Why 'private courts' are booming

Judge Jock

Jock Anderson

It is fitting in the week when former Auckland Crown prosecutor Mark Woolford was sworn in as a new High Court judge to consider why judges risk redundancy.

MORE FROM JOCK ANDERSON: Weird courtroom slanging match

Judge Jock’s mate Anthony Grant, of Radcliffe Chambers, was on the ball the other day when he spoke about the flight of potential litigants away from the courts.

Mr Grant reckoned more and more folk were being driven to arbitration, mediation and other initiatives to resolve disputes rather than go to court.

He is quite right. The swing towards “private courts” has been in full swing for some years.

With membership of the Arbitrators and Mediators Institute (AMINZ) now standing at 700, more disputes are being settled through this route because it is cheaper, quicker and binding.

If you don’t want your dispute picked over in a public courtroom or exposed by creepy little newsmen this is the way to go.

While AMINZ president Ann Edge couldn’t give figures on how many disputes went AMINZ’s way, Mrs Edge told Judge Jock a significant increase in membership in the last year indicated a greater use of arbitration, mediation and adjudication.

Leading lights in the “private court” system include Auckland law professor Bill Hodge and former High Court judges Sir Ian Barker, Bob Fisher and Barry Paterson and former Master Tomas Kennedy-Grant.

Anthony Grant was on the button when he noted there was hardly any High Court civil litigation outside Auckland. Some High Courts go for weeks without any civil cases.

At a recent Bar Association conference one judge was heard to wonder if the system was in a “death spiral.”

Lawyers also want judges to deal with cases within their designated specialist area. Some judges want a broader range of work.

But as Judge Jock has long campaigned, the courts do not exist for the convenience of judges – nor, for that matter, do they exist for the convenience and purses of lawyers.

Courts are for the maintenance of a credible system of civil justice, as Mr Grant rightly agreed.

But wait there’s more.

In his latest utterance, Mr Grant said he was aware of at least one enterprise that was so mistrustful of the senior courts it would not do business in New Zealand, unless the parties it contracted with agreed that all disputes would be litigated offshore.

He also reckoned other enterprises were not willing to do any business in New Zealand because of their lack of confidence in the courts.

Chief High Court judge Justice Helen Winkelmann is so concerned she’s got together with Justices Geoff Venning and Forrie Miller to figure out how the High Court can be made a more satisfactory forum for dispute resolution.

So where does that leave former Meredith Connell partner and now Justice Woolford, as he steps out on the next stage of his legal career?

Twiddling his thumbs on the criminal bench where, one droll observer opined, a judge’s most useful talent was observing tea breaks and keeping jury members awake?

Meanwhile, down at The Northern Club, members mourn – after 70-odd years of coining it at the estate’s expense - the hasty settlement in Jarndyce and Jarndyce.

Frock up or frock off
Judge Jock is partial to a bit of dressing up.

He is delighted to see a revival in courtroom custumery being led by law society big wigs.

Bring back wigs, gowns, bibs, tuckers, knicker-bockers, frock-coats, lum hats, buckled shoes, the works.

As a baby jurist Judge Jock was always pleased to observe a certain delightful lady brief before him, fetchingly clad in racy gown, wig, black stockings, suspenders, high heels, a saucy smile and little else, Yer Honour…(Quick, get his pills…Ed).

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4 Comments & Questions

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The Courts and the Judical system have finally worken up to what happens when you ignore your customers and dont deliver what they expect.

They go elsewhere. Sadly far too many of the Judicary are unable to deliver common sense verdicts and quite unjustly blame the law for their idiocy.

Of course the legislators and regulators are also guilty of dumbarse thinking lacking common sense and passing stupid laws.

So the net result is that thinking people bypass the dumb system.

The civil Courts will continue to shrink until the legilsators and the Judicary wake up and smell the coffee

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Excellent commentary, and it is indeed a risk for the courts as they continue to follow traditions, some of which vital but others out of step with the modern world, yet so intertwined that it's little wonder many lawyers, judges and administrators can't easily distinguish between them.

In Australia another risk has also become evident (and to some extent here too); of arbitration adopting so many of the hidebound rules (with retired judges and lawyers for the parties comfortable with) that many of the benefits of alternative resolution, particularly speed and cost, are lost.

If New Zealand's arbitrators avoid following their Australian colleagues too closely, the civil courts really will have to wake up to retain their relevance at the top end of town.

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... you're allowed to set up a private court to compete with the government courts but you're not allowed to set up a private road to compete with the government roads? It appears some government monopolies are more sacred than others.

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Marcus Einfeld was an Australian Judge. He lied on a stat. declaration as to who was driving his car when it was photographed speeding. The fine was $77.
It turned out the driver Einfeld named had been dead for 3 years. Einfeld is now in prison complaining about his mental state.

Australia has a more rigorous approach to Judicial/legal corruption. Galbraith and Wilson would not survive over here.

It was a "creepy little news person" that revealed Einfeld's corruption.
Hopefully, reptiles from the NZ press will continue to crawl all over the NZ legal system.

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