Judicial specialisation in the High Court – What is happening?

We live in an age of specialisation.

A Judge has trouble with his eyesight.  Assume that the Judge is a man, will he go to an obstetrician, a paediatrician or an audiologist?

He won’t go to any of them. He’ll go to an ophthalmologist or an eye surgeon.

The same Judge wants some tax advice. Will he go to an accountant who specialises in banking, E-business, economics, or any of the other 20 recognised accounting specialties?

He'll go to an accountant who specialises in tax. 

Assume that the Judge has a place in the country by a noisy road and he wants to know what he can do to reduce the noise. Which of the 25 recognised types of engineering specialists will he go to? A chemical engineer, an electrical engineer, a software engineer? 

No. He'll go to an acoustic engineer.

He has a daughter who has been sexually harassed at work and she has asked him to recommend a lawyer. Will he recommend a tax lawyer, an RMA lawyer, an IP lawyer, a property lawyer?

No. He'll recommend a lawyer who specialises in employment law.

The same Judge has had dizzy spells while ski-ing in a remote location  where there is only a GP. The GP says he needs urgent brain surgery and he - the GP - will conduct an operation on his head. He says he has a text book and some manuals that he'll use to guide him. What will the Judge do?  He'll do anything but let the GP touch his head!

Before his appointment to the Bench, the Judge had a friend who was involved in patent litigation. On the day before the trial the friend was told that the Judge who was to hear the dispute used to be a Crown Prosecutor in a provincial town who had absolutely no knowledge of patent law. What did the Judge recommend? He probably said, “Settle on the best terms you can get.”

When our Judges and politicians know that our system of having non-specialised Judges in the High Court is fundamentally flawed, why do they continue to allow it to exist?

I don’t know the answer but I am pleased to record that there appears to be some momentum for change.

The Law Commission has come out in favour of judicial specialisation in the High Court (NZLC IP 29, February 2012 at 7.55).

The New Zealand Law Society has joined the cause. In its comments on the Law Commission’s Fifth Issues Paper concerning Trusts, it said that it does not favour:

               “expanding the jurisdiction of the District Courts to give it concurrent jurisdiction with the High Court to deal with issues under proposed new Trust legislation. The Law Society does not favour expanding the jurisdiction of the District Courts, except in the Family Court to a limited degree. Greater judicial specialisation is desirable. Giving District Courts jurisdiction in Trust matters would not achieve that end. …”

The Attorney-General has spoken of the desirability of specialisation, saying:

               “Judicial specialisation could well be a topic whose time has come. I understand the judiciary is looking at the issue now.” (See NZ Lawyer, 4.11.11, p 15)

Some senior members of the legal profession including Jim Farmer QC and David Williams QC have written in favour of specialisation. With support from the Law Commission, the NZLS, the apparent support of the Attorney-General, and support from the senior Bar, it would be reasonable to hope that change could be implemented before too long.

As I am not sure where the initiative for change lies at present I have written to the Chief High Court Judge to ask if she is able to let the profession know what is happening. This is what I wrote:

“JUDICIAL SPECIALISATION

 I write to you in the context of two recent reports:

(a)   The Law Commission has recommended that there might be “a panel system” to assist with the process of judicial specialisation in the High Court; and

(b)   In its comments on the Law Commission’s Fifth Issues Paper on the Law of Trusts, the New Zealand Law Society has said that “Greater judicial specialisation is desirable”         

        “The Law Society does not favour expanding the jurisdiction of the District Courts, except in the Family Court to a limited degree. Greater judicial specialisation is desirable. Giving District Courts jurisdiction in Trust matters would not achieve that end.

For the purposes of an article that I would like to write about initiatives that are being undertaken to create forms of specialisation in the High Court I would be grateful if you would be kind enough to answer the following questions:

1. Are you able to say if your Committee is attracted to the Law Commission’s suggestion that there should be some specialist panels?
2. If so, are you able to say when any panels might be created, and how they might be structured?
3. If the Law Commission’s suggestion that there should be some specialist panels is not favoured by High Court Judges, is another system(s) favoured in preference to a panel system?
4. If so, are you able to say what that system(s) may be?
5. Do you envisage that you and your colleagues on the High Court will implement changes without the need for either the Law Commission or the Government to promote and assist with any specific changes?”

Justice Winkelmann has since replied to my letter and the text of her response is set out below.

"I have your letter of 20 April 2012 seeking my views about specialisation.  The courts are yet to respond to the Law Commission on the issue and it would be discourteous to the Law Commission for the judiciary to respond publically before that occurred."