, 19.74, para 2 (page 2).

46. New Zealand Law Society, First Submission to the Royal Commission on the

Courts. :>Iarch 19n, para 6.27 (page 331.

-:!5 -

32. JD Anthony, reported :\Olelbourne~, 10 January 1984, 5.

33. As reported in the Auckland Star, 3 January 1984. See comments of Mr W

Cooper, reported Auckland Star, 3 January 1984.

34. ibid.

;l5. Cf Justice fan Barker, Address to Annual Dinner, Australasian Universities Law

Schools' Association, 1983, mimeo, 13.

-36.. ·ur·,r Perry, New Zealand .: -A 'New State" Under Section 121 of the

Commonwealth Constitution? Monash UniVersity, November 1983, mimeo.

37. Perry, 7~ See J Quick & R Garran, Annotated Constitution of the Australian

Commonwealth, 1901, 107. -.,''''

3S.. McL'ay, n-18, 8.

39. ibid, 9.

40. id, 9.

41. Commercial Causes Act 1903 (Nswl.

42. Ll,?yds of London ~r.,~, London, 19B-3.

43. EW Thomas, The Courts Delays: Cammer-cial Cases', Paper for the Auckland

Chamber of Commerce, July 1982, mimeo, 12. Cf by the same author,

Memorandum to the Minister of Justice including explanatory note relating to

legislative measures for the more expeditious disposition of commercial

litigation ..

44.. See Lockhar~ _~.i~ Ertzed ~oldings Limited & Ot'S v Wynthea Pty Lim-he<:! & OI'S.

unreported,- Federal Court or" AUstralia, 26 Marefi 1984 (WAG 39 of 1983).

45. New Zealand, Ccntract~_ &:: Confmercial Law Reform Committee, Repor1 No, 17,

Comm ercia1 Causes, 19.74, para 2 (page 2).

46. New Zealand Law Society, First Submission to the Royal Commission on the

Courts. :>Iarch 19n. para 6.27 (page 331.

-:26 -

47. New Zealand, Report of the R·~val Commission on the Courts, Rec 7 (page 97).

48. See.EW Thomas, n 43 above.

49. L Sealy, The Business Community: Is it Being Served?" Paper for the 1984 New

Zealand Law Cooference, 1.

50. - See 1\-1...'\ McPhee, 'A 'Time Window' Could Open to Opportunity' in NZ Herald,S

September 1983. -;,-.

51. ADCoiman, The-.'Practice and Procedure of the Commercial Court, n 42,19.

51. id,20.

53. Be~ttie J cited Thomas, n 43,21.

54. See report, Canadian Bar Association, National, July 1983, 3.

55. See eg 'Videotaped Murder Trials in Ohio' in Trial, May 1982, Vof 68, 536. The

possibility is discussed in MD ~{irby, The Judges, Boyer Lectures 1983, ABC, 75f.

56. See Police Administration Act 1978 (NT); Australian Law Reform Commission,

Criminal Investigation (ALRC 2),1975, Interim, 1'28f.

57. Rogers J in Maschinenfabrik Augsberg-Nurnberg' Aktiengesellschaft v Altikar

Pty Limited, unreported, SUpreme Court of New South Wales, 4 August 1983,

mimeo(No 15094 of 1982), 1-2.

58. ibid, 2-3.

59. See note 'Commercin.l List - Supreme Court', NSW Law Society Journal.

December 1983, 548.

60. ibid, 549.

61. Cf· Barwick CJ (dissenting) in Bucklev v Bennell Design &. Constructions Pty

Limited (1977-78), 140 CLR 1, 6 ('Courts of first instance need, in my opinion,

to 6-e chary of dividing a case ...').

;'- .

-:20 -

47. New Zealand, Report of the R·~val Commission on the Courts, Rec 7 (page 97).

48. See.EW Thomas, n 43 above.

49. L Sealy, The Business Commtmity: Is it Being Served?', Paper for the 1984 New

Zealand Law Conference, 1.

50. . See 1\-1...1\ McPhee, 'A 'Time Window' Could Open to Opportunity' in NZ Herald, 5

September 1983. -;.-.

51. AD Colman, The .. ·Practice and Procedure of the Commercial Court, n 42, 19.

51. id,20.

53. Be~ttie J cited Thomas, n 43,21.

54. See report, Canadian Bar Association, National. July 1983, 3.

55. See eg 'Videotaped Murder Trials in Ohio' in Trial, May 1982, Vot" 68, 536. The

possibility is discussed in MD ~{irby, The Judges, Boyer Lectures 1983, ABC, 75f.

56. See Police Administration Act 1978 (NT); Australian Law Reform Commission,

Criminal Investigation (ALRC 2), 1975, Interim, 1'28f.

57. Rogers J in Maschinenfabrik Augsberg-Nurnberg' Aktiengesellschaft v Altikar

pty Limited, unreported, SUpreme Court of New South Wales, 4 August 1983,

mimeo(No 15094 of 1982), 1-2.

58. ibid, 2-3.

59. See note 'Commercin.l List - Supreme Court', NSW Law Society Journal.

December 1983, 548.

60. ibid, 549.

61. Cf· Barwick CJ (dissenting) in Bucklev v Sennell Design &. Constructions Pty

Limited (1977-78), 140 CLR 1, 6 ('Courts of first instance need, in my opinion.

to 6'e chary of dividing a case .. .').

;'- .

- 27 -

62. :he role of assessors is laid down by a number of authorities. See Richardson v

Redpath Brown & Co [19441 AC 62, 70; Adhesives Pty Limited v Aktieselskabet

Dansk Gaeringsindustri & Anor (1934-35) 55 CLR 523, 529. See also the letter

of Rogers J to the President of the NSW Bar Association, unpublished, 7

February 1984, setting our proposals for the use of experts and/or assessors in

c~es of a complex and technical nature, made available to the author.

63. R MillikinJ'Where the Rich Can Rent a JUdge', National Times, B March 1981,

18.

• ••"-00

.....~.

- 27 -

62. :he role of assessors is laid down by a number of authorities. See Richardson v

Redpath Brown & Co [19441 AC 62, 70; Adhesives Pty Limited v Aktieselskabet

Dansk Gaeringsindustri & Anor (1934-35) 55 CLR 523, 529. See also the letter

of Rogers J to the President of the NSW Bar Association, unpublished, 7

February 1984, setting our proposals for the use of experts and/or assessors in

c~es of a complex and technical nature, made available to the author.

63. R Millikin, 'Where the Rich Can Rent a JUdge', National Times, B March 1981,

18.

. .. "-

..... ~.