CO885-(10-11) — Page 868

1720.

PUBLIC RECORD OFFICE

Reference :-

CO.885

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

MY LORD,

No. 686.

(NEW ZEALAND.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, February 16, 1871.

We are honoured with your Lordship's commands signified in Mr. Herbert's letter of the 11th instant, stating:--

1st. That he was directed by your Lordship to transmit to us the copy of a Despatch of the 7th December 1870 from the Governor of New Zealand, enclosing a ministerial memorandum respecting certain questions which had been raised in the Colony as to the Order in Council regulating appeals to the Privy Council and as to the constitution of the existing Supreme Court of that Colony.

2nd. That before submitting those papers to us, it was thought desirable to refer them to the Lords of the Judicial Committee of the Privy Council, in case they should think fit to make any observations upon them, and he was to transmit to us a copy of their reply.

3rd. That copies of the Order in Council, Colonial Acts, and Ordinances referred to were also enclosed for our information.

4th. That he was to request that we would favour your Lordship with our opinion upon the several questions submitted by the New Zealand ministers.

In obedience to your Lordship's commands, we have taken the several questions submitted to us into our consideration, and have the honour to

Report

That from the somewhat informal manner in which the memorandum of the New Zealand ministers is drawn up, we have had some difficulty in arriving at the exact points on which your Lordship desires our opinion. The questions, however, to be answered appear to be three, and we answer them in order:

1st. Whether the present Supreme Court in New Zealand be a continuation of the As to this, we are of old Supreme Court or an entirely new court created de novo? opinion that the true construction of the Supreme Court Act, 1860, is to make the Court dealt with under it a continuation only, with considerable alteration in its structure and functions, of the old Supreme Court.

2nd. Whether supposing the present Supreme Court to be a continuation of the old Supreme Court it is necessary or desirable to issue a new Order in Council to regulate appeals therefrom?

Brd. Whether direct appeal can or should be given from the Supreme Court or whether parties to suits in New Zealand should be obliged as a rule, first, to resort to the Court of Appeal now constituted and regulated in that country by the New Zealand Court of Appeal Act, 1862?

These two questions may conveniently be answered together, and we think that no new Order in Council is necessary, inasmuch as the power of the Queen to pass by a Colonial Court of Appeal at her pleasure, and to hear appeals direct to herself is undoubted; and, in such appeals as Her Majesty may please to entertain direct from the present Supreme Court in New Zealand the Order in Council of 10th May 1860 appears to us to lay down perfectly proper rules. But the New Zealand Court of Appeal Act, 1862, creates a fresh and probably an efficient Court of Appeal with large powers and an apparently complete and satisfactory procedure. From this Court by the Queen's undoubted prerogative an appeal lies to Her Majesty in Council, and we think it would be a very proper rule that (reserving Her Majesty's right to hear appeals direct from the Supreme Court) appeals, should in general, and as matter of ordinary practice come to this country only from the Appeal Court in New Zealand. This rule might, we think, be laid down by the Judicial Committee for its own guidar.ce and of its own authority, and would speedily become known in New Zealand. But it would be perhaps better, and certainly more respectful to the Colonial Appeal Court, that such a rule should be made the subject of a distinct Order in Council to be formally

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