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The 'inherent jurisdiction of the court' is a phrase that regularly appears in the judgments of our courts. It is cited as being the foundation of a multitude of powers and jurisdictions. However, the 'inherent jurisdiction of the court' is also the subject of much confusion. There is confusion about the distinction between 'inherent jurisdiction' and 'inherent powers'; confusion about which courts possess inherent jurisdiction; and confusion about the nature and scope of inherent jurisdiction and inherent powers. The Supreme Court's decision in Zaoui v Attorney-General[1] epitomises the befuddlement. The Supreme Court clearly distinguished inherent powers from inherent jurisdiction, but it then purported to exercise an 'inherent jurisdiction' to grant bail - a jurisdiction which the Supreme Court (as a statutory court) does not possess.
This article elucidates the distinction between 'inherent powers' (the powers that every court has to regulate its own procedure) and 'inherent jurisdiction' (the piecemeal jurisdictions that the Supreme Court (now the High Court) inherited from the superior courts in England). The authorities are impossible to reconcile. Reclassification is needed to untangle inherent powers and inherent jurisdiction. The High Court's inherent jurisdiction is comprised of a number of separate jurisdictions, which have developed piecemeal and mostly in isolation. There are no strong unifying features or common principles distinguishing the separate jurisdictions, apart from the historical fact that they are inherited from the superior courts in England. Inherent powers are those powers which every court possesses to enable it to give effect to its jurisdiction. Inherent powers may be exercised where necessary in the interests of justice, but they are parasitic on the court first possessing jurisdiction. This article categorises inherent jurisdiction and inherent powers, and describes their respective foundations. It endeavours to shed light on these mysterious and shadowy concepts which are so fundamental to the administration of justice, and to stem the confusion that has plagued the courts in their treatment of inherent jurisdiction and inherent powers.
'Jurisdiction' and 'power' are distinct concepts. The Laws of New Zealand defines jurisdiction as 'the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision'. [2] Jurisdiction is a substantive power to hear and determine a matter. Jurisdiction may be conferred by the statute under which the court is constituted ('statutory jurisdiction') or it may be 'inherent' in a particular court ('inherent jurisdiction').
Jurisdiction must be distinguished from 'power'. All courts possess inherent powers which are incidental or ancillary to their substantive jurisdiction. These ancillary powers are procedural, rather than substantive, in nature.[3] They enable a court to give effect to its jurisdiction,[4] by enabling the court to regulate its procedure and protect its proceedings. The existence of the ancillary powers is parasitic on the court possessing jurisdiction. These ancillary powers are 'inherent'.
The courts' treatment of inherent jurisdiction and inherent powers has been fraught with confusion and misapplication. Many of the judgments dealing with inherent jurisdiction have conflated the distinct concepts of inherent jurisdiction and inherent power. The term 'inherent jurisdiction' is often used to describe the inherent powers of a court. For example, in M v Attorney-General[5] the Court of Appeal described inherent jurisdiction as 'the exercise of an ancillary power which is not conferred by statute or by rules of court, and exists to enable the court to act effectively within its primary jurisdiction.' This statement describes the inherent powers that all courts possess. It is not a description of the inherent jurisdiction which only the High Court possesses.
Master Jacob's oft-cited definition of inherent jurisdiction has aided the confusion:[6]
the jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.[7]
This definition of 'inherent jurisdiction' better describes the inherent powers that every court enjoys, in order to function fairly and efficiently as a court. The courts have failed to clearly enunciate a clear distinction between inherent powers and inherent jurisdiction. A recent decision of the Supreme Court attempted to stem the confusion. In Zaoui v Attorney-General, the Supreme Court recognised the terminological confusion. It explained that all courts possess inherent powers to facilitate their statutory jurisdiction, but that only the High Court has inherent jurisdiction, which is an independent (common law) substantive jurisdiction. The Supreme Court cited Wylie J's decision in Department of Social Welfare v Stewart,[9] one of the few cases in which inherent powers and inherent jurisdiction are appropriately distinguished.[10] But the Supreme Court perpetuated the confusion in two ways; (1) by interchanging the terms 'power' and 'jurisdiction' when attempting to establish the distinction between them and (2) by assuming the High Court's inherent jurisdiction to determine the bail application, rather than referring it back to the High Court for a determination.
Courts are established by the authority of the Sovereign as the fountain of justice.[12] In New Zealand, this authority was first exercised by the Letters Patent of 16 November 1840 (the Royal Charter).[13] The Charter specifically empowered the Governor to constitute and appoint judges and any other officials necessary for the administration of justice. The Supreme Court was constituted by Ordinance No. 1 of the Legislative Council made on 22 December 1841. Under the Supreme Court Ordinances of 1841 and 1844, the Supreme Court was given the combined jurisdiction of the common law and equity courts in England, as well as a testamentary, lunacy, vice-admiralty, and criminal jurisdiction. The Supreme Court had exclusive jurisdiction in respect of wills, the guardianship of children and the keepers of 'idiots, lunatics, and such as being of unsound mind are unable to keep themselves and their estates'. Jurisdiction in vice-admiralty matters was withdrawn in 1846.[14]
The Supreme Court Acts of 1860 and 1862 were designed to define and extend the powers of the Supreme Court and to provide for the more speedy administration of justice. The Supreme Court Act 1860 vested in the Supreme Court the following jurisdiction:[15]
• Jurisdiction within the colony 'in all cases whatsoever as fully as Her Majesty's Courts of Queen's Bench, Common Pleas and Exchequer at Westminster, and each of such courts have or hath at the time of the passing of this Act'.[16]
• All such equitable and common law jurisdiction 'as the Lord High Chancellor of England, the Court of Chancery or any other Superior Court of Equity hath in England.'[17]
• Jurisdiction and control over the 'persons and estates of infants, idiots, lunatics and persons of unsound mind'.
• Jurisdiction and authority 'in relation to granting and revoking probate of wills and letters of administration of the effects of deceased persons ... as fully as the Court of Probate now hath in England'.
The 1860 Act describes the jurisdiction of the Supreme Court (now the High Court) as it exists today under the Judicature Act 1908.[18] Section 16 of the Judicature Act 1908 is derived from ss 4-6 of the Supreme Court Act 1860 and re-enacts, with minor rewording, s 16 of the Supreme Court Act 1882.
The first judicial body known as the 'Court of Appeal' was established on 12 October 1846 by the Supreme Court Amendment Ordinance. It is unclear whether this court actually sat before its disestablishment in 1861. The Court of Appeal Act 1862 constituted the Court of Appeal of New Zealand. The Court had original jurisdiction in civil cases over questions of special difficulty, or over questions arising in the course of proceedings in the Supreme Court and removed by consent to the Court of Appeal. It had appellate jurisdiction over certain final orders of the Supreme Court. A permanent Court of Appeal was established in 1957 by s 2 of the Judicature Amendment Act 1957.[19]
The new Supreme Court was established to replace the Privy Council as the court of final appeal for New Zealand. The Supreme Court Act 2003 established the Court and conferred its jurisdiction. The District Court is constituted by the District Courts Act 1947. Its jurisdiction in civil and criminal matters is exclusively statutory. The summary criminal jurisdiction of the District Court is conferred by s 9 of the Summary Proceedings Act 1957. There is nothing in either statute to compare with s 16 of the Judicature Act 1908.
The High Court has inherent jurisdiction as a superior court of general jurisdiction. Section 16 of the Judicature Act confers on the High Court all of the jurisdiction it had on the coming into operation of the Act, and all judicial jurisdiction which may be necessary to administer the laws of New Zealand. The Court of Appeal has held that that the wording of s 16 affirms the inherent jurisdiction of the High Court.[20]
The High Court exercises general authority over all matters of jurisdiction. It declares its own jurisdiction and controls the jurisdiction and powers of inferior courts, tribunals and public bodies. A ruling by the High Court is conclusive, subject only to rights of appeal to the Court of Appeal and Supreme Court: 'a superior court of general jurisdiction, such as the High Court of Justice, has jurisdiction to determine, subject to any provision for appeal, the limits of its jurisdiction.'[21]
A statutory court of limited jurisdiction has no inherent jurisdiction. Inferior courts, such as the District Court,[22] the Family Court,[23] the Maori Land Court[24] and the Environment Court[25] do not have inherent jurisdiction. The jurisdiction of inferior courts must be established on the face of proceeding or in some other way.[26]
There is conflicting authority as to whether Associate Judges possess inherent jurisdiction. In Franklin v Baycorp Ltd,[27] Doogue J found that the jurisdiction of Associate Judges is derived entirely from the Judicature Act 1908 and the rules of Court, and neither acknowledged that Associate Judges have the inherent jurisdiction of the High Court. But in Stephens v Stephens,[28] Holland J held that Associate Judges, within their specific jurisdiction, have the inherent jurisdiction of the High Court.[29] Holland J observed that the inherent jurisdiction of the High Court belongs to the Court, and is not personal to a judge. He considered there was no reason why an Associate Judge's jurisdiction should be restricted within the sphere of his or her specific authority.[30] If the jurisdiction was so restricted then a different result may be achieved if a Judge (rather than an Associate Judge) was presiding.[31] Doogue J's approach in Franklin is preferable. It does not make sense to say that Associate Judges have a limited inherent jurisdiction within the confines of their statutory jurisdiction. An Associate Judge will have all the inherent powers of a High Court Judge within his or her particular jurisdiction, but no inherent jurisdiction to entertain a matter outside of an Associate Judge's statutory jurisdiction.
The Judges of the Court of Appeal and the Supreme Court continue to be Judges of the High Court. Section 57(4) of the Judicature Act 1908 states that Judges of the Court of Appeal are entitled, from time to time, to sit as, or exercise any of the powers of, a Judge of the High Court. Section 20(2) of the Supreme Court Act 2003 states that every Judge of the Supreme Court continues to be a Judge of the High Court and may, as a Judge of the Supreme Court, exercise any of the powers of a Judge of the High Court. What is the effect of these statutory provisions? First, it is clear that members of the Court of Appeal, in the hearing of an appeal, may exercise the powers of a High Court Judge. Such powers may be powers which the Court of Appeal may not itself have, as occurred in Broadcasting Corporation of New Zealand v Attorney-General.[32] Secondly, the Court of Appeal may 'reconstitute' itself as the High Court, as it did in Z v Z[33] and R v McQuillan.[34] In R v McQuillan, the Court of Appeal dealt with two appeals from the same appellant, and sat as the Full Court of the High Court in relation to one appeal and as the Court of Appeal in relation to the other appeal. The Court of Appeal has said that the Judges of the Court of Appeal will sit as High Court Judges only in 'rare cases'.[35]
Thirdly, it is clear that s 57(4) of the Judicature Act does not confer upon the Court of Appeal a primary inherent jurisdiction. In Prior v Parshelf45 Ltd (in rec),[36] the Court of Appeal declared that it does not possess an inherent jurisdiction to supplement the powers given to it by statute and by the rules of court. Its jurisdiction is derived entirely from statute. Blanchard J analysed s 57(4) of the Judicature Act as merely enabling an individual Judge of the Court of Appeal to exercise the powers which she or he has as a High Court Judge, and to sit as a High Court Judge.[37] Section 57(4) can only come into play when the High Court could have exercised a power. The position of the Supreme Court is similar. The Supreme Court has confirmed that it does not possess inherent jurisdiction. In Simpson v Kawerau District Council,[38] the Court said that its jurisdiction is created and limited by statute. Unless there is a statutory provision that gives the Court the power to give leave to hear an appeal, the Court lacks jurisdiction to hear it.
There is one relevant distinction between the Supreme Court and the Court of Appeal. Section 20(2) of the Supreme Court Act declares that 'every Judge of the Supreme Court continues to be a Judge of the High Court and may, as a Judge of the Supreme Court, exercise any of the powers of a Judge of the High Court'. This section is different from the equivalent provision in relation to the Court of Appeal, which states that the Judges of the Court of Appeal 'may sit as Judges of the High Court'. Court of Appeal Judges can sit as Judges of the High Court, but Supreme Court Judges cannot.
The phrase, 'the inherent jurisdiction of the High Court' is often used in ways which suggest that the inherent jurisdiction is an amorphous, single source of jurisdiction. However, the inherent jurisdiction of the High Court is better understood as being comprised of a number of separate jurisdictions, which have developed piecemeal and mostly in isolation. The following discussion outlines some of these 'categories' of the inherent jurisdiction: parens patriae, punishment for contempt of court, judicial review, bail and jurisdiction over officers of the Court. The origin and scope of these categories is relatively straightforward. Not so straightforward is a more shadowy category of inherent jurisdiction: the Court's jurisdiction to revisit its own 'null' decisions.
The High Court's parens patriae jurisdiction is derived from the right and duty of the Crown as parens patriae 'to take care of those who are not able to take care of themselves'[39] - principally persons of unsound mind and children. It is based on a Royal Prerogative antedating the Statute De Prerogativa Regis, enacted about the year 1339 in the reign of Edward II.[40] Theobald speculates that by general assent or by some statute, the care of persons of unsound mind was taken by Edward I from the feudal lords, who would normally take possession of the land of a tenant unable to perform his feudal duties.[41] In the 1540s, the parens patriae jurisdiction was transferred from officials in the royal household to the Court of Wards and Liveries. That Court was wound up in 1660, and the Crown's jurisdiction was thereafter exercised through the Lord Chancellor and some of the Judges to whom it was entrusted under the Sign Manual. The parens patriae jurisdiction has two aspects: jurisdiction over those of unsound mind and jurisdiction over children (wards). In New Zealand, s 17 of the Judicature Act 1908 provides that the Supreme Court is to have 'all the jurisdiction and control over the persons and estates of idiots, mentally defective persons and persons of unsound mind.. as the Lord Chancellor of England, or any Judge or Judges of His Majesty's High Court of Justice or of His Majesty's Court of Appeal, so far as the same may be applicable to the circumstances of New Zealand, has or have under the Sign-manual of His Majesty or otherwise'.[42] The practice of conferring this royal authority by Sign-Manual has been abandoned in the United Kingdom, and jurisdiction is now provided by the Mental Health Act 1959 (UK). New Zealand judges continue to have the inherent jurisdiction which the appointed English judges had prior to 1959.[43]
The High Court can exercise its jurisdiction do to any act which it judges to be in the lunatic's benefit.[44] The jurisdiction clearly extends beyond treatment of the property of those who are intellectually disabled. It extends to authorising an application for a decree of divorce or nullity of marriage; determining questions as to the validity of a marriage;[45] and dealing with health issues.[46]
Statute has both affirmed and limited the inherent jurisdiction. Section 114 of the Protection of Personal and Property Rights Act 1988 affirms nothing in the Act limits the High Court's inherent jurisdiction in respect of persons of unsound mind and their estates. But in Re W,[47] Neazor J thought that the Mental Health Act 1969 defined the classes of persons to whom the Court's inherent jurisdiction applied.
The Court's inherent jurisdiction over wardship originated as a property right arising from the feudal system of tenures. Until 1660, this jurisdiction was administered by the Court of Wards and Liveries. When this Court was abolished in 1660, the Court of Chancery kept the concept of wardship alive by incorporating it as an aspect of its parens patriae jurisdiction.[48] Over time, wardship became procedurally and substantively connected with the parens patriae jurisdiction. It lost its connection with property and became purely protective in nature.[49]
In its inherent jurisdiction, the High Court has a discretion to give consent on behalf of a child, as in Pallin v Department of Social Welfare[50] and Re X.[51] Wardship has also been ordered to enable children to receive necessary medical treatment.[52]
The Guardianship Act 1968 codified the law concerning guardianship and gave the High Court jurisdiction in relation to wards of Court (ss 10A, 10B and 12).[53] Heath J, in Re an Unborn Child,[54] thought that the Guardianship Act was intended not to supersede the inherent jurisdiction of the Court, but to merely set out a procedural framework.[55] However, Heath J thought that it would rarely be necessary to resort to the inherent jurisdiction, as it has been largely (if not totally) subsumed by the Act.[56]
Judicial review is the exercise of the High Court's inherent jurisdiction to rule on the legality of public acts. The High Court inherited its review jurisdiction under the Supreme Court Ordinances of 1841 and 1844. Over the centuries, the superior courts in England developed a review jurisdiction. The jurisdiction enabled the King's courts to keep all lesser jurisdictions within their legal bounds, and to provide subjects with a remedy if tribunals or officials exceeded their legal authority or made orders contrary to law. The superior courts developed the writ of error to control and remedy errors made by courts of record. They also developed writs to review inferior jurisdictions (including courts not of record) and judicial and quasi-judicial functions exercised by bodies other than courts. The control of judicial and quasi-judicial bodies was initially regarded as a royal prerogative, exercisable by the King's Council. From about 1600, the King's Bench began to assert some of the control and review functions of the Council. Coke CJ declared the King's Bench had the jurisdiction to correct 'errors and misdemeanours extrajudicial, tending to the breach of the peace, or oppression of the subjects ... or any other manner of misgovernment'.[57] The function of reviewing decisions and actions of judicial and quasi-judicial bodies became part of the superior courts' inherent jurisdiction. It was this jurisdiction that the New Zealand Supreme Court (now the High Court) inherited under the Supreme Court Ordinances. The Judicature Amendment Act 1972 simplified the procedural trappings of judicial review but did not replace or modify the inherent nature of the Court's jurisdiction.
The earliest legal history shows that courts have assumed the power to punish those who obstruct the administration of justice. From about 1250 onwards, the Rolls and Year Books contain references to contempts of court.[58] From the thirteenth century, the King's Council also took an interest in contempts of court, particularly where the contempt touched the King. In the sixteenth and seventeenth centuries, the Star Chamber (an offshoot of the King's Council) took on some of the jurisdiction of the King's Council and punished contempts of the common law courts. The Star Chamber dealt with contempts by a summary process, rather than by the common law procedure.[59] When the Star Chamber was abolished in 1640, the King's Bench acquired all the lawful power that had been vested in the Star Chamber, and also adopted the summary procedure of the Star Chamber.
The New Zealand High Court inherited this general inherent jurisdiction to punish criminal contempt by the summary process of committal.[60] The jurisdiction is unlimited, except where it is limited by statute.[61] The High Court also possesses inherent jurisdiction to protect inferior courts from contempt committed out of court over which the inferior courts have no jurisdiction.[62] Some contempts are dealt with by statute.[63] Contempts of court which are not the subject of specific statutory provisions can only be dealt with by exercise of the High Court's inherent jurisdiction.
In Zaoui v Attorney-General,[64] the Supreme Court held that the High Court has the inherent jurisdiction to grant bail on direct application. The High Court inherited this substantive jurisdiction from the superior courts of England. Having confirmed the High Court's inherent jurisdiction, the Supreme Court then purported to exercise that jurisdiction itself. This assumption of jurisdiction is without foundation, because the Supreme Court does not possess inherent jurisdiction. The correct course would have been to remit the matter back to the High Court for that Court to determine the bail application. The Privy Council has recognised that it has no jurisdiction to grant bail on direct application.[65]
The High Court has an inherent summary jurisdiction over its officers.[66] The jurisdiction is based on the right of the Court to insist and require that its officers observe a high standard of conduct.[67] Its purpose is not to define or enforce rights between parties,[68] but to punish and discipline. The Court may exercise its summary disciplinary jurisdiction, for example, when a solicitor fails to honour a personal undertaking, made in his or her professional capacity, to do an act which is in his or her power to do.[69]
Generally, a court is functus officio once a judgment has been finally recorded.[70] However, the High Court retains inherent jurisdiction to set aside its own order if that order can properly be described as a nullity.[71] The judgment may be set aside without the necessity of appeal.[72] Procedural impropriety is the linking thread between most 'nullity' cases. A judgment may be described as a nullity if it was entered by default in breach of the relevant rules of the Court, or where the originating process was not served upon the defendant.[73] The Court may also set aside its own order where the Court sets out on the wrong inquiry;[74] or where there has been a breach of natural justice, such as where an order has been made against a party who has not had an opportunity to be heard.[75] In Brogden v Arnold, Heath J said that failure to hear parties is a fundamental failure which impugned the orders as nullities.
The English courts have also confirmed that they have jurisdiction to rescind or vary an earlier order where the earlier decision was made following procedural unfairness. The House of Lords considered that this jurisdiction should only be exercised where, through no fault of the party, he or she has been subject to unfair procedure. The earlier decision cannot be varied or rescinded just because it is thought to be wrong.[77] In Taylor v Lawrence,[78] the English Court of Appeal set aside its own order after presumptive bias had been established, a significant injustice had resulted, and there was no effective remedy.
The Court of Appeal's decision in R v Smith[79] is the leading decision in New Zealand. The Court of Appeal set aside a decision which was held to be a 'nullity' because of a fundamental breach of natural justice. Smith was decided in the wake of R v Taito,[80] in which the Privy Council identified fundamental errors in the Court of Appeal's processing of applications for criminal appeals.
The 'nullity' cases must be distinguished from a special group of cases involving continuing orders. In these cases, the jurisdiction to revisit and alter or set aside an order is a continuing jurisdiction. Questions of nullity or functus officio do not arise. Under the continuing jurisdiction, the Court may revisit the appropriateness of the continuation of an order if the circumstances change.[81]
The foundation of a court's jurisdiction to revisit decisions has not been clearly enunciated. The courts have cited inherent jurisdiction or inherent powers as being the foundation of the jurisdiction, with little further discussion. In Smith, Elias CJ declared that the Court of Appeal has an inherent power to revisit its decisions in exceptional circumstances when the interests of justice require. This power is part of the implied powers necessary for the Court to 'maintain its character as a Court of justice'.[82] The powers arise by implication from its jurisdiction and from its character as a court. Elias CJ did not discuss whether only superior courts enjoy these implied powers, or whether all courts enjoy such powers. She did not appear to base the powers on the inherent jurisdiction of the High Court.
The English Court of Appeal had taken a similar approach in Taylor v Lawrence.[83] Lord Woolf CJ affirmed that the Court of Appeal has a residual jurisdiction to reopen an appeal already determined in order to avoid injustice. As a court established with appellate (rather than original) jurisdiction, the Court of Appeal has no 'inherent jurisdiction'. It does, however, have implied powers arising out of the fact that it is an appellate court. A vital part of this jurisdiction is the power to suppress abuses of its processes and control its own practice. These include the 'implicit powers' to correct wrong decisions in order to achieve justice between the parties, and to ensure public confidence in the administration of justice. A high threshold must be met before the Court would exercise its jurisdiction to set aside its previous order. Lord Woolf CJ recognised the tension between the Court's jurisdiction to do this and the interest in finality in litigation.
The Australian High Court has taken a slightly different approach to the issue. In DJL v Central Authority,[84] a majority of the High Court held that the Family Court (an intermediate court of appeal) lacked jurisdiction to set aside a final order after entry of the formal order of the Court in the record. The majority found that the power to revisit decisions could not be derived by necessary implication from the statutory structure establishing and empowering the Court. Kirby J dissented. He opined that appellant courts (even if not a final court of appeal) have inherent power to reopen cases in exceptional cases of procedural unfairness. The rationale of this power is the need to maintain the integrity of court processes and to correct injustices. He recognised that a right of appeal or application for judicial review could effectively remedy the error or unfairness. However, he also observed that a very small proportion of cases are heard by the High Court, and it would be unrealistic to expect that appeal and review are always successful in correcting injustice.[85]
Questions remain about the basis of the Court of Appeal's power to revisit its decisions. The New Zealand and English Courts of Appeal identify the foundation as powers which are implied from the jurisdiction and character of the Court. The powers are implied to enable the Court to fulfil its function as a court of justice. The necessity of correcting injustices and maintaining public confidence in the administration of justice are identified as relevant considerations. In Smith, the Court found an inherent or implied power (the Court used both adjectives) to revisit 'null' decisions as a matter of necessity; it had to correct a clear and obvious injustice. The power to revisit decisions was not founded in the inherent jurisdiction of the High Court. As the Court of Appeal does not possess such jurisdiction it could not be the foundation of the powers exercised in Smith.
In Smith, the Court of Appeal purportedly followed the Court's earlier decision in R v Nakhla (No 2),[86] but this decision included two rulings that were problematic for the Court of Appeal. Nakhla (No 2) established, first, that once a judgment of the Court has been finally recorded, the Court is functus officio and its inherent power to vary its judgment is lost. However, the Court of Appeal in Smith asserted such a power as the justification for reopening decisions that it had entered in the record. Nahkla (No 2) also established, secondly, that the High Court had inherent jurisdiction to set aside its own order if the order could be described as a nullity. But the Court in Smith accepted (as it had to) that its jurisdiction was entirely statutory to the exclusion of the inherent jurisdiction possessed by the High Court.[87] Nor, it seems, does the Judges' concurrent appointment as judges of the High Court assist. In Prior v Parshelf45 Ltd,[88] the Court of Appeal ruled that the Judges' concurrent appointment under s 57(4) of the Judicature Act 1908 enabled Court of Appeal judges to exercise their High Court powers pending but not following the determination of an appeal. In Smith, any inherent powers as could be exercised under s 57(4) were spent and could not be used to reopen a flawed decision. Revisiting 'null' decisions raises further implications. Was the Court of Appeal in Smith effectively conducting judicial review of itself? The Court set aside a judgment entered by its own Court on the basis of a fundamental
error in procedure - an error normally the subject of judicial review. The general rule in judicial review is that a superior court exercising inherent jurisdiction cannot review the decision of a court of co-ordinate jurisdiction. Mistakes of law made by judges of the High Court can be corrected only by appeal to an appellate court.[89]
It seems that the power to revisit flawed decisions is driven by the pragmatic and pressing need to correct a clear and obvious injustice. The power is implied as a matter of necessity, although its foundation remains uncertain and contestable.
The relationship between inherent jurisdiction and statute was considered by the Supreme Court in Zaoui v Attorney-General.[90] It held that the inherent substantive jurisdiction of the High Court to grant bail can only be excluded by clear statutory wording. An exclusion of the inherent jurisdiction will not be inferred where the statute is silent.
It is not clear whether all categories of the inherent jurisdiction can only be excluded by clear statutory words, rather than by mere implication. In Zaoui, the Court highlighted the constitutional importance of the jurisdiction to grant bail. It is unclear whether a similar presumption against erosion applies to other categories of the inherent jurisdiction, which may not be of such constitutional importance.
It is arguable that all categories of the High Court's inherent jurisdiction are of constitutional significance. It is likely that the courts will apply a presumption that clear statutory words are required to exclude any of the inherent jurisdiction of the High Court. This is consistent with principles of statutory interpretation which declare that clear words are required to take away an existing jurisdiction or power.[91] In Teangana v Tong,[92] the Kiribati Court of Appeal said that 'the High Court has inherent jurisdiction at common law ... except to the extent that its jurisdiction may be expressly excluded'.[93]
There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction.[94]
All courts possess inherent powers. These powers enable the court to regulate its own procedures, to ensure fairness in trial and investigative procedures, and to prevent abuse of its processes.
Every court possesses inherent powers which enable it to give effect to its substantive jurisdiction. The inherent powers are 'ancillary' or incidental to the court's jurisdiction. In Taylor v Attorney-General,[95] Richmond J defined the distinction between the 'primary sense' of the word 'jurisdiction' and the 'ancillary sense' of the word.[96] Jurisdiction, in its primary sense, is 'the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision' .[97] A court's ancillary powers are those that the court exercises when exercising its primary jurisdiction. Many of these ancillary powers are conferred by statute or by rules of court, but where they are not so conferred, they only exist because they are necessary to enable the courts to act effectively within their jurisdiction in their primary sense. Richmond J called these ancillary powers the court's 'inherent jurisdiction', which is symptomatic of the confusion surrounding inherent powers and inherent jurisdiction. His description and analysis identifies the inherent powers that all courts possess. Inherent powers are implied from a court's substantive jurisdiction. In Zaoui v Attorney General,[98] the Supreme Court explained that inherent powers enable courts to give effect to their jurisdiction. In McMenamin v Attorney General,[99] the Court of Appeal said that inherent powers conferred a right on courts to do what is necessary to enable an inferior court to exercise the functions conferred on it by statute. This is implied as a matter of statutory construction. In Department of Social Welfare v Stewart, [100] Wylie J confirmed that an 'implied power' arises by necessary implication as being ancillary to the performance of functions, powers and duties conferred by the statute. The statutory function must exist for the necessary power to be implied.[101]
The Australian courts have also found that a court's inherent powers are implied from statutory provisions conferring a particular jurisdiction. The Australian courts have emphasised that these implied powers are restricted to those powers which arise by 'necessary implication' in the exercise of statutory jurisdiction.[102]
An alternative explanation is that inherent powers can be implied from the character of the court itself. Master Jacob adopted this theory, declaring that inherent powers are based on an 'immanent attribute' which is part of the intrinsic nature or the essential character of a court.[103] In R v Forbes,[104] Menzies J described 'inherent powers' (although he used the term 'inherent jurisdiction') in this way: 'inherent jurisdiction is the power which a Court has simply because it is a court of a particular description'. Kirby J's dissent in DJL v Central Authority[105] takes a similar approach. He suggested that inherent powers could be implied from the character of a court as a court of a particular kind. The history, functions and express powers of a particular court would help define the limits of its implied powers.[106] In R v Norwich Crown Court,[107] the Queen's Bench Divisional Court also preferred the view that inherent powers are derived from the common law and are independent of the statutes which create the substantive jurisdiction of the court.[108]
The better view is that inherent powers are implied from a court's jurisdiction. A court is defined by its jurisdiction: it has no authority to determine matters which are beyond its jurisdiction. Therefore, the court's inherent powers must be similarly defined.
Statute and rules of court constrain the exercise of inherent powers. However, the relationship between inherent powers and legislation and rules is not certain. It may not be clear whether a statute abolishes, suspends or modifies inherent powers, or whether the inherent powers continue to exist in conjunction with the statutory powers. The undefined nature of inherent powers compounds the uncertainty.
The uncertainty is reflected in decisions dealing with the relationship between inherent powers and statute. Some decisions have held that where a situation is the subject of detailed and precise legislation, a court will only exercise its residual inherent powers to deal with cases which have not been contemplated.[109] In R v Accused (CA 32/91),[110] the Court of Appeal held that the relevant statutory provisions and accompanying regulations by implication excluded the Court's inherent powers. So long as the exercise of an inherent power is not inconsistent with statute or the rules of court, the courts should be guided by pragmatism and necessity.
The situations in which a court may exercise its inherent powers can be grouped into three categories: to regulate its own procedure; to ensure fairness in investigative and trial procedures; and to prevent an abuse of its process.
All courts have the inherent power, subject to the rules of court and to statute, to regulate their own procedure.[111] Alderson B in Cocker v Tempest[112] stated that the power that each court has over its own process is unlimited. All courts have this power, whether they are inferior or superior courts. In Commissioner of Police v Ombudsman,[113] Cooke P explained that 'inferior Courts have by implication the necessary powers to control their own proceedings and to determine incidental or preliminary questions of law and fact'. If courts did not have such a power, then 'the Court would be obliged to sit still and see its own processes abused for the purpose of injustice'.[114] In Mihaka v Police,[115] Hardie Boys J declared that the discretion of the Judge or other judicial officers to regulate the proceedings of his or her Court is an 'essential attribute of judicial independence'. Even Justices of the Peace, as judicial officers presiding in a depositions hearing, have this inherent power.[116]
The inherent power to regulate proceedings can be exercised for a wide range of purposes, ranging from the relatively mundane to the more extensive. A court may use its inherent power to extend a time limit for the service of a writ;[117] to grant a motion to change the venue for the hearing of an interlocutory application;[118] and to grant an adjournment on application.[119] A court may also exercise its inherent power to allow an accused person to be assisted or represented by someone other than a lawyer in court,[120] or to grant leave to vacate a plea of guilty entered on arraignment, even though there is no statutory authority to that effect.[121] In Police v Wilson,[122] the District Court exercised its inherent power to enforce the duty on the prosecution to disclose to the defence the previous convictions of witnesses relevant to the credibility of the witness. In R v Accused (T4/ 88),[123] the Court of Appeal held that the High Court in a sexual abuse trial had the power to place a one-way glass screen across part of the dock while the 13 year old complainant was giving evidence. The High Court's power to restrain a barrister from acting has traditionally been considered as arising from the High Court's inherent jurisdiction. However, it is arguable that the power to supervise the conduct of counsel in court is not restricted solely to the High Court. In Black v Taylor[124] the Court of Appeal upheld a declaration made by the High Court that a solicitor should not act further as counsel in the proceedings. Richardson and McKay JJ based the Court's jurisdiction to restrain a barrister on what they called the 'inherent jurisdiction of the High Court' to regulate its procedure and to determine which persons should be permitted to appear before the Court. However, all courts have an inherent power to control their procedures and processes. Therefore, arguably all courts have the power to control who appears before them.[125]
Other cases have emphasised a different rationale for the power to supervise the conduct of counsel in court. In Kooky Garments Ltd v Charlton,[126] Thomas J said that his primary concern in exercising the power was the protection of the integrity of the judicial process. That integrity is undermined if solicitors or counsel do not possess the objectivity and independence which their professional responsibilities and obligations to the Court require of them.[127] Arguably, all courts, whether they are superior or inferior courts, have an interest and duty in protecting the judicial process. Therefore, even on Thomas J's alternative reasoning, all courts could be considered to have the inherent power to control those who appear before them.
The power to make a costs order against a client's barrister or solicitor is conventionally considered to arise from the High Court's inherent jurisdiction. This was recognised in Utah Construction & Mining Co v Watson[128] and affirmed by the Court of Appeal in Gordon v Treadwell Tracey Smith[129] and by the Privy Council in Harley v McDonald.[130] Pursuant to this jurisdiction, the Court may order a legal adviser who misconducts litigation to personally pay the costs incurred by an opposing party and on some occasions it may order the legal adviser to pay costs to his or her client.[131] In Hughes v Ratcliffe,[132] Hammond J held that the District Court has no jurisdiction to make an award of costs against a lawyer, because District Courts are a creature of statute and therefore lack inherent jurisdiction.[133]
The traditional rationale for the High Court's inherent jurisdiction to awards costs was explained in Harley v McDonald[134] as being founded on the duties owed to, and by, the Court. First, solicitors are officers of the Court and therefore owe duties to the Court. Second, the Court has a duty to ensure that its officers achieve and maintain an appropriate level of competence and do not abuse the Court's processes. There is a possible alternative rationale for the power to award costs. The power could be considered as an incident of every court's inherent power to regulate its own proceedings. The power is incidental or ancillary to the court's jurisdiction to hear and consider the matter before it, because the power to award costs can necessarily only arise when there are proceedings already before the court. Every court has an interest in ensuring that those who appear before it maintain an appropriate level of competence and do not abuse the court's processes. Therefore, every court should have the power to award costs against a legal advisor who misconducts litigation.
A court may exercise its inherent power to ensure the fairness of proceedings where the investigative or trial procedures are unfair or contrary to the interests of justice. The guiding principles in the exercise of this power are the considerations of justice and fairness. Delay may make proceedings unfair, as in MacFarlane v Erber,[135] where Tipping J confirmed that the District Court has inherent power to dismiss an information if its continuance would amount to an abuse of process. At the heart of this power is the concept of fairness, both to the individual defendant and to the general administration of justice.[136]
A stay may be granted where it would be unfair to make the accused stand trial. In R v Duval,[137] Thomas J granted a stay of proceedings pursuant to the Court's inherent powers because the accused suffered from a medical condition which was held to make it impossible for him to face a fair trial. Thomas J reasoned that the Court may invoke its inherent powers 'whenever the justice of the case so demands.'[138]
The fairness of investigative procedures was at issue in R v Hartley.[139] New Zealand police had not obtained a warrant for the accused's extradition and had merely asked the Melbourne police to put the accused on the next plane to New Zealand, which the Melbourne police did. The Court of Appeal found that, had the matter been raised by counsel, the judge in the High Court would 'probably have been justified' in exercising his discretion to direct that the accused be discharged, under either his inherent power, or under s 347(3) of the Crimes Act 1961 because the police procedures were unfair and unlawful.[140]
Every court has an inherent power to prevent abuse of its processes. The inherent power to prevent abuse of process may be more than a matter of discretion; it may amount to a duty on the court. This was the approach taken by Cooke J in NZ Social Credit Political League v O'Brien,[141] where he stated that the inherent jurisdiction to strike out a statement of claim as an abuse of process is one which a court may come under a duty to exercise.[142]
The guiding principles in the exercise of a court's inherent power are the considerations of justice and fairness. The underlying rationale of the abuse of process principle is the prevention of abuses that would strike at the public confidence in a court's process and so diminish the court's ability to fulfil its function. In Moevao v Department of Labour,[143] Richardson J emphasised that the due administration of justice is a continuous process and is not confined to the determination of a particular case. Therefore, 'when exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it'.[144] It is accepted that all courts have the inherent power to prevent an abuse of its processes. Some doubt was created by the Court of Appeal's decision in Moevao v Department of Labour,[145] where the Court declined to make a definitive ruling as to whether the District Court possessed such inherent power. In Bryant v Collector of Customs,[146] the Court of Appeal confirmed that any court of justice has the inherent power to prevent an abuse of its processes. It was the 'Judge's duty' to exercise this inherent power.[147] In Department of Social Welfare v Stewart,[148] the inherent power of the District Court was held to extend to dismissal or permanent stay of an information. Any doubt as to the District Court's power to strike out pleadings as an abuse of process was removed by r 209 of the District Court Rules 1992, which expressly confers the District Court with the power to strike out pleadings as an abuse of process.
The inherent jurisdiction of the High Court and the inherent powers of all courts are fundamental to the functioning of the judiciary and the administration of justice. But in practice, confusion and uncertainty have plagued the courts' treatment of inherent jurisdiction and inherent powers. The courts have used the terms 'jurisdiction' and 'powers' indiscriminately when describing these distinct concepts, and at times the superior appellate courts have conflated these concepts and wrongly assumed the inherent jurisdiction of the High Court. There is urgent need for clarification of the concepts of 'inherent jurisdiction' and 'inherent powers', with strict and careful attention to terminology.
Inherent jurisdiction denotes the substantive, non-statutory authority to take matters and determine them. Only the High Court, as a court of general jurisdiction, exercises the inherent jurisdiction that was inherited from the superior courts in England. Statutory courts, including superior appellate courts, do not possess inherent jurisdiction because their jurisdiction is conferred and limited by statute. But this fundamental tenet is sometimes obscured in the intricacies of judicial reasoning. The Court of Appeal in Smith wrongly assumed inherent jurisdiction to set aside the impugned decisions on appeal, and the Supreme Court in Zaoui wrongly assumed inherent jurisdiction to grant bail on direct application. Both Courts fudged the distinction between inherent jurisdiction and inherent powers. All courts - superior and inferior - possess inherent powers. Inherent powers arise incidentally to the exercise of jurisdiction and enable courts to function and protect their character as courts of justice. Their exercise is entirely parasitic and cannot found jurisdiction where there is none. The decisions in Smith and Zaoui leave unsettling and unanswered questions. It is unsatisfactory that our superior appellate courts must usurp jurisdiction to correct injustices. Any lacuna in the jurisdiction of either court ought to be squarely confronted. Careful amendment to the Supreme Court Act 2004 and the Judicature Act 1908 should be made to authorise these courts to set aside their 'null' decisions and to correct injustices.
[*] Judges' Clerk, Court of Appeal, Wellington. The author acknowledges the assistance of Adjunct Professor Gerard McCoy QC and Professor Philip Joseph both of the School of Law at the University of Canterbury in the writing of this paper.
[1] [2004] NZCA 228; [2005] 1 NZLR 577 (CA); [2005] 1 NZLR 666 (SC).
[2] Laws of New Zealand: Courts [7].
[3] See Taylor v Attorney General [1975] 2 NZLR 675, 689, where Woodhouse J described the 'inherent jurisdiction' (which should be read as 'inherent powers') of a court as being procedural, rather than substantive, in nature.
[4] Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577 (CA); [2005] 1 NZLR 666 (SC), [35].
[5] (unreported, CA, 29 May 1997) 3.
[6] This definition was adopted by the Court of Appeal in Taylor v Attorney-General [1975] 2 NZLR 675.
[7] Jacob, 'The Inherent Jurisdiction of the Court' in Current Legal Problems (1970) 27-28.
[8] [2004] NZCA 228; [2005] 1 NZLR 577 (CA); [2005] 1 NZLR 666 (SC).
[9] [1990] 1 NZLR 697, 701.
[10] See also Benipal v Minister of Foreign Affairs & Minister of Immigration (unreported, HC, Auckland, 6 September 1983, Chilwell J) 5 - 7.
[11] The following section is based on three main sources: P, Spiller, J Finn & R Boast, A New Zealand Legal History (2nd ed, 2001) ch 5; Laws of New Zealand, above n 2, [1] - [6]; B Cameron, 'The Judicial System' in J Robson (ed), The British Commonwealth: the development of its laws and constitutions (2nd ed, 1967) 77.
[12] Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] UKLawRpKQB 46; [1892] 1 QB 431, 447 (Fry LJ) (CA).
[13] The Charter was promulgated pursuant to an imperial statute (3 and 4 Vict, c 62) which constituted New Zealand as a colony separate from New South Wales.
[14] 12 October 1846, 10 Victoriæ No.3. The purported conferring of vice-admiralty jurisdiction was ineffective because it was not a jurisdiction able to be given except by explicit exercise of the Royal Prerogative. See Edwin Fletcher, A Rational Experiment: The Bringing of English Law to New Zealand: (MA Thesis, University of Auckland, 1998) 189.
[15] Cameron, above n11, 77.
[16] Supreme Court Act 1860, s 4.
[17] Supreme Court Act 1860, s 5.
[18] Cameron, above n 11, 77.
[19] See also Cooke J's discussion in R v Clarke [1985] 2 NZLR 212, 214 (CA).
[20] Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] 2 NZLR 612, 615 (CA).
[21] R v Bedwellty Justices [1997] AC 225, 232 (HL). See also New Zealand Waterside Workers' Federation IAW v Frazer [1924] NZLR 689, 707; R v Kestle (No 2) [1980] 2 NZLR 353, 358 (CA).
[22] Created by the District Courts Act 1947.
[23] See the Family Courts Act 1980, in particular s 11.
[24] Hastings District Court v Maori Land Court, McGuire & Makea (1999) 5 ELRNZ 514. See also the Te Ture Whenua Maori Act 1993, which affirmed the continuance of a Maori Land Court. See in particular ss 6, 18, 19 and 20.
[25] See the Resource Management Act 1999, in particular s 247.
[26] Hardie Boys, above n 2, [6].
[28] Stephens v Stephens [1991] 1 NZLR 633.
[29] Stephens v Stephens [1991] 1 NZLR 633, 637-638 (Holland J); disagreeing with Franklin v Baycorp Ltd (1990) 4 PRNZ 258.
[30] Stephens v Stephens [1991] 1 NZLR 633.
[31] Ibid 268.
[34] (unreported, CA, 12 Aug 2004). The judgment of the Court was delivered by McGrath J.
[35] Meates v Taylor [1991] NZCA 289; [1991] 2 NZLR 173, 175 (CA).
[37] Ibid 389.
[38] (unreported, SC, 5 October 2004, Keith & Blanchard JJ).
[39] Pallin v Department of Social Welfare [1983] NZLR 266, 272 (Cooke J) (CA).
[40] Theobald, The Law Relating to Lunacy (1924), cited in In re W [1954] NZLR 183, 187 (Adams J).
[41] Ibid 1.
[42] Section 17 carries over the Supreme Court Ordinances of 1841 and 1844.
[43] Re P [1961] NZLR 1028, 1030-1031; Re W [1994] 3 NZLR 640; cf Re H [1993] NZFLR 225, 228-229, where Judge Inglis QC doubted whether the New Zealand courts retained their parens patriae jurisdiction over intellectually disabled persons.
[44] Attorney General v Marquis of Ailesbury [1887] UKLawRpAC 39; (1887) 12 App Cas 672, 680.
[45] Re W [1994] NZHC 1156; [1994] 3 NZLR 600, 605.
[46] As in R v X [1991] 2 NZLR 266, 370-371, where the High Court exercised its parens patriae jurisdiction to make an order that a severely intellectually handicapped girl should undergo a hysterectomy operation to prevent menstruation.
[47] [1994] NZHC 1156; [1994] 3 NZLR 600, 604.
[48] See, for example, Cary v Berite (1696) 2 Vern 333, 342; Morgan v Dillon (Ire) (1724) 9 Mod R 135, 139.
[49] Re Eve 1986 CanLII 36 (SCC); (1986) 31 DLR (4th) 1 (SCC); Re Z (a minor) [1995] 4 All ER 961, 967-980.
[50] [1983] NZLR 266, 272 (Cooke J) (CA).
[51] [1990] NZHC 1427; [1991] 2 NZLR 365.
[52] See, for example, Director-General of Social Welfare v Ulutau [1988] NZHC 2318; [1988] 5 NZFLR 631; Re Norma [1991] NZHC 1792; [1992] NZFLR 445.
[53] The Family Court may exercise the inherent jurisdiction of the High Court in relation to these matters: Guardianship Act, s 10E. Section 10E(2) is subject to two exceptions contained in s 10E(2)(a), (b)
[55] Re an Unborn Child [2003] 1 NZLR 115, 127 (Heath J).
[56] Ibid.
[57] 11 Co Rep 98; Co Inst, vol IV, 71; cited in J Baker, An Introduction to English Legal History (2nd ed, 1979) 125.
[58] Sir David Eady & A Smith, Arlidge, Eady & Smith on Contempt (2nd edn, 1999), 1.
[59] Ibid 8-9.
[60] R v McKinnon [1909] NZGazLawRp 285; (1909) 30 NZLR 884; Attorney-General v Blundell [1942] NZGazLawRp 27; [1942] NZLR 287; Attorney-General v British Broadcasting Corporation [1981] AC 303.
[61] Taylor v Attorney-General [1975] 2 NZLR 675 (CA); Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA).
[62] Attorney-General v Butler [1953] NZLR 944; Quality Pizzas v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA); Attorney-General v Blundell [1942] NZGazLawRp 27; [1942] NZLR 287.
[63] See, for examples of statutes dealing with contempt in the face of the court, Crimes Act 1961, ss 401, 206; Judicature Act 1908, ss 56B, 56C. See Laws of NZ: Contempt of Court [6], fn 6 for more examples. See, for examples of statutes that deal with contempt not in the face of the court: Crimes Act 1961, s 375A; Evidence Act 1908, s 15(2); Administration Act 1969, s 54.
[64] [2004] NZCA 228; [2005] 1 NZLR 577 (CA); [2005] 1 NZLR 666 (SC).
[65] Lala Jairam Da v King-Emperor (1945) 61 TLR 245 (PC). See also Ex parte Speculand [1946] KB 48 where it was held that the High Court has no power to grant bail after conviction, as the jurisdiction is only vested on appeal in the Court of Appeal.
[66] The summary jurisdiction is expressly preserved by s 94 of the Law Practitioners Act 1982.
[67] Re McDougall's Application [1982] 1 NZLR 141 (Hardie Boys J).
[68] Ibid 144.
[69] See, for example, In Re A Solicitor (Lincoln) [1966] 3 All ER 52; National Westminster Finance New Zealand Ltd v Byrant [1989] 1 NZLR 513, 518-519.
[70] As was reiterated in Re Victim X [2003] NZCA 102; [2003] 3 NZLR 220, 233 (CA).
[71] Rv Nakla (No. 2) [1974] NZLR 453, 455 (CA).
[72] Craig v Kansenn [1943] 1 KB 256; approved in Kofi Forfie v Seifah [1958] AC 59, 67 (PC).
[73] Craig v Kansenn [1943] 1 KB 256; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589. See also Keith Mason, 'The Inherent Jurisdiction of the Court' (1983) 57 Australian Law Journal, 449, 450.
[74] Butterfield v R [1997] 3 NZLR 760.
[75] Utah Construction & Mining Co v Watson [1969] NZLR 1062.
[77] R v Bow Street Metropolitan Stipendiary Magistrat (No.2) [1999] UKHL 1; [2000] 1 AC 119, 132 (Lord Browne-Wilkinson).
[78] Taylor v Lawrence [2002] EWCA Civ 90; [2002] 2 All ER 353.
[80] [2003] 3 NZLR 577 (PC).
[81] Chan v Attorney General (unreported, HC, Wellington, 21 Oct 2004, MacKenzie J) [11]. See also Re Wellington Newspapers Ltd's Application [1982] 1 NZLR 118, 118 (Cooke P). Compare these cases with Re Victim X [2003] NZCA 102; [2003] 3 NZLR 220, where it was held that the Court of Appeal had no jurisdiction to hear an appeal against the lifting of a name suppression, because the order made by the High Court judge was final.
[82] R v Smith [2002] NZCA 335; [2003] 3 NZLR 617, 628 (Elias CJ).
[83] [2002] EWCA Civ 90; [2002] 2 All ER 353.
[84] [2000] HCA 17; (2000) 170 ALR 659 (HCA), following Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 (HCA).
[85] [2000] HCA 17; (2000) 170 ALR 659, 685-686 (Kirby J) (HCA).
[87] See also Prior v Parshelf 45 Ltd [2000] 1 NZLR 385 (CA); Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528 (CA).
[88] [1974] 1 NZLR 453, 389 (CA).
[89] Re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374, 384 (Lord Diplock); applied in New Zealand in Bulmer v Attorney-General (1998) 12 PRNZ 316 (CA).
[90] [2004] NZCA 228; [2005] 1 NZLR 577 (CA); [2005] 1 NZLR 666 (SC).
[91] Jacobs v Brett [1875] UKLawRpEq 61; (1875) LR 20 Eq 1, 6 (Jessel MR); Henderson v Wangapeka Gold-Dredging Co Ltd [1904] NZGazLawRp 108; (1904) 23 NZLR 833, 835-836.
[92] (Kiribati Court of Appeal, 24 November 2004, Hardie Boys, Tompkins & Fisher JJA).
[93] Ibid 2, citing Philip Joseph, Constitutional and Administrative Law in New Zealand, (2nd edn, 2001) 733. 94 R v Connelly [1964] AC 1254, 1301 (Lord Morris).
[96] Taylor v Attorney General [1975] 2 NZLR 675, 681-682.
[97] Ibid, citing 9 Halsbury's Laws of England (3rd ed) 350.
[98] Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577 (CA); [2005] 1 NZLR 666 (SC), [35].
[99] [1985] 2 NZLR 274, 276 (CA).
[100] [1990] 1 NZLR 697.
[101] Ibid 703.
[102] DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659, 667 (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ), 689 (Kirby J) (HCA); Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235, 241; R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1,7; R v Bevan [1942] HCA 12; (1942) 66 CLR 452, 464-5.
[103] Jacob, above n 7, 23.
[104] [1972] HCA 34; (1972) 127 CLR 1 (Menzies J), cited in Taylor v Attorney General [1975] 2 NZLR 675, 678.
[105] [2000] HCA 17; (2000) 170 ALR 659, 689.
[106] DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659, 689.
[108] Ibid 56.
[109] Derby & Co Ltd v Weldon, The Times, November 1990; Etri Fans Ltd v N.M.B. [1987] 1 WLR 1110; Williams v Attorney-General [1987] 1 FLR 501.
[110] [1991] NZCA 456; [1992] 1 NZLR 257.
[111] R v Bloomsbury & Marylebone County Court [1976] 1 WLR 362, 365.
[112] [1841] EngR 242; (1841) 7 M & W 502, 503-504.
[113] [1988] NZCA 211; [1988] 1 NZLR 385, 399 (CA).
[114] Cocker v Tempest [1841] EngR 242; (1841) 7 M & W 502, 503-504.
[115] [1981] 1 NZLR 54, 58.
[116] Mihaka v Police [1981] 1 NZLR 54.
[117] Champtaloup v Northern Districts Aero Club Inc [1980] 1 NZLR 673 (SC & CA).
[118] Colonial Arms Motor Inn Ltd v Twentieth Century-Fox Film Corporation [1984] NZCA 156; [1985] 1 NZLR 382 (CA).
[119] Clifford v Commissioner of Inland Revenue [1966] NZLR 201 (CA).
[120] Mihaka v Police [1981] 1 NZLR 54.
[121] Leeder v Christchurch District Court (unreported, HC, Christchurch, 20 August 2004, Pankhurst J) [25].
[123] [1988] NZCA 250; [1989] 1 NZLR 660 (CA).
[124] [1993] NZCA 266; [1993] 3 NZLR 403 (CA).
[125] See also Abse v Smith [1986] QB 536, 547 (which was cited by Richardson J in Black v Taylor). There, Donaldson MR said that the rights of audience before the Court can only be restricted by statute, apart from an 'inherent right in all courts' to refuse to hear any individual barrister or solicitor (emphasis added).
[126] [1993] NZHC 2760; [1994] 1 NZLR 587.
[127] Ibid 590 (Thomas J).
[129] [1996] NZCA 110; [1996] 3 NZLR 281 (CA).
[130] [2002] UKPC 40; [2002] 1 NZLR 1 (PC).
[131] Gordon v Treadwell Stacey Smith [1996] NZCA 110; [1996] 3 NZLR 281, 283 (CA).
[132] Hughes v Ratcliffe (unreported, HC, Hamilton, 21 July 2000, Hammond J).
[133] Ibid 14.
[134] [2002] UKPC 40; [2002] 1 NZLR 1, 22 (PC) (Lord Hope).
[135] [1989] NZHC 621; [1990] 2 NZLR 69.
[136] Ibid 85 (Tipping J). For other cases dealing with delay, see McMenamin v Attorney General [1985] 2 NZLR 274 (CA); Re Arnold [1977] 1 NZLR 327; Department of Social Welfare v Stewart [1990] 1 NZLR 697.
[138] Ibid 205.
[140] Ibid 217.
[142] Ibid 89.
[143] [1980] 1 NZLR 464, 481-482 (CA).
[144] Ibid 481.
[145] Ibid.
[147] Ibid 284.
[148] Department of Social Welfare v Stewart [1990] 1 NZLR 697.
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