Chapter 1 - The legislative landscape

The Judicature Act 1908

The Judicature Act 1908 is one of the sources of the New Zealand constitution. Together with the Supreme Court Act 2003 and the District Courts Act 1947, it provides the statutory foundation for the primary courts of the New Zealand judicial system.

The Judicature Act 1908 began life as a consolidation statute, amending and consolidating the law relating to the Supreme Court (the forerunner of today’s High Court) and the Court of Appeal.1 Section 16 of the Act recognises and affirms that the High Court has “all the jurisdiction which it had on the coming into operation of this Act and all judicial jurisdiction which may be necessary to administer the laws of New Zealand.” By virtue of the earlier provisions of the Supreme Court Acts of 1860 and 1882, the High Court has all the jurisdiction possessed by the superior courts in England at the time the 1860 Act came into force.

The Act divides the courts into inferior and superior courts. Section 2 of the Act provides that an inferior court is “any Court of judicature within New Zealand of inferior jurisdiction to the High Court”. By implication, the superior courts are the High Court, the Court of Appeal and the Supreme Court.

Until the enactment of the Constitution Act 1986, the Judicature Act 1908 also contained provisions guaranteeing judicial tenure and financial security.2

The Judicature Act 1908 has been amended more than 40 times since its enactment. The Act is divided into parts as follows:

(a)Part 1, which relates to the constitution, jurisdiction, practice, procedure, judges and officers of the High Court;

(b)Part 1A, which contains special provisions applying to certain proceedings in the High Court and the Federal Court of Australia;

(c)Part 2, which relates to the constitution and jurisdiction of the Court of Appeal;

(d)Part 3, which is entitled “rules and provisions of law in judicial matters generally”, and covers a range of broadly court-related matters.

Section 51 of the Judicature Act 1908 authorises the making of rules regulating the practice and procedure of the High Court in all civil proceedings. The High Court Rules are set out in Schedule 2 to the Judicature Act 1908. They are developed by the Rules Committee,3 and are made by the Governor-General, with the concurrence of the Chief Justice and any two or more members of the Rules Committee (at least one of whom must be a judge).4

Section 51C of the Act also contains a power to make rules for the Supreme Court, the Court of Appeal, and for the criminal jurisdiction of the High Court. The Court of Appeal Rules were appended as Schedule 3 to the Act until 1974, but are now statutory regulations.5

Judicature Amendment Act 1972

The Judicature Amendment Act 1972 was enacted to create a new and simplified procedure for judicial review which would avoid the procedural complexities surrounding the use of common law prerogative writs,6 and to avoid the injustices which resulted from a plaintiff having selected the wrong remedy.7 It provides a statutory basis for judicial review in New Zealand, allowing the High Court to review the exercise of a statutory power.8

The Judicature Amendment Act 1972 is an unusual amending statute in that it must be read together with and is deemed part of the Judicature Act 1908,9 but it stands alongside it, rather than just resulting in amendments to the principal Act. Because of its status as an amending statute to the Judicature Act 1908, it falls under the umbrella of this review. However, the Commission has not been asked to consider the substance of the Judicature Amendment Act 1972. Any such review would be a significant and complex task, and would warrant a reference of its own. Our remit is limited to providing an appropriate legislative home for the statutory right of judicial review.

Spiller, Finn and Boast A New Zealand Legal History (2nd ed, Brookers, Wellington, 2001) at 209.

These sections were repealed by s 27 of the Constitution Act 1986. Equivalent provisions now appear in ss 23 and 24 of the Constitution Act 1986.

Section 51B of the Judicature Act 1908 provides for the membership of the Rules Committee.

Judicature Act 1908, s 51C.

Court of Appeal Civil Rules 2005; Court of Appeal Criminal Rules 2001.

JA Smillie “The Judicature Amendment Act 1977” [1978] NZLJ 232.

PA Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007) at [26.5].

The courts have a concurrent and wider jurisdiction under common law to review exercises of (non-statutory) public powers: McGechan on Procedure (online looseleaf ed, Brookers) at [JAIntro.01].

Judicature Amendment Act 1972, s 1.