2 February 2010

Supreme Court - physical and virtual settings

For what it's worth, can I go on record saying I quite like the new Supreme Court building.  And as one of the few that regularly attended the basement sitting in the High Court, it will be quite nice to hang out in slighly more functional and grand environs.

But a post on the new Supreme Court blog reminded me that the success of a final appellate court is much more than its physical setting - virtual interaction with the community is also important.

In the blog post reproduced below, the editors of a UK blog on their new Supreme Court focus on provision of information from the Court.  A wish list for virtual access to justice.

Generally our Court does okay - we have access to some of the information. But it would be nice to see some of the other information provided as well.

UKSCblog: "Supreme Court - information wish list"
As the Supreme Court opens its doors for business for the first time, we put forward our "wish list" of information that we would like to see from the Court.   We don't expect everything to be available all at once but everything on our list is already available from one or more Supreme Courts round the world.  If it was all available it would greatly increase transparency and public understanding of the cases being argued in the Court.   It appears that some of this information will be available once the Court starts sitting.   In her recent speech - discussed on this blog - Chief Executive Jenny Rowe mentioned that when everything is working fully key information from the case management system will be publicly available via the website.  We will keep our readers up to date with what comes out.

The "wishlist" is as follows:First, a "Judicial Sittings" list which includes full information about the appeal - the unique cite of the decision appealed against, a brief description of the subject matter of the appeal, the identity of the solicitors acting for the parties.  The Canadian Supreme Court has a list of all cases ready for hearing with their "docket" number.  A search against this number gives all the information about the case including the information mentioned in our next point.


Available online (http://www.courtsofnz.govt.nz/about/supreme/case-summaries/supreme-court-case-summaries/case-summaries-2009). Basic information only.  But not easily searchable. And no longer are embedded links provided to the judgment under appeal.

Second, the statements of facts and issues and the parties written cases.  For example, the Canadian Supreme Court provides, as part of the case information for each case, the written cases ("the factums") filed by each party, see for example, those in the pending case of Queen v Cunningham.  Similarly, the US Supreme Court directs users of its site to publicly available "merits briefs".  These can also be found on the wonderful ScotUSblog.  "Heads of Argument" are available for pending cases in the South African Constitutional Court (by clicking on "forthcoming hearings" on the home page and following the links, see for example, heads of argument in Poverty Alleviation v President of the Republic)


We're still reliant on the grace of counsel - or a formal application to the registry to inspect the files - to obtain submissions and the like.

Third, listing of applications for leave, interim orders and all the other activity of the Court.  Such a list could be found (with difficulty) for the House of Lords (in the "House of Lords business" section of their website).  The High Court of Australia, for example, publishes "Business Lists" dealing with all leave applications and other matters being dealt with by the Court.


Some information in the case summaries (http://www.courtsofnz.govt.nz/about/supreme/case-summaries) and daily lists (http://www.courtsofnz.govt.nz/business/calendar/daily-lists) but otherwise hard to locate.

Fourth, a transcript of the hearings.  If the High Court of Australia can do it, so can we.  See, for example. the transcript of the hearing on 27 and 28 August 2009 in the case of Arnold v Minister Administering the Water Management Act 2006.


The real gem of the Court's online repository (http://www.courtsofnz.govt.nz/from/transcripts//from/transcripts/supreme-court-transcripts-2010).  These have proved incredibly valuable.  But there is a long lag in their production.  Presently, only up-to-date up to the middle of October 2009 meaning, for example, the fascinating oral argument in Saxmere (No 2) is still not yet available.

Fifth, a webcast of the hearing.  The Canadian Supreme Court does it (see, here) and so does the Court of Human Rights, see, for example, the webcast of the recent hearing in Carson v United Kingdom


This tops my wish list.  There must be the capacity to provide this.  Those folk who have attended the Court in the basement will be aware that the hearing is piped through via video into large screens in the foyer.  Separate cameras are locked on the full bench, each individual judge, and counsel.  A number of times I've sat in the foyer with work or marking while watching a hearing unfold.  But this really should be an option for those outside Wellington.  Please!

Sixth, as much notice as possible of the handing down of judgments.  The House of Lords used to give 6 days notice.  In contrast, the Supreme Court of Canada gives 2 to 3 weeks.


Daily lists only (http://www.courtsofnz.govt.nz/business/calendar/daily-lists), available only from 5pm the day prior, with no formal advance notice.  And the Decisions page (http://www.courtsofnz.govt.nz/from/decisions/judgments) is often slow to update.

Seventh, a "media summary" of the Judgment when it comes out - shortly stating the issues and the decision.  This is common practice in Courts such as the High Court of Australia, the South African Constitutional Court (see the Recent Judgments list on their website).   These have been promised by the Supreme Court.


Routinely available on the Decisions page (http://www.courtsofnz.govt.nz/from/decisions/judgments).

Eighth, regular "Court Bulletins", telling us what the Court has done and will be doing, including lists of all the pending cases.  This is done in many countries such as  Canada  (weekly) and Australia (monthly)



Something to watch.  Hopefully our Court can build on these basic building blocks to ensure its virtual environment is as grand and transparent as its physical one.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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