°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.
. .. "-
..... ~.