The case for a specialist focus on Equity in our Court system

The practice of law today is distinguished by specialisation.  Generalist lawyers can’t compete with specialists and as a consequence, most have had to acquire one or more specialist skills. 

The same is true in other professions.  The drive to specialisation is relentless.  It is driven by an explosion of information and learning that makes it impossible for one person to master more than a few subjects.

There is one prominent exception to this trend – our Court system.  With a few exceptions, NZ has refused to organise its Courts into specialist groups.   There are consequences of this.  One is user dissatisfaction with the Courts, with an increased preference for arbitration (where parties can choose a person of acknowledged competence in the law of the dispute), and mediation (where parties prefer a mediated outcome to a court system which may result in a hearing before a Judge who has no appropriate specialist skills for the dispute.)

To illustrate how far out of line we have become I shall refer to aspects of the Court systems in two Australian States.

First, Victoria.  The Supreme Court there is divided into three divisions:  a Commercial and Equity division; a Common Law division; and a Criminal division.

The need for specialisation receives further recognition in a number of Specialist Lists to which dedicated Judges and their staff are appointed.  The Supreme Court has the following Specialists Lists: an Admiralty List; a Technology Engineering and Construction List; a Commercial List; a Corporations List; an Intellectual Property List; a Judicial Review and Appeals List; a Long Cases List; a major Torts List; a Personal Injuries List; a Valuation Compensation and Planning List; and a Taxation Appeals List.  There is also a Commercial Court with five Lists, each of which has its own Judge and Associate Judge.

Next, New South Wales.  The Supreme Court of NSW is divided into two broad divisions: a Common Law division and an Equity division.  On a typical day a couple of weeks ago, the Judges and Registrars of the Common Law Division occupied 10 Courts.  Another Judge in this Division was sitting in an Administrative Law List.

In the Criminal Division there were seven Courts that day six of which were staffed by Supreme Court Judges and one by a Deputy Registrar.

The Judges, Associate Judge and Registrars of the Equity Division sat in more than 14 Courts that day.

The Equity Division has its own Commercial List.  Two Judges and a Deputy Registrar were assigned to that Division that day. 

There is also a Technology and Construction List and this was handled by a Deputy Registrar.  A Probate List was handled by a Supreme Court Judge together with a Registrar and a Deputy Registrar.

Specialisation does not stop at the State Supreme Courts.  For example, litigants can bring proceedings in the Federal Court.  Here, Judges are generally chosen for their specialist knowledge of one or more areas of law that can be litigated in the Federal Courts.  In this way, an IP case will generally be tried by a Judge who has specialist competency in IP law, an admiralty case by a Judge who has specialist competency in admiralty law, and so on.

I have referred in recent articles to criticisms that have been made by overseas commentators of some of our cases in Equity. 

Such criticisms are not confined to cases involving the principles of Equity  and Trusts.  All counsel will be able to recall cases where non-specialist Judges got the law badly wrong.  The worst case that I recall involved a question of tax.  The Trial Judge got the law so wrong that when the case went to the Court of Appeal, both counsel and the Judges in the Court of Appeal agreed that it was best to simply ignore the Trial Judge’s Judgment.

Criticisms of our Courts by overseas commentators have a corrosive effect on the reputation of the New Zealand legal system and this is harmful in a variety of ways.

My purpose in writing this article is to advance the case for an enhanced focus on Equity in our Court system.  It is not my purpose to criticise anyone who has supported the current system but to seek recognition of the reality that the age of comprehensive generalisation has passed.  No Judge of the High Court and District Court can be expected to master all of the laws that he or she is currently required to adjudicate upon. 

There is a range of possibilities for creating an enhanced competency for Equity in the Court system.  One way is for the High Court to have its own Equity Division with dedicated Judges.  They should attend the specialist conferences – like the practitioners in that field – and read the specialist journals, so that they can continually upskill themselves, and inspire confidence in the Country’s ability to provide Judges who will produce Judgments that are not just internationally acceptable but which add lustre to the Country’s reputation for excellent jurisprudence.

As most Trust disputes these days are arising in the family law context it would also be helpful if the Family Courts could be modified to have a specialist focus on Equity matters. 

A strong legal system is the bedrock of a flourishing commercial community.  Equity Courts in England and Australia have produced excellent jurisprudence and have assisted to create fertile commercial environments.  Foreign litigants are happy to litigate their disputes there. 

Such outcomes will not be achieved so long as we have a Court system where every High Court Judge is required to be a generalist – usually with a significant focus on criminal trials – and where most District Court Judges are also required to be comprehensive generalists.