Chapter 7 - The commercial list and specialisation in the High Court



The introduction of a commercial list was an incursion (albeit a limited one) into the otherwise generalist nature of the High Court judiciary. In other words, it introduced a degree of specialisation in that certain judges, and only those judges, deal with at least the preliminary matters on the commercial list. In this section, we briefly discuss the issue of specialisation and set out the arguments for and against it.

Specialisation is an increasing feature of New Zealand legal practice. Few lawyers would expect to cover the whole range of legal work, from criminal jury trials to judicial review applications to intellectual property disputes, let alone do so in the same week or even day. However, this is precisely what the High Court judiciary are expected to do.

New Zealand already has a number of specialist courts. The Employment Court, the Environment Court, the Māori Land Court and the Family Court are all well-established parts of the legal landscape in New Zealand, with specialist judges.

However, the High Court remains a court of general jurisdiction. Its judges are appointed to exercise the largest of all jurisdictions in New Zealand. Some practitioners and commentators argue that the increasing complexity of civil litigation means that greater specialisation in the High Court is required. On this view, increased specialisation would increase efficiency, as judges who are more familiar with a specific area of law will both hear the case and deliver judgment more quickly.158 It has even been suggested that litigants are wary of generalist judges, and will opt instead for alternative dispute resolution procedures such as specialist arbitration.159 In a recent study, the University of Otago Legal Issues Centre noted that anecdotal evidence suggests litigants are increasingly choosing alternative dispute resolution (ADR) over formal court procedures, despite the risks involved in forgoing trying the dispute in court, such as limited rights of appeal.160

On the other hand, the generalist nature of the High Court is one of its great strengths, and there are substantial benefits in a broader, principled approach. If the generalist jurisdiction is eroded too much, the High Court risks losing flexibility and becoming fragmented.

There are real questions as to how much specialisation is healthy or practical in a bench the size of the High Court. Formal specialisation could have the effect of excluding some judges from exercising parts of the Court’s jurisdiction entirely. There is also a danger that specialisation could constrain the development of the law, and lead to insularity, with the risk that the views of a small number of judges dominating a particular area of the law.

There are strongly divergent views in the judiciary on this issue. That in itself is a serious impediment to effective change: any proposal for change would need the support of the judiciary.

The purpose of this brief discussion about specialisation is not to argue for or against specialisation in the High Court, but to identify it as an issue, as it has a bearing on the approach to be taken to the commercial list.

Lawrence Baum “Probing the Effects of Judicial Specialization” (2009) 58 Duke Law Journal 1667 at 1676; Annette Marfording and Ann Eyland “Civil Litigation in New South Wales: Empirical and Analytical Comparisons with Germany” (2010) 28 UNSW Law Research Paper No. 2010-28 at 346.

Anthony Grant “Is the High Court’s civil jurisdiction in ‘a death spiral’? – Part 3” (2010) 153 NZ Lawyer Magazine 9.

Rachel Laing, Saskia Righarts, Mark Henaghan A Preliminary Study on Civil Case Progression Times in New Zealand  (University of Otago Legal Issues Centre, Faculty of Law, 15 April 2011).