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University of Technology Sydney Law Research Series |
Last Updated: 21 August 2017
The First Procedural Code in the British Empire:
New Zealand 1856
In 1856 New Zealand enacted a new regime for civil procedure. In so doing, it became the first colony in the Empire to create a comprehensive code of civil procedure. Innovative and wide-ranging, its authors drew on multiple sites from around the Empire (and beyond), instituting reforms not yet possible in England, and establishing the foundations for New Zealand’s modern system of civil procedure. This article traces the origins of, and inspirations for, the 1856 Code. It focuses on two key aspects of reform: pleading and ‘fusion’. The article seeks to draw attention to the neglected history of procedure in general and to the place of New Zealand in the story of nineteenth century procedural reform in England and its Empire in particular.
Shaunnagh Dorsett[*]
Introduction
In 1908 New Zealand enacted its first Judicature Act (so-called), some 30 years or more after the coming into force of the English Judicature Act 1873.[1] Unlike that Act, the New Zealand Act was hardly momentous. While the 1873 Act ushered in significant changes to the English legal landscape, the 1908 New Zealand Act was a prosaic piece of legislation which simply consolidated and amended previous laws relating to the jurisdiction of the Supreme Court and the Court of Appeals. It set up a system of inferior and superior courts and guaranteed judicial tenure. The only provision which in any way seemed to echo the changes of 1873 in England was s 99, which mirrored s 25(11) of the Judicature Act 1873, and provided that in the event of a conflict between law and equity, equity was to prevail.[2] Even that section was not new, having been already enacted ad hoc in 1882.[3]
The English Judicature Acts were one culmination of a process of civil reform which had been underway across much of the nineteenth century. Beginning in the early 1830s, a series of reforms had been undertaken designed to improve the speed of court actions, to render them less costly and to eliminate the complexities of procedure which could be exploited to delay and frustrate court litigation. Both the procedure of the superior common law courts as well as that of Chancery were ripe for reform and parallel processes of simplification took place across an almost fifty year period. As part of this process, measures were implemented to bring closer together and to integrate legal and equitable processes, culminating to some extent in the ‘fusion’ of common law and equity through not just the Judicature Acts, but the consequent court rules developed under their auspices. ‘Fusion’ is a debated term. Here it refers to what might be termed ‘administrative fusion’, including therefore such measures as enabling courts in one system to award remedies available in another or to allow defences available in one system to be raised and adjudicated in another. This was not a ‘substantive fusion’ in the sense of a melding of common law and equity. Rather judges were able to draw from both and, importantly, a common procedure could be developed in order to get matters going and to proceed, regardless of whether the law being applied originated at law or in equity.
The implementation of the English Judicature Acts in the Australasian colonies generally was slow and piecemeal.[4] New South Wales, most famously, did not pass its own version until 1970, having steadfastly rejected the English judicature reforms for almost a century.[5] In part, this is because there were never separate courts of law and equity in the Australasian colonies. All colonies conformed (at least post 1824) to the model of a single Superior Court, vested with the jurisdiction of the English courts of Chancery and that of the superior common law courts at Westminster, as well as some ecclesiastical jurisdiction.[6] This institutional unity says nothing, however, about how the courts managed the relationship between law and equity, a matter which diverged significantly between colonies. In general, one court did not mean that there was ‘mingling’ of law and equity available. To the contrary, they were usually kept rigorously separate.
At the other end of the spectrum to New South Wales was New Zealand. It also did not implement the English reforms as such, but for quite a different reason. It was simply unnecessary, many of the English reforms having already been anticipated, first by the initial Supreme Court rules in 1843/1844 and then in New Zealand’s 1856 reforms. These 1856 reforms constituted the first Civil Procedure Code in the British Empire, enacted just three years in advance of the far better known 1859 Indian Code of Civil Procedure.[7] This latter code, however, was limited in application, in so far as it did not apply to the Supreme Courts in the Presidency Towns. Moreover, it was quickly determined to be “ill-drawn, ill-arranged, and incomplete”, and was finally replaced by a comprehensive code in 1877, which in turn was completely re-cast in 1882.[8] By contrast, New Zealand’s 1856 Code provided the underpinnings of New Zealand’s modern system of civil procedure. In 1881, on being tasked to consider what might be needed for a modern civil procedure system for New Zealand, the Law Procedure Commission simply noted that any further reforms made would only follow in the footsteps of the early pioneers: Chief Justice Martin, Justice Chapman and (to a lesser extent) Justice Stephen.[9]
Around the Empire, and across the nineteenth century, colonial judges were implementing innovative and sometimes radical changes to English civil procedure. They were adapting English court practice to the circumstances of their colonies. At the same time as the process of reform went on, piecemeal, in England, colonial judges were providing workable examples of solutions to many of the issues that bedeviled the process of reform at home. Yet little, if any, attention was paid to these. While journals such as the Law Review or Law Magazine very occasionally commented on them, mostly they seem to have been ignored in England. This article, then, offers a key example of this innovation, drawn from one of England’s most far flung colonies. Historians have neglected the history of civil procedure in favour of that of substantive law, perhaps in part because of its complexity, and in part because of the comparative difficulties in tracing those reforms.[10] Yet, as is obvious to those involved in the modern day to day administration of law, procedure is no less important to the law’s capacity to respond to both individual needs and to societal changes and the consequent expectations of a legal system. This was perhaps more apparent in the nineteenth century, the heyday of reform, but is no less true today. Moreover, the history of private law generally lags behind that of many other areas. The article focuses on two main (and inextricably intertwined) aspects of reform: pleadings (including joinder); and the abolition of the forms of action. In so doing it focuses on New Zealand’s 1856 procedural code. The article also looks to the laws and places from which the New Zealand reformers drew their inspiration. As such, this article also joins a growing body of work which is seeking to understand and uncover the information flows and the networks of the Empire.[11] This is, therefore, as much a story of Empire as it is of the efforts of judges in one small outpost of that Empire to provide a system of civil justice suited to the circumstances of their colony.[12]
Civil Procedure Towards the end of the Nineteenth Century
In 1882 a Commission appointed to inquire into the constitution, practice and procedure of the courts in New Zealand handed down its final report.[13] Chaired by the Chief Justice, James Prendergast, the Committee Secretary was Martin Chapman, son of one author of the 1856 Code. The report covered all courts in New Zealand, not just the Supreme Court, as well as the creation of rules for the divorce and matrimonial jurisdiction of that court. It seems that the significant driver for the Commission was the cost of litigation in the Supreme Court. Significant business was being taken to the District Court because of its simpler procedure, expedited process and lower cost, suggesting a ‘re-visit’ of Supreme Court procedure was necessary. It were, there seems, two options: extend the jurisdiction of the District Court or simplify Supreme Court procedure in, as one newspaper editor put it, “the direction of expedition and cheapness”.[14] While not mutually exclusive, the Commissioners focused on the latter., refusing to extend District Court jurisdiction in town where the Supreme Court operated and simplifying procedure so that the “so as to enable cases now disposed of in the District Court to be disposed of as quickly and cheaply [in the Supreme Court] as they now are in the District Court”.[15] Undoubtedly a revisit was also timely, coming some years after the ‘bedding down’ of the English Judicature Act reforms.
While the Commissioner’s 1882 Final Report was brief, appending the suggested amendments, more detail on their approach to procedure can be gleaned from the interim report issued the year before. The Commissioners stated that in reviewing procedure they were guided by several principles. Most notable was the first: “that the laws of the colony shall be administered as one organic whole, irrespective of any division into law and equity”.[16] In light of this, “[t]he desirability of bringing about a fusion of the systems of law and equity is now admitted to be the chief object that ought to be kept in view in any attempt to reform civil procedure”.[17] Coming a decade after the reforms of the English Judicature Acts, it is tempting to read this as a desire for New Zealand to follow in the footsteps of reformers at ‘home’ and to implement similar reforms. However, in this regard, there was little to do. Not only had there never been separate courts administering law and equity (or even separate divisions of the one court),[18] but there had been a level of at least administrative fusion since the first rules of court (1843). New Zealand already had a comprehensive code of civil procedure, implementing the major reforms later brought about by the English Judicature Acts and the majority of the judge’s rules passed under the authority of that Act (so far as they were applicable to one court with no divisions). And so, noting that the recent English reforms had been made in furtherance of the same principles that already underlay New Zealand procedure “[a]ll that seems necessary to complete the work is an Act providing for the cases in which there is a conflict between the two systems”.[19]
A series of resolutions passed by the Commissioners was appended to the 1881 Interim Report. Effectively these were preliminary decisions which would provide the scope for investigations and the final report. Of these, most related to court jurisdiction, rather than procedure. Resolution 4 recommended that the district courts be abolished and the procedure of the Supreme Court be modified to enable those cases currently tried in the district court to be speedily resolved by the latter body. Other than this, there were only a few brief recommendations on very specific matters of procedure.[20] The committee received suggestions from both practitioners and district law societies as to procedural changes. The Canterbury District Law Society was in favour of simply replacing most existing law on the matter and replacing it with post-Judicature Act English practice.[21] However, almost everyone else who submitted was in favour not only of retaining New Zealand’s existing simplified system, but of enhancing it, particularly in the area of pleading. Almost all suggestions in this category amounted to two ideas: first, to reduce the number of steps allowed in pleading to two only, the declaration and defence; and, second, abolition of the demurrer. Mr Brandon (presumably the Mr Brandon admitted in the 1840s in Wellington) advocated a return to the procedure under the original 1844 rules of court.[22]
When the reform process was finalized, the main thrust of the procedural reforms was, as requested by many of the submitters, a simplification of pleadings. Only two stages were permitted: statement and defence. The Commissioners hoped that this would accelerate the trial process and circumscribe the power to use pleadings to delay progress of the case.[23] As support for this reform, the Committee pointed to recent proposed changes to the English rules in the Judicature Bill (1880), relying on a report of it in the Law Magazine, and the tendency they observed in England not only to simplify pleadings, but to do away with the need for them entirely in some local courts.[24] The Commissioners looked widely for their inspiration, relying not just on English examples, but others from the Empire and beyond.[25] In particular they noted the Indian Code of Civil Procedure which they believed “represents the views of distinguished English jurists” and which did not require pleadings.[26]
There were, of course, other amendments, particularly the new parts on matrimonial causes, some changes to bills of exchange, and to the rules on execution. The new code was much shorter and more direct than its predecessor, stripping the last vestiges of the complex pleading of earlier eras. But in many ways the Commissioners remained within a genealogy of innovative procedure that originated in the very first rules of the Supreme Court of New Zealand and which had been continued by the 1856 Procedural Code.
A Brief Background: 1843-1856
In the two decades after 1823 a
series of new charters of justice were issued, and local ordinances passed,
creating new supreme courts
across the empire, and granting them much of the
jurisdiction of the superior courts of Westminster, including, of course, that
of
the Court of Chancery.[27] At the
same time, beginning with New South Wales in 1824, judges were given the formal
power to draft their own rules of
court.[28] This was a decade ahead
of their English counterparts.[29]
Rules of court, therefore, became the main forum through which judges could
modify English procedure for the circumstances of their
new colonies. In the
main, modifications took the form, at least in colonies in which the supreme
courts administered the common
law, of a set of rules which modified specific
aspects of English procedure, leaving it otherwise intact. Post-1823, most
commonly
aspects of common law procedure, particularly pleading, were modified,
but English equity procedure was used, largely unamended.
The ordinance
establishing the Supreme Court of New Zealand conferred upon that court an
almost identical jurisdiction to that of
most supreme courts in the Empire
created post-1824: namely legal, equitable and some ecclesiastical
jurisdiction.[30] The court had,
therefore, an almost identical form to that of other Australasian supreme
courts. All (except Western Australia) were
single courts exercising multiple
jurisdiction.[31] This, however, was
generally not some early form of ‘fusion’ – administrative or
otherwise. All courts in the Australian
colonies continued, to varying extents,
to administer law and equity separately. The degree of separation, however,
cannot be seen
from their founding ordinances and the jurisdiction granted, but
lies in their court rules and the way in which their judges chose
to administer
these new single superior courts. For example, r 2 of the Forbes CJ’s 1826
Rules specified that: “the proceedings
of the said Supreme Court within
its several and respective jurisdictions ... shall be commenced and continued in
a distinct and
separate form”. This rule remained in place until 1841,
when the separation of the two jurisdictions was further entrenched
by the
dividing the Supreme Court into Law and Equity divisions. In several cases the
Supreme Court noted its inability to proceed
wher to do so would be “to
blend... the Court of Equity with a Court of Law, which we ought not to
do”.[32]
The first
court rules for the new Supreme Court of New Zealand were drafted en route from
England to New Zealand, aboard the Ship
“Tyne” by William Martin,
the first chief justice of New Zealand, William Swainson, the second
attorney-general and Thomas
Outhwaite, the first
registrar.[33] These first 1843
Rules were followed quickly by a slightly modified version in 1844,
re-drafted with the aid of the first puisne judge of the court, Henry
Samuel Chapman.[34] The 1843/4 rules
were designed to do two things. First, they radically modified some aspects of
English common law procedure –
in particular the abolition of most of
English special pleading – and it assimilated equitable procedure to the
new modified
common law
procedure,[35] resulting in new
uniform rules; second, they attempted to stop the ‘double
litigation’ which characterized the English
system before the Judicature
Act. The key was r. 28 of the 1844 Rules, which concerned the process by which
matters of both fact
and law were brought to issue. Rule 28 required all parties
to appear before the judge who would examine the parties (or their solicitors)
to elicit the point in issue, and reduce it to writing and enter it into the
Record book. This would include the material statements
of the parties, and
taking note of any defences available at common law or equity. Rule 27 stated
that the general issue could not
be plead, while r 30 required any set-off to
also be included. Rule 29 further required that
[e]very document forming any part of the case (as distinguished from the
evidence of either plaintiff or defendant) shall be specified
on the face of the
record, and identified by description date and parties, so far as it may be
possible for the party alleging such
document to identify the same.
Rule
28, therefore, ensured that the matter was brought to issue in chambers by a
conference between the solicitors and the judge.
The judges of the Supreme Court
noted some years later that that the value of making up the issue in this manner
was that the:
Court made itself responsible for the form of the pleadings, removing all
devices which promote ‘expense and delay’...
. Secondly, by adopting
specific allegations, commencing with the declaration, and omitting all
fictions, the Court and the parties
were informed at once of the real and
substantive question in dispute between the parties, barred of every averment
not necessary
to its merits; and the expense of the trial was greatly diminished
.[36]
All “civil
complaints” were initiated by a common procedure, namely the summons. The
use of a summons, given that the
rules were written over a decade after the
passing of the English Uniformity of Process Act, was hardly
surprising.[37] However, unlike
English practice, all actions were commenced by a writ of summons in any civil
matter, legal or equitable (rule 12).
The summons was accompanied by a form of
“particulars” (rule 15). The particulars were required to be
“explicit”,
and to “set forth the demand in a simple and
compendious manner, specifying items dates and amounts”. The writ
specified
a day for the defendant (or their barrister) to appear before the
judge. The defendant produced their reply. Then “copies with
objections
and proposed issues where left at the Supreme Court office three days before
appearance-day, so that the judge may have
an opportunity of perusing them
before appearance-day”.[38]
One of the most obvious consequences of assimilation was that in all
actions, legal and equitable, evidence was given viva voce before
the judge,
thus dispensing with the need for interrogatories and cross-interrogatories in
equity. All matters of fact were put to
the jury. Nor was there a Masters’
offices in New Zealand, the abolition of which at that time in England it was
argued by
some would be a significant step towards procedural
assimilation.[39] In 1856 the judges
declared the ‘experiment’ of the first rules a success. While the
rules were not perfect, the simplification
and assimilation of equity procedure
was considered to have been a success, leading to “certainty and
intelligibility of the
issue” and with great cost saving at trial where a
determination of fact was
required.[40] Moreover, they
provided a base upon which to design the new rules, ones which would be more
suited to the needs of an increasingly
complex commercial environment.
The advantage of a single court and uniform rules was that it allowed
for the concurrent administration of law and equity in one court,
a feat which
pre-dated the New York Field code by some five years, as well as the largely
unsuccessful attempts of other colonies
(South Australia, New Brunswick and, to
a lesser extent, Nova Scotia) by a decade, and which was not achieved
in England until the Judicature Act.[41]
As well as addressing the problem of different procedures at common law
and in equity, the rules also went some way towards addressing
the ‘double
litigation’ problem that continued to plague the English courts until the
Judicature Acts. However, as with
the later Judicature Act the rules did not
amalgamate two distinctive bodies of law, but gave concurrent jurisdiction.
The rules were clearly designed to avoid what Chapman called the
‘circuitry’ of the law/equity divide which characterized
English
practice pre-1873. Prior to this time, when a question involved
matters of both common law and equity it had to be commenced in two courts.
Where a plaintiff
wished to have proceedings at common law stayed in order to
establish any rights in equity s/he was required to obtain a common injunction
in Chancery. The result of r 28 was, however, that:
[t]he defendant is allowed to set up, in the form of a plea to the action,
any defence available by the law of England as administered
either by Courts of
Law or of Equity. The defendant thus gains directly that benefit which, under
the system of divided jurisdiction
as existing in England, he could only gain
indirectly; namely, by obtaining an injunction by a suit in the Court of
Chancery. The
necessity of commencing a second action, for the purpose of
restraining a plaintiff from proceeding in the first, is thus
obviated.[42]
Therefore, for
example, an equitable defence was always pleadable in the original action. A
simple illustration might be Pownel v Fitzherbert, an 1844 case in which
laches was pleaded as a defence to an action for money had and received on a
promissory note.[43]
There
was no equivalent in the 1844 Rules of section 25(11) of the Judicature Act
which provided that where there was a conflict or
variance between the rules of
equity and those of the common law, equity was to prevail. It was probably
unnecessary. The primacy
of equity had been accepted since the aftermath of the
Earl of Oxford’s Case in
1615.[44] Nevertheless the 1844
Rules did retain a mechanism through which the primacy of equity could be
maintained. In England that was the
common injunction (abolished by s 24(5)
Judicature Act 1873). In New Zealand, where a supposed equitable right might
exist (and presumably
had not been pleaded from the outset), a motion upon
proper affidavit to stay proceedings in the cause was available. According to
Chapman J in Scott v Grace, as the court was both a court of law and a
court of equity
this mode of proceeding [i.e. a motion to stay proceedings] has been deemed
more convenient, less expensive, and more in accordance
with the general spirit
of our rules and the constitution of this Court than the mode of proceeding in
the courts of equity at home.[45]
1856 Procedural Code
Thus by mid-century the New Zealand Supreme
Court had gone beyond other courts in the Empire in simplifying procedure and
introducing
a level of ‘fusion’. However, by that time the
limitations of the simplified system were becoming apparent in a rapidly
commercializing colony. In 1849 Governor Grey appointed William Martin and Henry
Samuel Chapman “Commissioners to Inquire into
a System of Procedure for
the Supreme Court of New Zealand”. Chapman was replaced by
Sidney Stephen in 1852 (although by this time much of the work had already been
done). Their remit noted that the “rules of practice and of
pleading in the . . . several Courts are very various and conflicting,
and in
many respects wholly inapplicable to the circumstances of the said Colony, and
wholly unsuited to a Tribunal of general jurisdiction”.
They were to
design a “uniform, simple and efficacious system of procedure”. They
were to have “in view the the
union of the several jurisdictions of the
Supreme Court”.[46]
In
many ways, this was an odd remit. Despite the fact that the 1856 rules were
built on the foundations of the original 1843/4 rules
(as acknowledged by the
Commissioners themselves), there was a sense in which the remit read as if the
Commissioners were starting
from scratch. That the Commissioners also took this
approach might be seen in the declaration that the original rules had been
“provisional”,
an appellation and status they certainly had not been
given in 1843/4.[47] Moreover,
there were not various courts with conflicting rules of practice and pleading in
this period. The Supreme Court was the
only superior court in the colony. The
Court of Requests had been closed by Governor Grey the previous year and all
business had
been redirected to Grey’s new Resident Magistrates
Courts.[48] These latter tribunals
were courts of equity and good conscience and therefore were run along informal
lines with minimal formal
procedure, lay magistrates and no professional
participation. It may be, perhaps, that the Commissioners felt that the formal
remit
would give them the authority to pursue what was, after all, reasonable
radical reform. This was an authority they had not had in
1843 when Martin CJ
had taken it upon himself to simply dispense with much of English special
pleading and to begin the process of
fusion.
Moreover, the judges were
ambitious for their reforms. Martin CJ, with the aid of Chapman J and some
later, minor, input from Stephen
J, spent almost seven years working on the
procedural code. It was clear that Martin saw this as one of his most
significant legal
achievements, referring to it in a letter to Chapman as
“our great work” and acknowledging it had come to take the place
of
the sons and daughters he and his wife Mary had not been able to
have.[49] Chapman, an avowed
Benthamite, had already written to his father of the opportunity provided in a
new colony for implementing ‘B’s’
ideas in
practice.[50] For many colonial
judges in the nineteenth century the power to draft their own rules and their
placement in colonies gave opportunities
to effect lasting reform that would not
have been available to them had they continued their quiet practices in England.
New Zealand
offered a chance for Martin and Chapman to do the same. Few judges,
however, went as far, or were as successful, as these two. Their
first report of
1852 (on pleading) was followed by a second, in 1854, concerned with general
procedure and minor matters of pleading.
The rules were enacted in
1856.[51] Overall, the 1856 Rules
maintained the commitment to simplified pleading and the concurrent
administration of law and equity, but
also sought to develop a procedural code
more suited to the changing circumstances of the colony.
Pleadings
In 1851 the Law Magazine; or Quarterly Review of Jurisprudence,
recounted the presentation of the new Code of Procedure for New York by Dudley
Field to the Law Amendment Society in
London.[52] The purpose of the Field
Code, as is well-known, was to abolish the forms of action and pleadings at
common law, abolish the distinction
between legal and equitable remedies, and
establish a uniform system of proceeding in all
cases.[53] The Law Magazine,
a generally pro-reform publication, endorsed the new Code. While there was
little evidence yet of how it would work in practice,
the editors were
cautiously optimistic that it would stimulate English law reformers to
“contemplate a radical and efficient
reform” – reforms that
would would take some time to achieve in England. Yet in New Zealand, many of
these reforms were
already taking
place.[54] If the Field Code was the
first (partial) procedural code in a country which received the common law, then
New Zealand’s was
the first in the Empire.
In 1843 Martin acknowledged
that in formulating his initial rules of court he had drawn upon the experience
of a number of jurisdictions,
not all common law, stating that he was indebted
to the example of the Cape of Good Hope and Ceylon; and to the practice of
Western
Australia and New South
Wales.[55] In the 1852 Report, the
Commissioners were influenced primarily by the Reports of the English Common Law
Commissioners (although
they were somewhat silent as to which Commissioners),
the practice of the Scottish Court of Session, and Dudley Field’s famous
New York code. They also looked to the 1849 reforms of the Supreme Court of
Bengal.[56]
The New York Commissioners proceeded on the same basis as had the New Zealand judges in 1843/44. The question to be asked was whether one mode of proceedings, “common to all civil controversies, legal or equitable” could be safely prescribed. While the Commissioners were keen to look at better ways to ascertain and enforce rights, they did not “care to encroach upon substantial rights”.[57] This echoed the early New Zealand approach. As Chapman noted, also in 1848, in Scott v Grace, although procedure at common law and equity had been assimilated, “yet we have been cautious to abstain from encroaching upon any substantive rights either legal or equitable”.
The New York Commissioners started with the proposition that it was impossible to conceive of “blending” law and equity unless there be a uniform means of proceeding”.[58] They noted the differences between pleading at common law and in equity. For the former, the key matter is to “bring the cause to a distinct issue, either of fact or of law...”. While in the latter “the facts of the case may be stated without technicality”. Pleading at law, according to the Commissioners, was a matter of stating conclusions. They wished pleading to be a matter of allegations.[59] Thus, they proposed that the “Plaintiff shall state his case according to the facts and ask for such relief as he supposes himself entitled to”.[60] Long declarations and pleas were replaced with a summons (§106), accompanied by a single complaint consisting of no more than the names of the court and parties, a short recitation of the facts ‘in ordinary and concise language, without repetition and in such a manner as to enable a person of common understanding to know what was intended” and the relief claimed (§ 119). The defendant was to supply his defence directly, the only form of pleading allowed being an answer or demurrer (§121). The grounds on which the defendant could demur were limited (§122).
In New Zealand, as noted above, the early rules were predicated on the importance of identifying the issue. Thus, the deliberate choice had been to assimilate procedure to law, rather than equity, at least with respect to this aspect. As Chapman noted in Scott v Grace “we have endeavored to simplify our practice, and to assimilate the common law and equity procedure with each other, chiefly on the basis and principles of the former”. In their new code, Martin and Chapman remained committed to simplified pleading:
it is necessary for the structure as well as the wordings of our pleadings to be revised; that the indirect and involved averments, used on the old forms, be broken up and the elements of them disentangled; and that the material allegations be presented separate and distinct on the face of the proceedings.[61]
In 1854, the New Zealand Commissioners noted that with respect to the
structure of pleadings they were specifically following the
New York Field
Code.[62] That no great evil would
arise from the removal of the technicalities of pleading was shown, so they
thought, by the practice of
two courts: the English Court of Chancery and the
Scottish Court of Session. The New York Commissioners had similarly noted with
approval the practice of the Scottish courts, as well as those of another civil
law jurisdiction, Louisiana.[63]
While there were acknowledged defects in pleadings in the Court of Chancery,
they were not thought to arise from a lack of technicality,
and the procedure of
the Scottish Court as enacted, was, the New Zealand Commissioners thought, a
legislative endorsement of their
approach.[64] In equity, suits all
started with a bill, while before the Scottish Court of Session declarations and
condescendences and answers
took an almost identical approach to the specificity
of facts and law to be averred.
Thus, in New Zealand there would be one form
of action (or more properly declaration) in all cases. This would consist of a
statement
of the material facts, and a statement of the plaintiff’s claim,
specifying the relief. The Report contemplated that in form
the summons would be
similar that of the Chancery Orders of April 1850. In certain cases, these
orders allowed parties to proceed
by a summons and a simple claim rather than a
bill of complaint.[65] As the
Legal Observer stated: “[t]his appears to be a course of proceeding
as simple and summary as a plaint in a County
Court”.[66] In fact, this had
been the case since 1843. Once all fictions and technical terms were removed,
the Commissioners observed, “there
will remain no difference between one
declaration and another, except as to the substance of the right asserted or the
relief claims”.
In essence, this was a continuation of the 1843/1844
approach. Using trover as an example, therefore, the right to possession would
be the only essential element of the plaintiff’s right of action (rather
than, as was English practice, alleging a right of
action on lawful possession
only or alleging possession growing out of a right of ownership where there has
been no possession).[67] In general,
only four stages of pleading were permitted: declaration, plea, replication and
rejoinder (1856 r 39). All pleadings
were to be in ‘ordinary and
perspicuous language’ (r 40). In their experience, where the declaration
was specific, the
pleadings rarely went beyond replication. The declaration and
all subsequent pleadings were to state all material facts necessary
to
constitute the right of action (rr 40, 41). The declaration was to end with a
statement of the relief required (r 41). Every pleading
subsequent must be an
answer by denial or avoidance. Thereafter, however, the rules were much more
complex than those of the Field
Code, getting into such matters as affirmative
and negative pleas, replications and rejoinders (rr 42-45). While the rules did,
therefore,
achieve a level of simplification over English practice, and,
importantly, were made uniform, they never achieved the level of simplicity
in
pleading of the Field Code.
The former practice of ‘making up the
issue’ was not entirely abandoned, at least in the case of actions for
money (undoubtedly
the most common type of action). Once joinder had taken
place, and the matter was considered to have been ‘brought to issue’
the plaintiff was to deliver “a fair copy of the pleadings” and a
“copy of the Issue or Issues” to the Court
and give notice to the
defendant to appear before the judge (r 125). The judge would “settle and
approve the issues in such
form as to comprise all the material questions of
fact in dispute” (r. 126).[68]
Thus, again, and contra the Field Code, the New Zealand Commissioners
showed a continuing commitment to the common law’s approach to discerning
the
facts upon which the matter would commence prior to trial. Vestiges of
making up the issue survived into the 1882 Code, in the form
of provisions
allowing the judge a significant discretion to settle and amend the issue (1882
Rules, rr. 152-154).
As noted above, the practice of the Court of Session was also specifically endorsed in the 1852 Report. In 1825 the reform of civil procedure in the Courts of Sessions Act set the framework for civil procedure in Scotland to the present day. The Act is still in force, albeit obviously modified. Section 2 of the Act required that the summons set forth “in explicit terms the Nature, Extent and Grounds of the Complaint or Cause of Action and the Conclusions which ... the Pursuer ... shall by the Law and Practice of Scotland be entitled to deduce therefrom”. The section also required the defence to be stated as well as the facts on which this relied. All documents were to be produced (s 3) and s 4 concluded that no judgment could be pronounced until the averments of fact and pleas of law of the respective parties had been set forth and the Record was made up and closed.[69]
The Scottish reform was intended to be a significant departure from previous
practice. Prior to 1825 civil cases in the Court of Session
were determined
primarily according to written pleadings rather than oral argument in court.
Pleadings could amount to hundreds of
pages and their management and review took
up much of the judges’ time. Oral argument was secondary. Pleadings could
be, and
often were, constantly adjusted throughout the matter. Matters were
lengthy and expensive. Moreover, a further problem perceived
with this system
was that it encouraged the intermingling of fact and
law.[70] Indeed, the system had
similar flaws to those of its English counterpart in the same period. The new
system was designed to settle
pleas and to separate fact and law. As Parratt
explains it “[i]n this new legal order the facts were to be separate and
in
sharp relief. The law was to be expressed as single, individual propositions,
not long and windy expositions and certainly without
any reference to
authorities”.[71] This was
exactly the approach taken by many colonial reformers, including Martin in New
Zealand. That the language of the original
1843/1844 reforms echoed that of the
1825 Scottish Act may not have been coincidence, despite Martin crediting other
jurisdictions
as inspiring his reforms. In the Empire legal forms frequently
moved not directly from metropole to colony, but followed a more meandering
route, taking a new domesticated form in each new location. Martin was just as
likely to have come to the Scottish material through
Roman-Dutch colonies, such
as the Cape or Ceylon, as directly from Edinburgh.
The Forms of Action and Joinder: A Transactional Approach
Providing for simplification of pleadings was not just a way of removing technicality, or of providing for a uniform system of civil procedure for law and equity. It could also the mechanism for abolishing the forms of action. The abolition of the forms of action at common law was a particularly important component of the nineteenth century reform process in England. Prior to the mid-eighteenth century, common law jurisdiction was inextricable from the writ system. The writ was an order from the King under his seal to the Sheriff demanding the defendant appear in court. The writ set out the complaint. The forms of action crystallised around particular writs. Each writ was the foundation of a particular form of action. As a result, the organisation of the common law was inextricable from the forms of action.[72] As Maitland, in the classic The Forms of Action at Common Law, reminded us, each form of action implied a particular original process, mode of pleading and of judgment. Moreover, ‘each procedural pigeonhole containe[d] its own rules of substantive law’.[73] While some forms of action were already falling into disuse by the nineteenth century, some, such as assumpsit, debt and action on the case were still common. From 1832 onwards in England a process of whittling away of the forms of action took place, ending in their final abolition in 1873.[74] The process was, therefore, underway at least prior to the formal settlement of New Zealand.
The New York Commissioners had bemoaned the rigidity of the forms of action (of which there were in New York State at the time 10):[75] “[t]here is no branch of legal science upon which so much curious, and we may be permitted to add, unnecessary learning has been expended...”,[76] adding that the forms of action had been held onto with “a sort of bigoted devotion”.[77] Thus, perhaps the best known, and most famous, provision of the Field Code was s 69. That section proclaimed that
[t]he distinction between actions as law and suits in equity, and the forms of all actions and suits heretofore existing, are abolished, and there shall be in this state but one form of action for the enforcement and protection of private rights and the redress of private wrongs, which shall be denominated a civil action.
The New Zealand Commissioners were similarly tasked by the forms of action and, in particular, the problems of maintaining their boundaries:
the boundaries between the different classes of actions are in many cases extremely indistinct; Judges are still found to differ as to the form to be employed in different cases: and the most painstaking pleader cannot always be secure against an error in this respect.[78]
Law’s approach was to be contrasted with that of equity – where plaintiffs could proceed by one general form of suit. The 1856 New Zealand Code had no equivalent of s 69 of the New York Field Code. While the English Judicature Acts are well-known for abolishing the forms of action, nor did those Acts have a s 69 equivalent. Yet for all intents and purposes, the 1856 Code achieved the same outcome in this respect as the Field Code. It was of course the form of the pleadings which resulted in abolition. As noted by Martin, Chapman and Stephen CJJ:
the cancelling of such parts of the old form of declaration as consist of fictitious or merely formal averments, will displace the formal boundaries between the actions, the specific statements of all the material facts of the plaintiff’s case will furnish the means of establishing in lieu thereof, a natural and clear division based on the nature of the plaintiff’s claim.[79]
Having abolished the forms of action, the New Zealand Commissioners went on to establish a classification of actions, carefully noting that in so doing they were classifying actions, not the forms of actions.[80] Such an outcome was, of course, not achieved in England until the passing of the rules under the Judicature Act 1873. According to the report, there were two ways of classifying actions: by reference to the source of the cause of action; or by reference to the form of relief which the plaintiff sought. If one were to follow the first classification then within this category, for example, would be those actions founded on tort. These are the actions in which the plaintiff seeks to recover a pecuniary compensation for an injury caused by wrongful act or omission and by which injury some general right of the plaintiff is infringed. This, therefore, could include personal injury, injury to reputation, liberty or health (or of his family), invasion of right to property, or an exclusive right, such as copyright, or a profit which might have accrued.[81] What underlay all of these was the fact that the legal right which the plaintiff seeks to enforce is a general right, a right to which everyone in similarly placed legal circumstances would be entitled to enjoy against everyone, including the defendant. Contrasted with this is the other category, that in which a special or personal right is infringed. This is one held against the defendant personally, not against the whole world. It is based on a peculiar legal relationship pre-existing between plaintiff and defendant. Examples might include express covenants and contracts, agency and partnership, actions against common carriers, innkeepers, previous dealings such as debt.[82] Suits in equity could also be included in each of these categories. In the first, tort, one could also include perpetual injunctions against copyright or patent infringement (which is actually a tort),[83] and in the latter most of equity’s suits, such as enforcement against trustees. These were seen as “differ[ing] not at all from ordinary actions based on a breach of duty”.[84] Thus, all civil actions were torts or duties. Only penal actions, based on legislation, fell outside this classification.
The other schema of classification could be by reference to the form of relief. Here, the internal breakdown would be money; possession of land or chattel; or specific relief. In the first, the only question is the existence of a right to, and the amount of, compensation. In the second, there would need to be special rules of procedure because the rights of others might also be attached upon the same piece of property, while the third might render necessary whole heads of procedure which would not be needed for the first two.[85]
In the end, it was this second schema which dominated. Thus, in their final form, the new rules were based on a transactional approach (more akin to equity, as the commissioners put it),[86] rather than one in which litigation was based around the character and description of the rights (more akin to the common law). According to the Commissioners the approach of the Court of Chancery was “superior” as
... the whole of the transaction between the plaintiff and defendant is brought before the court at once: and the court endeavours in one action to satisfy all the rights of the plaintiff, to whatever logical or technical denomination they may belong. Whereas the Courts of Law regard less the unity of the action, than the character and description of the rights.[87]
The rules set up a scheme of three kinds of actions: first, those in which the plaintiff seeks pecuniary compensation for a wrong or payment of a debt (‘Actions for Money’) ; second, actions in which the plaintiff seeks to enforce a claim upon some specific property, moveable or immoveable, and to be put in possession thereof (‘Actions for possession of land or of a chattel’); and, third, actions in which the plaintiff seeks some form of relief, other than in the two preceding classes, and which relief he specifies in his claim (‘Action for Specific Relief’) (1856 r 109). No such transactional approach can be discerned in the Field Code.
The classification of actions underlay the critical matter of joinder. In order to bring the entire matter before the court not only was a single court exercising both jurisdictions, and uniform rules, required, but specific attention had to be paid to the rules on joinder. In the case of actions for money, r 110 allowed the joinder of causes of action of whatever kind in the same action, as long as they were against the same parties and in the same rights (excepting replevin). The judges were left with a residual power to order different trials for different causes if they deemed it preferable. The rules simply went on to state that in the latter two categories, possession and specific relief, causes of action arising out of distinct transactions could not be joined (r 112). The next few rules then specified a small number of distinct combinations of actions which specifically could not be joined, for example actions for possession and for equitable relief where the actions arose out of distinct and unconnected transactions (r 113). The Field Code similarly set out combinations which could be joined, although it did not set out a transactional schema. Rather it allowed actions to be joined where they belonged to a group or class of cases. These were contract; injuries by force (to persons or property); injuries to character; claims to property; claims to personal property; claims against a trustee (§ 143). This was more akin to the first transactional scheme suggested by the New Zealand Commissioners. Unlike that of New Zealand it rested more on the rights violated than the relief sought.
The Other Inspiration: Bengal 1849
As noted above, the New Zealand Commissioner’s Report specified that it relied on some aspects of the Field Code, as well as some facets of the procedure of the Scottish Court of Session. However, although they are not referred to in the final report, the Commissioners also scrutinized the 1849 rules of the Supreme Court of Bengal.[88] In 1849 the judges of the Supreme Court of Bengal wrote to the President of the Council of India, laying before him their new rules for pleading at common law (‘the plea side’). Their intention was to simplify pleading generally, and to abolish the forms of action.[89] The judges explained that the current system of pleadings – essentially a modified form of English pleading – was simply too complex for the circumstances of their court. According to the judges practice was already complicated by the need for Advocates before the court to be acquainted not only with English practice and procedure, but to become knowledgeable of “Hindoo and Mahomedan” laws as well. Their main concern, however, was the inevitability of native practitioners claiming admission. The judges felt their time would be better served learning the “principles on which the Laws are based, and of the application of them as illustrated by cases” than the intricacies of special pleading.
The Bengal rules lacked the sophistication of the New Zealand Rules, or indeed those of the Field Code. Rather than being a code, the provisions read as a series of interventions into current practice, simply declaring that certain things, such as the special traverse would not be allowed (r. 11) or that other technicalities, such as the replication de injuria, would be abolished (r. 5).[90] Rather than the technical language of English pleadings, s 2 of the 1850 rules declared that “[p]leadings shall be constructed by the same rules of construction, which would be applied to find out the meaning of any ordinary composition in writing”. However, while technicalities and fictions were abolished, the rules did not allow laxity in pleading. Quite the contrary, like the New Zealand rules they were designed to get to the nub of the matter, to expose the exact matters of fact and of law on which the plaintiff’s case rested.
The Bengal Rules helpfully gave an example of how pleadings should be conducted, based on a hypothetical carriage accident. According to the example the cause of action would be complete by simply maintaining that the defendant negligently conducted a carriage which he was driving and that he drove it against the plaintiff, hurting him. The defendant should simply reply:
If the denial was defective for not saying to what extent the denial is carried, that defect could be cured by another denial. This follows for all subsequent proceedings (r 47).
The simple recitation of what happened and the material facts relied upon in the Bengal rules produced an outcome almost identical to that found in the remaining Record Book of the New Zealand Supreme Court in the early period.[91] As made up by the judges in consultation with counsel, pleadings were summarized, often in single page, consisting of almost exactly the information suggested above.
The Bengal Rules went on the abolish the forms of action. While very
different in form, like the Field Code, s 26 of the Bengal Rules
left the reader
in no doubt: “[t]he forms of action, assumpsit, covenant, debt, debtinue,
trover, trespass, trespass on the
case, and ejectment shall be abolished”.
Instead, four new forms of action were to be substituted, in sentiment not
dissimilar
to the New Zealand rules some five years later, at least in so far
that actions were grouped in a transactional approach based on
relief rather
than rights. These consisted of “an action in money” (formerly
assumpsit, covenant and debt); “an action for
moveable property” (formerly debtinue and trover); an
“action for wrong” (formerly trespass and trespass on the
case); and, finally, an action for immoveable property (ejectment) (r
27). Again, like the later New Zealand rules, the Bengal rules specified the
particular combinations in which actions could be
joined (or not joined) (r 28).
The Bengal Rules were sufficiently interesting that they were one of the
very few colonial examples of innovation which made it into
main stream legal
circles in England. An article was devoted to the reforms in the Law
Review in 1850 in which the rules were reproduced in their
entirety.[92] Whether Martin and
Chapman learned of them though this medium or some other cannot be known,
although here the web of legal and other
connections throughout the Empire may
have played a part. One of the Bengal judges was Arthur Buller, brother of
Charles Buller,
Secretary to Durham, Governor-General of Canada, British MP,
Benthamite and attendee at John Austin’s first lecture series
1829-July
1830. At those lectures Charles Buller undoubtedly met another attendee, avowed
Benthamite and ‘philosophical radical’,
the later judge of the New
Zealand Supreme Court and co-author of the 1852 Report, Henry Samuel
Chapman.[93] There have long been
questions as to the impact of Bentham on legal reform. While it may have not
have been that great or immediate
in Britain, one area in which it was
noticeable and overt was that of the reform of court procedure in the Empire.
Chapman openly
credited Bentham with the inspiration for the 1844 Rules
(although they had been largely drafted by Martin prior to his
arrival),[94] while Cameron’s
notable procedural reforms in Ceylon were the result of deliberate attempts to
implement Bentham’s ideas
abroad.[95]
While changes to
pleading affected only actions at common law, there may have been appetite for
further reform, not dissimilar to
that of New Zealand. The previous year the
Supreme Court of Calcutta had reformed its equity
rules.[96] They were sent to the
Supreme Courts of the other Presidencies. In adopting them for Bombay, the Chief
Justice, Thomas Erskine Perry,
noted (at least according to the Law
Review) that:
I believe that if the terms of our Charter allowed the amalgamation, we
should at once be disposed to direct that all proceedings
brought into the Court
should come in one form, namely on petition and answer. But the language of the
Charter refers too distinctly
to pleadings by way of plaint, and to proceedings
by way of bill in equity, &c., to allow of this alteration being made
without
the interposition of the
Legislature.[97]
The Privy
Council, however, did not show the same appetite for reform. The Bengal rules
came into force in 1850 and were sent were
sent to the other Supreme Courts in
Calcutta and Bombay.[98] They were
confirmed by the Legislative Council in
India.[99] However, in 1851 the
judges were informed that they had been in large part disallowed by the Privy
Council (which had taken the steps
of partially redrafting
them).[100]
The rules were
referred to the Privy Council by Sir John Hobhouse, President of the Board of
Commission for the Affairs of
India.[101] While the Privy
Council acknowledged the “peculiar circumstances” of the Supreme
Court of Bengal, its objection to their
new rules was lack of uniformity both
with the practice of the courts in England and with those across the Empire. The
Privy Council’s
disapproval ran along two lines. First, they specifically
disapproved of the abolition of the “ancient forms of action”.
Second, they did not care for the rules of pleading, as they introduce “a
stricter system of pleading than those prescribed
by the English rules”.
The members of the Committee were at pains to note they were not against
innovation per se, just lack of uniformity. The strong implication was
that the colonies should wait for reform in England, and model their reforms
on
those.[102] Campbell CJ, Parke, B
and Sir Edward Ryan stated that:
[a]ll the courts both at home and abroad in which the Common Law of England
is administered should act upon the same general system
of pleading so that the
Judgments of one Court may be a Guide for another and the Supreme Tribunal of
Appeal give one uniform rule
to
all.[103]
The Committee of
the Privy Council was seemingly unaware (or perhaps did not care) not only that
that ship had long sailed –
procedure having been modified to a greater or
lesser degree by judges across the Empire – but that the Colonial Office
had
long been encouraging diversity and simplification. Yet, despite the more
extensive reforms of the New Zealand Commissioners, the
Colonial Office did not
take the same objection with the new rules of their Supreme
Court.[104]
Conclusion
The history of civil procedure in the Empire has received little attention. Much of the early data, including court rules, is still lost in local archives, while the few cases that might explore how such rules operated still remain to be uncovered. Yet, a reminder is hardly needed that in order to understand the development of civil law generally, and private law in particular, an understanding of procedure is vital. As the nineteenth century wore on, both in England and in the Empire, attention to simplifying civil procedure was certainly one important element in providing cheaper access to justice. But simplifying procedure also resulted in the sweeping away of technicalities, such as the forms of action, a move which in turn furthered the transition from form to substance and the emergence of the modern categories of law.[105]
While an article such as this can point to the innovative beginnings of New Zealand’s civil procedure, it also raises many questions and suggests that there is much additional work to be done. For example, we might ask whether the simplified procedure of New Zealand lead to differences in how the substantive law developed in this jurisdiction (and how could we know)? How much of it survived into the twentieth century? Does New Zealand’s reputation as a jurisdiction with a ‘broad’ approach to fusion derive from these early endeavours, or does modern jurisprudence owe more to the efforts of the Cooke and Richardson Courts of the 1980s and 1990s, or both (or neither)?
If this article raises more questions than it has provided answers what it has hopefully done is shown the importance of looking at developments, not just procedural, but also substantive, in broad context. Many years ago Bruce Kercher reminded legal historians that Australia’s colonial law was never some pale shadow of England’s, and his general point about inheritance, innovation and domestication is undoubtedly just as well illustrated by placing the development of New Zealand’s civil procedure against other reforms around the Empire.[106] The article shows the extent to which colonial judges were interconnected and networked to the sometimes surprising information flows of the Empire, if not precisely the exact routes and trajectories those flows took.
[*] Professor, Faculty of Law, University of Technology Sydney. My thanks to Mark Lunney and the other participants at the Symposium ‘Private Law at the End of Empire: Perspectives from Home and Abroad’ held at the University of New England, Armidale, December 2014. My further thanks to the anonymous peer reviewer whose detailed comments undoubtedly made this a much better work. Any mistakes, remain, of course, entirely mine.
[2] This section has recently been the subject of brief comment by the New Zealand Law Commission in its recent report on the Judicature Act. The Commission concluded that the section should be retained: Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012) at 140.
[3] Law Amendment Act 1882. The 1882 Act was very short and consisted of around 15 largely unconnected small law changes (eg that the Statute of Limitations was inapplicable to express trusts (s 3) or that in proceedings relating damages resulting from the collision of ships the rules of the Court of Vice-Admiralty, not those of the common law, would prevail (s 10)).
[4] An Act to Provide for the Administration of a Uniform System of Law 1876 (Qld); Supreme Court Act 1970 (NSW); Law Reform (Law and Equity) Act 1972 (NSW); Supreme Court Act 1935 (SA); Supreme Court Civil Procedure Act 1932 (Tas); Supreme Court Act 1935 (WA); Judicature Act 1883 (Vic).
[5] Practitioners from both sides were against the reforms, and in fact significant legislation was passed in the decades after 1870, premised on the importance of the continued separate status of equity law: see, for example, the Equity Act 1880 (NSW). Nevertheless, many of the English reforms to procedure were implemented piecemeal prior to 1970.
[7] The rules of which the code was comprised were brought into force by the Supreme Court Procedure Act 1856. The actual rules can be found in Supreme Court of New Zealand, General Rules, Practice and Procedure (The “New Zealander” Office, Auckland, 1856). One of the few extant copies is held by the Library of the Supreme Court of New Zealand. Here the term ‘code’ is used in the sense that the rules purported to be a complete system, ie to cover the field. This is the same sense in which the New York rules were also known as a ‘code’. By contrast, the 1843/4 Rules covered a number of discrete topics, declaring at the end of the rules that in all other matters the procedure would be the same as that of the Superior Courts at Westminster as far as applicable to the constitution of the court and consistent with the laws and circumstances of the colony.
[8] Whitley Stokes, The Anglo-Indian Codes (Clarendon Press, Oxford, 1888), Vol II at 385; Law Commission of India, The Civil Procedure Code 1908, 27th Report (Government of India, New Dehli, 1964) at 1-2.
[9] Interim Report of the Law Procedure Commission [1881] AJHR A06 at 9.
[10] There are of course, some notable exceptions. See, in particular, the work of Patrick Polden “The Courts of Law” in William Cornish, J Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden, and Keith Smith, Oxford History of the Laws of England, Volume 11, 1820-1914 (Oxford University Press, Oxford, 2010), at 525-784. As well as a detailed overview of English reforms in the nineteenth century, Polden notes a number of suggestions from outside England for reform, including the Field Code and the Bengal rules, both discussed below.
[11] The literature is growing rapidly. The classic is Zoe Laidlaw, Colonial Connections 1815-1845: Patronage, the Information Revolution and Colonial Government (Manchester University Press, Manchester, 2005). There is a rich literature addressing movement, through metaphors such as networks, webs, trajectories and ‘travelling laws’. For a selection see Alan Lester, Imperial Networks: Creating Identities in Nineteenth Century South Africa and Britain (London: Routledge, 2001); Tony Ballantyne and Antoinette Burton, Moving Subjects: Gender, Mobility and Intimacy in an Age of Global Empire (Champaign: University of Illinois Press, 2008); Alan Lester and Fae Dussart, ‘Trajectories of Protection: Protectorates of Aborigines in early 19th century Australia and Aotearoa New Zealand’ New Zealand Geographer 64 (2008): 205-220; Travels of Laws: Indian Ocean Itineraries, a special edition of the Law and History Review, especially the introduction by Renisa Mawani and Iza Hussin Law and History Review 33 (2012): 733-747.
[12] When colonial judges referred to the ‘circumstances of the colony’ this phrase had mixed but related meanings. Using this phrase, a judge such as Martin CJ would have meant that his colony was in an early stage of commercial development with a small legal profession, and therefore unsuited to the application of the full rigours of English pleading. Allied to this, however, was the rule that only those laws which were applicable ‘to the circumstances of the colony’ should be considered to have been imported to the new colony. The question of whether a principle or law was applicable to the circumstances of the colony was one for the judges in a relevant case.
[13] Final Report of the Commission to Inquire into Constitution, Practice and Procedure of the Supreme Court and other Courts [1882] AJHR A03. The rules came into force in 1882: 1882 Rules, Second Schedule of Supreme Court Act 1882). It seems the proposed new code did not have the confidence of all members of the Commission. In particular, three Supreme Court judges, including the Chief Justice, added a short addendum to the final report, stating that there were ‘new methods proposed to be introduced, in some of which we are not confident’. Nevertheless, they determined not to block a code which had the backing of the majority of the Commission. One Commissioner, Mr Gilles, clearly thought that the reforms would not improve the current system and lead to cheaper and faster outcomes: 1882 Final Report at 4.
[14] Auckland Star (Auckland, 6 January 1883) at 3.
[15] Commissioners, as reported in the Wanganui Herald (Wanganui, 11 January 1881) at 2.
[16] Interim Report 1881 at 9.
[17] Interim Report 1881 at 9.
[18] Interim Report 1881 at 9.
[20] Interim Report 1881 at 3-4.
[21] Interim Report 1881 at 6.
[22] Interim Report 1881 at 7.
[23] Interim Report 1881 at 10.
[24] This became the Supreme Court of Judicature Act 1881 (UK) 44 & 45 Vict c 17.
[25] Interim Report 1881 at 11.
[26] Interim Report 1881 at 10. The Commissioners did not specify to which version of the Indian Civil Code they referred.
[27] This section of the paper draws on Shaunnagh Dorsett “Equity Reform: New Zealand 1843-1856” (2013) 34 The Journal of Legal History 285. A much more detailed account of the material in this part can be found in that work.
[30] Supreme Court Ordinance 1841 5 Vict 1 (this ordinance was disallowed and replaced by the Supreme Court Ordinance 1844 7 Vict 1).
[31] While New South Wales had one superior court, it separated into two divisions – common law and equity – in 1840. These remain the names for the divisions today.
[32] Ellison v Kirk [1834] NSWSupC 109.
[36] Reports of the Commissioners appointed to inquire and report concluding a system of civil procedure suited to the Supreme Court of New Zealand (Auckland: Williamson and Wilson, 1854). This volume contained two reports, produced in 1852 and 1854 respectively, hereafter First Report 1852 and Second Report 1854: First Report 1852 at 4-5.
[37] Uniformity of Process Act 1832 (UK) 2 Will IV, c 39.
[39] Michael Lobban “Preparing for Fusion: Reforming the Nineteenth Century Court of Chancery, Part II” (2004) 22 Law and History Review 565 at 577.
[40] First Report 1852 at 6.
[42] First Report 1852 at 6.
[44] Earl of Oxford’s Case [1615] EngR 2; (1815) 1 Ch 5, 21 ER 485 (Ch).
[46] First Report 1852 at 1.
[47] First Report 1852 at 3.
[48] In Auckland Grey gave a verbal directions to close the Court on 4 February 1848. This was followed up by a notice on the court door. Daily Southern Cross, 11 March 1843 at 3. With respect to the Southern District a notice was placed in the Government Gazette: see New Zealand Government Gazette (Province of New Munster) 17 February 1848 at 41. The decision to close these courts provoked litigation. For Auckland see Graham v Tye, 16 February 1848, Supreme Court, Auckland, Martin C.J., reported in the Daily Southern Cross, 12 Feb. 1848, at 2; 19 Feb. 1848, at. 3; New Zealander, 19 Feb. 1848, at 3; for Nelson see White v Richmond, 7 April 1848, Supreme Court, Nelson, Chapman J., reported in the Nelson Examiner and New Zealand Chronicle, 15 April 1848, at 31; 18 April 1848, at 23; see Damen Ward, ‘Civil Jurisdiction, Settler Politics and the Colonial Constitution, circa 1840–58’, (2008) 39 Victoria University of Wellington Law Review 497–532. District Courts, with an intermediary monetary jurisdiction between that of the Resident Magistrates Court and the Supreme Court, were created in 1858: District Courts Act 1858 21 & 22 Vict No 30.
[50] H S Chapman to H Chapman, ‘Letters’, Alexander Turnbull Library, qMs-0418, letter dated 4 June 1844, at 103.
[51] The rules were brought into force by the Supreme Court Procedure Act 1856. The actual rules can be found in Supreme Court of New Zealand, General Rules, Practice and Procedure (The “New Zealander” Office, Auckland, 1856). One of the few extant copies is held by the Library of the Supreme Court of New Zealand in Wellington.
[54] What separates the Field Code from other reforms is that part of the Commissioner’s task which concerned abolishing the distinction between equitable and common law remedies. This kind of ‘substantive fusion’ did not, of course, take place in England or its (former) colonies, including New Zealand.
[55] Martin, 1843 Report.
[56] See the various references throughout the First Report and Letter Martin to Chapman, 31 March 1851, ATL, MS Papers 1743, loose collection unpaginated. There were a number of relevant reports by the Common Law Commissioner: see Royal Commission on the Common Law, First Report, GBPP 1829 ix (46). The second, 1852-3; Royal Commission on the Common Law, Second Report, GBPP, 1830 xi 1830 (123); Royal Commission on the Common Law, Third Report, GBPP, x 1831 (92). There was also another round in the early 1850s: Royal Commission on the Common Law Courts, First Report, GBPP, xxii 1851 (1389). Several later reports were likely too late to have been consulted by the New Zealand Commissioners by 1852.
[57] 1848 Report (NY) at 74.
[58] 1848 Report (NY) at 145.
[59] 1848 Report (NY) at 75.
[60] 1848 Report (NY) at 141.
[61] Second Report 1854 at 107.
[62] Second Report 1854 at 94. On Field in England see Polden “The Courts of Law”, at 589.
[63] 1848 Report (NY) at 91, 143.
[64] First Report 1852 at 22-23. Forms of Process in the Courts of Law in Scotland 1825 (UK) 6 Geo. IV c. 120.
[65] This simple procedure could be used by creditors, legatees of deceased persons, administrators seeking court protection, mortgagees, trusts and partnerships. For the full text of this reform see [anonymous] (1850) 40 The Legal Observer, Digest and Journal of Jurisprudence 1.
[66] [anonymous] The Legal Observer. See also Lobban “Preparing for Fusion ... Part II” at 579.
[67] Second Report 1854 at 78.
[68] And see Second Report 1854 at 93.
[69] Forms of Process in the Courts of Law in Scotland 1825 6 Geo IV, c.120.
[70] David Parratt “Tales of the Unexpected: Procedural Rule Changes and Their (Unintended) Consequences” (2008) 12.1 Electronic Journal of Comparative Law <www.ejcl.org/121/art121-17.pdf>.
[71] Parratt “Tales of the Unexpected”.
[73] F.W. Maitland, The Forms of Action at Common Law (Cambridge University Press, Cambridge, 1965) at 2-3. Maitland lists nine ways in which the various forms of action differed from each other.
[74] The assault on the forms of action was commenced in 1832 by the Uniformity of Process Act 2 Wm IV, c 39, which abolished the old original writs and provided a new form of writ by which all personal actions could be commenced. However, it was still necessary to insert into this writ a reference to one of the known forms of action. In addition, in 1833 the real and mixed actions were abolished: Real Property Limitation Act, 1833, 3 and 4 Will. IV, c. 27. The majority of the writs spared were subsequently abolished by s. 26 of the Common Law Procedure Act 1860, 23 and 24 Vic., c. 126. The majority of these writs had already been rendered obsolete, theoretically possible, but never used.
[75] 1848 Report (NY) at 138.
[76] 1848 Report (NY) at 81.
[77] 1848 Report (NY) at 87.
[78] Second Report 1854 at 74.
[79] Second Report 1854 at 74.
[80] Second Report 1854 at 78.
[81] Second Report 1854 at 75.
[82] Second Report 1854 at 75.
[83] Second Report 1854 at 74.
[84] Second Report 1854 at 75.
[85] Second Report 1854 at 76-77.
[86] Second Report 1854 at 80.
[87] Second Report 1854 at 80.
[88] Letter Martin to Chapman, 31 March 1851, ATL, MS Papers 1743, loose collection unpaginated.
[90] Replication de injuria sua propria absque tali causa: that the defendant did the act of his own wrong. The replication de injuria was made by a plaintiff in order to deny that an excuse pleaded by the defendant made any difference to the breach alleged in the declaration.
[91] Auckland Civil Minute Book, 1844-1856, ANZ, BBAE 5635 1a. What this book incidentally also shows is how many cases were settled at the point of making up the issue before the judge or which the defendant chose not to defend.
[92] [Anonymous] “Special Pleading Reform” (1850) 12 The Law Review and Quarterly Journal of British and Foreign Jurisprudence 27. The article also appeared in (1850) 2 U.S. Monthly L. Mag. 197. The rules were reproduced in the Law Review.
[93] For Chapman’s credentials as a ‘philosophical radical’, his connection to Bentham and his attendance at Austin’s lectures see Shaunnagh Dorsett “Sovereignty as Governance in the Early New Zealand Crown Colony Period” in Shaunnagh Dorsett and Ian Hunter (eds) Law and Politics in British Colonial Thought: Transpositions of Empire (Palgrave McMillan, New York, 2010).
[96] On these see [anonymous] (1849-1850) 11 Law Review and Quarterly Journal of British and Foreign Jurisprudence 48.
[97] Law Review, 48.
[98] See The Rules and Orders of the Supreme Court of Judicature at Fort William, Bengal (Samuel Smith & Co, Calcutta, 1850), available at BL, East India Company Collection, IOR/V/27/141/6. This copy has those parts of the rules which were disallowed struck out.
[99] Memo, Committee of the Privy Council, 30 January 1850, TNA, PC2/233, 220.
[100] See Memo, Committee of the Privy Council, 22 May 1850, TNA, PC2/233 at 383; Despatches India and Bengal [nd] 1851, BL, East India Company Collection, IOR/E/4/808. The rules as redrafted by the Privy Council were allowed: Memo, Committee of the Privy Council, 19 June 1850, TNA, PC2/233, 506. The equity rules of the previous year had also been allowed: see Memo, Committee of the Privy Council, 1 January 1850, TNA 2/233 at 1; Despatches India and Bengal, 1851, BL, East India Company Collection, IOR/E/4/812 (Calcutta) and IOR/E/4/813 (Bombay).
[101] Memo, Committee of the Privy Council, 30 January 1850, TNA, PC2/233 at 220.
[102] Memo, Committee of the Privy Council, 30 January 1850, TNA, PC2/233 at 385.
[103] Memo, Committee of the Privy Council, 22 May 1850, TNA, PC2/233 at 384.
[104] There is no record in the New Zealand Despatches of the transmission of the rules to London (for the relevant period see TNA CO209/137; CO209/136; CO209/135; CO209/139; CO209/140; CO 209/141; CO209/142). Nor does any report appear in the index of the the Law Officer’s Opinions 1837-1959, although the rules of a number of other colonies do receive comment (TNA, CO323/91B). As they remained in force until 1881 they were clearly not disallowed.
[105] On this see David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, Oxford, 1999).
[106] Bruce Kercher An Unruly Child: A History of Law in Australia (Allen & Unwin, Crow’s Nest, 1995).
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