Establishment of Law Courts
Official law reports in New Zealand are a modern phenomenon. Aotearoa New Zealand’s founding document, the Treaty of Waitangi, was signed in 1840 and was quickly followed by the establishment of law courts in New Zealand. The first statute creating the Supreme Court of New Zealand was passed on 22 December 1841.
By and large, the judges who sat in those early courts applied the law of England. There were a few copies of imperial statutes scattered around and some refugees from the English bar had brought other legal materials. But much of the law the early judges applied was sourced from memory.
There is no formal record of the content of the reasons for those early decisions. We know from newspaper reports and other secondary materials that the law of England quickly began to bend and change as it interacted with the customary law of Maori, known as tikanga, and with the reality of a frontier society. These were very particular circumstances to apply the law of England; circumstances created by the extensive human and economic interaction of two peoples — Maori and European settlers.
The need for law reports
Contemporary newspaper reports, published in both English and Maori, contain some record of those decisions, suggesting their historical significance in developing the partnership between these peoples. However, in the absence of any formal reports, the law could not develop from case to case to meet the needs of this new society. Without reports, the common law method was hamstrung, and the law does not develop without precedent. The absence of law reports may explain, at least in part, why the initial promise of decisions that merged customary law and English law was not carried forward into the twentieth century, necessitating efforts to reclaim that approach in recent years. Relations between Maori and settlers were at their best in the early 1840s through the 1860s, with both sides seeking a common path for the future.
Sadly, the legal treasure comprised in those early decisions was not captured. In the absence of any record, the practical reality was that it did not bind the courts dealing with cases following conflicts between Maori and settlers and the settler demand for land.
Academics have since undertaken projects, such as the New Zealand Lost Cases Project, to systematically search for and compile ephemera shedding light on these cases from newspapers, manuscripts, archives, and judges' notebooks. The Council of Law Reports has also initiated projects like the publication of Lost Cases Reports to create a record of these lost cases, building on the work of such projects. Law reporting officially began in 1861 when Mr. James Macassey started the New Zealand Reports, focusing on courts in Dunedin due to the region's economic boom from gold mining. Communication difficulties and the country's geographic spread hindered including cases from other districts. Subsequent minor series of reports were private ventures that struggled and ultimately failed. In 1882, the Council of Law Reporting was formed, leading to the establishment of nationwide official law reports. The first volume of the New Zealand Law Reports was issued in 1883, marking the start of a comprehensive system covering all senior courts. The early years of the New Zealand Law Reports faced financial challenges, exacerbated by a fire in 1912 that destroyed almost the entire stock of printed copies stored in warehouses.
Facing financial ruin, the Law Reports formed a commercial arrangement with Butterworth and Company for the publishing and distribution of the reports. Butterworths remains the publisher of the New Zealand Law Reports over 100 years later, although now of course Butterworths is LexisNexis.
New Zealand Council of Law Reporting Act
In 1938, the New Zealand Council of Law Reporting Act was passed. The Act conveyed all of the assets of the old, non-statutory Council of Law Reporting to this new statutory body. In effect, it nationalised the Law Reports. In other countries, governments do this to oilfields and canals. In New Zealand, we nationalised the law reports.
This legislation remains the Act under which official law reporting in New Zealand occurs today. The statutory composition of the Council created a collaboration between the executive, the Law Society, and the judiciary for the publication of law reports.
The Act contained the directive that the Council publish decisions as “may, in [the Council’s] opinion, be necessary or of value to persons engaged in the administration or practice of law in New Zealand.”
The publication of New Zealand Law Reports was critical to the development of the New Zealand legal profession and to the creation of an indigenous law of New Zealand. Over time, less and less resort was had to English reports and increasingly, the go-to source of law was the New Zealand Law Reports.
It was around the late 1990s in New Zealand that the decisions of the courts became increasingly available online and electronically. Today, a site run by the Ministry of Justice, Judicial Decisions Online, makes almost all of the decisions of the senior courts readily accessible to the general public. Just last year, that facility was extended to the decisions of the District Court, our largest court. NZLII, our equivalent of AUSLII, has similar functionality.
The reality is, however, that while cases may be accessible at the click of a mouse, the sheer volume of information makes the law, if pursued by that means alone, inaccessible. The difficulties in accessing the law, with which our ancestors in this land struggled, remain. The barriers to access are simply different; information overload rather than impassable alpine ranges.
It is the official law reports which enable navigation of the sea of information available through online resources. Selection of a case for publication is a quality badge for that judgment; it is of note. It is the most authoritative statement of the law, or it makes new law, or it settles uncertainty. The Law Reports therefore remain the most authoritative source of information on the common law.
This brings into focus how critical the task is of the editor of the Law Reports. In New Zealand, the editor is undoubtedly assisted in the formidable task of scanning the output of the courts for cases worth reporting by the practice that operates in the senior courts whereby judges identify those cases which are noteworthy. But the present editor of the Law Reports, Geoff McLay, says that this only operates to a certain extent, as he finds that the judges of the New Zealand senior courts are inveterately bashful. They remain unwilling to identify their cases as noteworthy for reporting, and the usual recommendation indeed is “not recommended” or “low priority”. It is a peculiar thing to have to overcome modesty in judges.
Although we no longer have to battle fires, there still are challenges to the business model. Case law can be accessed and printed free from the internet. The status of cases in the official reports is overlooked or overshadowed because of the irresistible pull of the latest case. This has led to a growing resort to non-official sources for citation in court, and to the incessant and system-clogging citation of authority with no precedential value.
Perhaps the courts can do more. In New Zealand, the Court of Appeal Civil Rules provides that “if an official report...of a case is available, that report is to be used for the bundle of authorities.” The Supreme Court Rules have a similar provision. But often, judges do little to enforce those provisions.
Another challenge we face is how to accommodate the growing number of unrepresented litigants. They too must have access to legal information. It would be good if they could access the information contained in law reports. In New Zealand, and in Australia now, steps are being taken to encourage more litigants in person to use the authorised version of the judgments. These include the pay-per-view online resource of the New Zealand Law Reports. NZLII assists with that by providing hyperlinks through to enable browsers of its service to access a click-and-pay copy.
To conclude, New Zealand has now had 140 years of continuous law reporting in New Zealand. This has produced a great wealth of information as to the body of law that is New Zealand law. It also provides an important historical record, particularly important in New Zealand to work out important relations between the tangata whenua of this nation, and those who have arrived over the last 200 years. The proverb which Peter Spiller, a legal historian in New Zealand, sourced from the introduction to Tai Whati, a publication of judicial decisions affecting Maori and Maori land, issued in 1983 is instructive:
Ka whakarereke te nuku e nga tai whati — each wave breaking on the shore alters the landscape slightly.
— Chief Justice’s speech from Consultative Council of Australian Law Reporting 38th Annual Meeting.
