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Browse the 1966 Encyclopaedia of New Zealand
Graphic: An Encyclopaedia of New Zealand 1966.


This information was published in 1966 in An Encyclopaedia of New Zealand, edited by A. H. McLintock. It has not been corrected and will not be updated.

Up-to-date information can be found elsewhere in Te Ara.



Type and Character of Courts

The Supreme Court has existed since its first constitution in 1841. On the other hand many lower Courts with many names were experimented with at first. There gradually emerged three tiers of Courts with original, as distinct from purely appellate, jurisdiction – Supreme Court, District Courts, and Magistrates' Courts. The germ of these last was the Resident Magistrates' Courts, established by ordinance of the Legislative Council in 1846, and the general criminal jurisdiction of Justices of the Peace. District Courts fell into disuse and were abolished in 1925. The highest Court in New Zealand is the Court of Appeal, set up in 1862 and reconstituted in 1957. The procedure of the Courts has likewise undergone much change over the years, in many instances prompted by reforms in England; but there has been no reluctance to anticipate or innovate where this has been thought advisable.

Government and people have always taken for granted the independence and incorruptibility of the Courts. These have certainly enjoyed a merited respect that has occasionally become a too-uncritical reverence. The first Chief Justice was closely associated with early legislation, and as late as the sixties we find published reports by Judges on legislative and other matters. More recently, the judiciary has held itself strictly aloof from public affairs.

The generally accepted concept of the functions of the Courts in New Zealand is a narrow one. Judges usually follow English decisions scrupulously, and lip-service at least is widely paid to the fiction that Courts simply apply existing rules to cases coming before them. These things have helped to protect the judiciary from controversy. On the other hand they have meant that the role of our Courts in developing the law has been slighter than in England or Australia and stands at the opposite extreme to the position in the United States.

A characteristic of New Zealand law from the beginning has been the free use of legislation to remedy evils and improve conditions. The immediate task was to adapt English law more closely to the colony's needs, and this produced a spate of Legislative Council ordinances. The first reaction of James Stephen, Under-Secretary at the Colonial Office, was that there had been “a morbid propensity to interfere with everything”, though he later admitted that wisdom had been shown in placing the law of the new colony on a right and durable basis. While the extent and novelty of this legislation has sometimes been exaggerated, what had to be done was done soundly. This is notably true of the major reforms effected by the Deeds Registration and Property Law Ordinances of 1842.