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PUBLIC RECORD OFFICE
Reference :-
TPETTICO.885
PUBLIC RECORD OFFICE. LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-—NOT TO
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The LORD CHANCELLOR: Are you quite certain that you quite appreciate the difficulty that you are launching into there? You see, until the Judgment is given there is nothing to appeal from,
Mr. ROSE INNES: Yes, my Lord, but after the Judgment is given, I will take it by a Court of three Judges, Judgment is pronounced by the Chief Justice; I think I am right in saying that every Judge is under an obligation to send his reasons, or to say what his reasons are for his judgment.
The LORD CHANCELLOR: That, as a rule, is given with the Judgment itself. Until the Judgment is given, there is nothing to appeal from.
Mr. ROSE INNES: With great respect, the reasons are given afterwards by the Judge. The reasons of the Chief Justice and the Court may be given, but the other members of the Bench very often, to my own knowledge, claborate the reasons why they arrive at the decision they gave.
The LORD CHANCELLOR: I do not answer for it; you know better than I what happens in your own country, but there is no such thing as that that I am familiar with.
Mr. ROSE INNES: Do not these reasons come up to the Judicial Committee of the Privy Council ?
-The LORD CHANCELLOR : The Judgment, as it is called-you know, we lawyers have a technicality on the subject the Judgment itself is one thing, and the reasons given for the Judgment, although they are popularly called the Judgment, are another thing, but the judgment generally follows the reasons given; the reasons given do not 'follow the judgment.
Mr. ROSE INNES: Well, of course I speak with deference on that point.
The LORD CHANCELLOR: However, it is not very important except in this respect, that you say there ought to be some mode by which the question which is determined should be determined within a limited time of the hearing.
Mr. ROSE INNES: That is my point.
Sir JAMES PRENDERGAST: My Lord, that cannot be said to be a grievance with regard to the Privy Council, and that referred to by Mr. Rose Innes is a detail. Any interest which has been taken in this question in New Zealand has arisen, I think, from a valuable suggestion that our Appeals might go to Australia. That of course would not be satisfactory to New Zealand. We desire that our Appeals should be to England, where there is a good deal of probability of good men being selected for the Tribunal. We do not see any advantage which is alleged to occur from the selection of men from other Colonies. We do feel that recent Judgments in Appeals to the Judicial Committee of the Privy Council have apparently gone wrong from misinformation, that is apparently a want of information at the Bar in arguing the cases. Well; we have no reason to suppose that that difficulty would be got over by having a gentleman on the Bench from Australia or from Canada, nor do we think that the Privy Council as a legal Tribunal is likely to be strengthened by the selection even of a Judge from New Zealand. That is what we feel. We feel that Australia and the Cape and Canada would not feel any special confidence in the Privy Council because a gentleman was sitting from those Colonies; so in the same way we think we should have no greater confidence in the Privy Council than we have if a gentleman was serving from other Colonies. On the contrary, we think it is a practical question. The best men are likely to be got from England. As a political matter there may be reasons why the Colonies should be pleased, or whatever the right expression is, by the selection of a Judge from the Colonics. How that is to be done without there being some political matter which would be indispensable I do not know, it would be a great difficulty all the same. Moreover, there is the question which has been referred to, about any person in New Zealand whom we should select to put on the Bench that it should be a permanent appointment, and that there should not be the slightest suspicion of any hope of advantage or fear of
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disadvantage. The question of payment would be one of very serious difficulty. I feel safe in saying that we do not see any advantage in the appointment of a person to the Privy Council as a Judge because he happens to have some general Colonial experience. I understand it may be taken for granted that we were not asked as to whether the House of Lords should remain as the Tribunal for all matters for which it is the Tribunal-English, Irish, and Scotch Appeals-or whether the Privy Council should be maintained as the Tribunal for Colonial Appeals, including India. I understand from your Lordship, we are not to go into questions of the House of Lords. No doubt there are difficulties there which would make it undesirable that there should be any interference with the present system of the present division. We think, I think I may say that we think, that the more the Privy Council could remain in its system and in its constitution a legal Tribunal the better. There are matters of procedure, matters in connection with procedure, which I think might be referred to on this occasion or on some other occasion, and also this question of giving the reasons separately. There is, I think, an opinion amongst a good many of us in New Zealand that the system in the House of Lords by which the Judges give their reasons is much more likely to be satisfactory to the litigant. However it may be unsatis- factory for the legal profession, undoubtedly it is an advantage to have one set of reasons given for a Judgment. The profession knows that on more than one occasion the reasons given in the House of Lords are sometimes somewhat antagonistic, and it is sometimes difficult to extract the real reason in every appeal or on occasions. I think I may say it is difficult in regard to the House of Lords to extract the real reason for the conclusion arrived at. But still there are great advantages in that form of procedure with regard to Judgments. We think, especially where those little local matters are concerned, that it is more likely that the litigant would be satisfied that this local peculiarity has been dealt with when the reasons are given separately by the different Judges. With regard to costs a good many of us-some of us think-the practitioners in New Zealand think that the appellant is put into a position of unfair advantage in prosecuting an appeal to the Judicial Committee of the Privy Council because, speaking at any rate as compared with the costs in New Zealand, as the costs are unnecessarily large. We think that it might well be considered whether there night not be any attempt to reimburse the successful party, but that there should be some lump sum-something like the system of a lump sum by which appellants would then know what the result was likely to be if there was a failure or if they attained a success. I have already mentioned one matter, this question about local Bars, we sec a difficulty about that, that there sometimes would appear to happen some small matter which ought to have been easily explained, and would have been easily explained if it had been anticipated that it has not been known to the Bar. and there- fore the Bench has apparently been misled. I am not prepared to cite instances at this moment, but I think I could give instances of that sort. That seems to be a difficulty arising from the Counsel not being fully acquainted with all the detail of the Bar. I do not know, my Lord, that there are any other matters that I need refer fo. In common with the profession generally, both here and elsewhere, the Judical Committee of the Privy Council is always looked upon as a highly satisfactory Tribunal, but we do not think it would be strengthened by the selection of gentlemen either from the local Bench or the local Bar.
Mr. WILLIAM BOASE MORCOM, K.C., M.L.A. (Natal): The views which Natal entertains with reference to the Judicial Committee of the Privy Council are, I think, that there should be some amendment in its constitution which would bring it more into touch with colonial legal thought and sentiment and practice. One of the remarks made by Sir James Prendergast as to the Judicial Committee of the Privy Council having gone wrong in their Judgments, and that the Bar is to blame for not setting them right on those points, is a strong argument for strengthening the Privy Council by the addition of legal gentlemen who have colonial experience and some knowledge of colonial law. That is the point which Natal feels most strongly, and which I wish especially to present to the Conference here. The difficulty as to the permanent appointment of officials might be met, in the opinion of Natal, by the appointment of Judges of that Colony to occupy scats on the Judicial Committee of the Privy Council for a fixed period. It might be in rotation for a period of one year, it might be for a period of five years or some period not too long to take the Represen- tatives, so to speak, out of touch with the people, the sentiment, the legislation, and the general practice of the particular Colony which they represent. It is felt that in the Colonies where Roman Dutch law is administered it would be of great advantage
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