The New Zealand Judiciary, the roll of which after a century and a quarter still carries fewer than 70 names, dates from 10 January 1842 when the first Judge of the Supreme Court in the infant colony took the oaths of office. He was William Martin, M.A., of Cambridge, and the Inner Temple, who had been appointed by the Colonial Office in London to be Chief Justice of New Zealand. The Supreme Court of New Zealand was barely three weeks old, having been established by Ordinance (No. 1) at the second session of the new Legislative Council. Up to that time New Zealand law had been the law of the Supreme Court of New South Wales, and justice had been administered by the holders of Commissions of the Peace. Of this period before the Supreme Court was ready to function, Sir John Logan Campbell wrote in Poenamo, “Very primitive were our ways. We had parsons without churches and magistrates without Courts; but we scrambled through our divinity and law somehow”. New Zealand's white population at this time was approximately 10,000, with about six times as many Maoris.
Ordinance (No. 1), dated 22 December 1841, marked the end of the authority of the Supreme Court of New South Wales in New Zealand. Clause 2 provided that the new Court should “have jurisdiction in all cases as fully as Her Majesty's Courts of Queen's Bench, Common Pleas and Exchequer at Westminster” and “be a Court of Oyer and Terminer and Gaol Delivery, and Assize and Nisi Prius.” Other clauses included equity, probate, and lunacy. (All have been repeated in enactments conferring jurisdiction ever since, and form part of the present Judicature Act.) The legal connection with New South Wales was completely severed in March 1842 when all ordinances of that territory in force in New Zealand were repealed and declared to be of “no force or effect whatever in the Colony”. Rules of practice for the new Court came next. These were drafted by Martin and William Swainson, the colony's second Attorney-General, who had travelled out to New Zealand together – “English lawyers, imbued with English spirit, and eager to relieve the Colony from the baneful influence of a convict code”, as Swainson put it in later years.
On 26 December 1843 Henry Samuel Chapman, of the Middle Temple, took office as a second Judge and, in January of the following year, “Rules and Forms Touching the Practice of the Supreme Court of New Zealand, Settled and Approved by William Martin C.J. and H. S. Chapman J.” were approved and gazetted. These were added to, with the effect of statute, on 2 May 1844 and 12 May 1845.
Meanwhile, the inaugural sitting of the Supreme Court had been held by the Chief Justice in Auckland in the third week of February 1842, the first case called being a murder charge against a young Maori chieftain, Maketu, who was subsequently hanged.
Provision for the appointment of further Judges was made in a new Supreme Court Ordinance (Session III, No. 1) in January 1844, such Judges as were appointed to hold office only during Her Majesty's pleasure. This arrangement, which could mean that the judiciary in certain circumstances might be subject to political influence, was hardly satisfactory to the Judges, but it persisted throughout the whole of the term of the two then Judges, and was not repealed until the Supreme Court Judges Act 1858, which ensured the independence of the judiciary by providing that Judges would hold office during good conduct instead of during the Queen's pleasure.
In those early days, as Mr Justice Chapman has recorded, there was “no appeal or writ of error from one Judge to the other – for that would be inconsistent with the spirit of English law”. A Full Court must await the appointment of another Judge. But in 1846, a quaint “Court of Appeals” was established. It comprised the Governor and the Executive Council, but with the exclusion of the only lawyer on the Council, the Attorney-General. Its function was to hear appeals from the Supreme Court, “only for error of law apparent in the record”: Supreme Court Amendment Ordinance (Session VII, No. 3). It is doubtful whether the “Court” ever operated, as its jurisdiction was always suspect, and it is clear from one appeal at least that the Attorney-General preferred the Privy Council to his lay colleagues. (See The Queen v. Clarke (1851) N.Z.P.C.C. 516.)
On 15 September 1862, however, the Court of Appeal Bill was passed by both Houses without apparent discussion, and on 10 February 1863 the Chief Justice, Sir George Arney, presided over the first sitting, which was held in Christchurch. With him he had H. B. Gresson, Johnston, and C. W. Richmond, J.J. The Court held its first Wellington sitting in October of the same year, went to Dunedin in 1864, but did not reach Auckland until later. That Court survived for 95 years until the passing of the Judicature Amendment Act 1957, when it was replaced by a permanent separate Court of Appeal under the presidency of Sir Kenneth Gresson, with two other members, Mr Justice North and Mr Justice Cleary. (The Chief Justice, Sir Harold Barrowclough, is an ex officio member of the Court.) Several generations of practitioners had campaigned for the setting up of such a Court, and its inaugural sitting on 17 February 1958 was one of the milestones of legal history in New Zealand.
By the time the original Court of Appeal was established, the judiciary had changed its personnel entirely. Sir William Martin, who was knighted only after his resignation in 1857, had returned in poor health to England; Mr Justice Chapman had resigned and crossed the Tasman in 1852; and two other Judges, S. Stephen, J., and D. Wakefield, J., who had been appointed in the fifties, had died within a week of each other in 1857. There had been four new appointments, Arney, C.J. (1858), Gresson, J. (1857), Johnston, J. (1858) and Richmond, J. (1862), and it was these four who comprised the first Court of Appeal.
Only seven other appointments were made to the Bench in the nineteenth century. These included two Chief Justices – Sir James Prendergast (1875–99) and Sir Robert Stout (1899–1921), and Sir Joshua Williams, who sat as a puisne Judge for 39 years from 1875 until he was called to the Privy Council in 1914, one year before his death.
Since the resignation of Sir Robert Stout in 1926, only four Chief Justices have held office – Sir Charles Skerrett (1926–29), Sir Michael Myers (1929–46), Sir Humphrey O'Leary (1946–53), and Sir Harold Barrowclough (1953– ).
The first New Zealand born Judge was Sir Frederick Chapman, son of New Zealand's second Judge (1903–24). Mr Justice A. S. Adams (1921–33) was followed on to the Supreme Court Bench by his son, Sir Francis Adams, J. (1950–60), and Mr Justice H. B. Gresson (1857–75) is today represented in the judiciary by two of his descendants, Sir Kenneth Gresson, President of the Court of Appeal (grandson), appointed in 1947, and T. A. Gresson, J. (great-grand-nephew), appointed in 1956.
The New Zealand judiciary has increased both in numbers and in stature since the turn of the century, and it is certain that the steady expansion of the duties and responsibilities of office has contributed as much to the one development as to the other. A first phase could be taken as beginning in 1899 with the dignified figure of Sir Robert Stout. His colleagues, most of them schooled at the feet of such masters as Prendergast, Richmond, and Williams, comprised a notable company, learned, rock-like, serene. Denniston, Edwards, Cooper, F. R. Chapman, Sim, Hosking, and Salmond are the names that come most readily to mind.
Then a quarter of a century later there was the era of Sir Charles Skerrett and Sir Michael Myers. Skerrett, who laboured under the most crippling ill health survived only three years of office, but his successor served for 17 years. Both of them were stalwarts of the profession and the Bench, and surrounded by such familiar personalities as A. S. Adams, Reed, MacGregor, Ostler, Alpers, Blair, Smith, Kennedy, Johnston, Fair, Callan, and Northcroft, their calibre may be measured by the way they faced up to the long-term effects of post-war unrest, economic and social unease, and continual assaults on time-honoured legal conceptions, to say nothing of a Second World War and its disruptions.
Nor was the burden of the judiciary any lighter in the Sir Humphrey O'Leary period of 1946–53. The Second World War had left its mark on the law no less than on the community. What had for years been deplored as a multiplicity of statutes gave way to the dangers of delegated legislation with all its legal complications and difficulties, but Judges like Finlay, Stanton, Cooke, Hutchison, F. B. Adams, Turner, K. M. Gresson, McGregor, and Shorland – some of them still on the Bench – were equal to the task.
And that brings the record down to the late fifties and sixties of Sir Harold Barrowclough, and a company of Judges fairly evenly compounded of experience and vigour. It is probably the youngest Bench in the history of the judiciary, and it is conceivable that this contemporary school is coping successfully with the most formidable judicial task of the century.
Sir William Martin – January 1842 to June 1857, died 1880; Sir George Alfred Arney – March 1858 to March 1875, died 1883; Sir James Prendergast – April 1875 to May 1899, died 1921; Rt. Hon. Sir Robert Stout – June 1899 to January 1926, died 1930; Sir Charles Perrin Skerrett – February 1926 to February 1929, died 1929; Rt. Hon. Sir Michael Myers – May 1929 to August 1946, died 1950; Rt. Hon. Sir Humphrey Francis O'Leary – August 1946 to October 1953, died 1953; Rt. Hon. Sir Harold Barrowclough – November 1953-.
by Ronald Jones, Journalist and Script Writer, New Zealand Broadcasting Corporation, Wellington.