Procedural Innovation: The First Supreme Court Rules of New South Wales and New Zealand

Abstract

This article looks at the first rules of the Supreme Courts of New South Wales and New Zealand. In both colonies the first Chief Justice put in place simplified rules, appropriate, as they saw it, for the needs of a young colony in which there was a single superior court. This paper places these rules within the context of Empire and then examines two facets of the rules: initiating civil litigation and the relationship between law and equity in a single superior court. For colonial judges, the ability to draft their own rules was one of the most significant ways in which they could adapt English law to the circumstances of their own colonies and influence the development of the shape, form and development of their respective legal systems. Many of their reforms were undertaken ahead of those in England and could have provided both inspiration for, and evidence of success of, simplifications that could easily be achieved. In New South Wales pleadings were significantly simplified, while in New Zealand they were entirely abolished, substituted by a system of pre-trial examination. Further, while New South Wales maintained a strict distinction between law and equity (even when administered by a single court), New Zealand's first rules ushered in what might be considered some elements of 'fusion' of common law and equity, in advance of both the Field Code and the Judicature Acts.

Keywords: court rules, colony, new south wales, new zealand, equity, pleading, fusion