The creation, flourishing, evolutionary decline and strange death of the District Court of New Zealand 1858-1909
| Author | Jeremy Finn |
| Position | MA(Hons), LLB(Hons), PhD, Professor Emeritus, University of Canterbury |
| Pages | 95-116 |
95
THE CR EATION, FLOURISHING, EVOLUTIONA RY
DECLINE A ND STRANGE DEATH OF THE DISTRICT
COURT OF NEW ZE ALAND 1858–1909
J F*
A
is article investigates the history of the District Court in New Zealand
between its creation in 1858 and its closure in 1909, a history that has hitherto
been largely neglected by historians. It argues that the creation of the District
Court was largely a response to the problems of providing an adequate but cheap
court structure for the widespread colonist settlements away from the major cities.
It later acquired both a most important bankruptcy jur isdiction and a supervisory
jurisdiction over the goldelds’ courts, features which prolonged its existence
despite the increased jurisdiction of the dierent Magistrates’ Courts. e history
of the Court, and its judges, is reected in accounts of cases heard by the courts
and by an analysis of the shift from part-time judges who continued to practice
as barristers to judges who also served as Resident Magistrates, many of the latter
being very inexperienced a s lawyers. e article concludes with an examination of
the relative volumes of litigation in the Magistrates’ and the District Cou rt which
shows that litigants increasingly preferred to take their disputes to the former
court. e District Court was then closed on the grounds of economy, ironically
reecting the main reason for its creation.
I. I
Little has been written on the history of the District Courts created by
the District Courts Act 1858. is is in part because primary material is
dispersed through newspapers and, more rarely, government archives, and
in part because historians of the period have generally concentrated on
the longer-lived, and more heavily utilised, Supreme Court and Resident
Magistrates’ Court.1 is is unfortunate, as there is much to be learned about
the way New Zealand governments and legislators sought to balance access
to courts with suitable ranges of jurisdiction with minimising the costs of
the court system. As will be seen, there was no settled policy and changes in
court jurisdictions were often reactions to cha nges in social and economic
1 A few District C ourt cases we re reported in the New Z ealand Juris t in the mid-1870s.
Unfortunately, litt le relevant material h as, as yet, been col lected in the NZ Lost C ases project,
available at .
* MA(Hons), LLB(Hon s), PhD, Professor Emeritu s, University of Canterbury.
96 Canterbury Law Re view [Vol 25, 2019]
conditions which led to de facto competition between courts rather than the
creation and operation of a well-organised curial structure.
Even the genesis of the District Court is a little obscure, a s neither the
volumes of Hansard for 1858 nor contemporary newspapers reported the
substance of the debate upon the founding statute. One newspaper did refer
to the Act as being a little more than a n elaboration of the District Courts
Bill 1856 ,2 a measure which passed the House of Representatives but was
thrown out in the Legislative Council.3 is is true in relation to much of
the substantive procedural and jurisdictional elements of the Act, but it fails
to recognise some very signicant dierences. A key feature is that, in the
1856 Bill, District Courts would be set up only in those of the six4 provinces
of New Zealand which specically requested the establishment of a District
Court, and the costs of the Court would fall on the provincial government
(though these would be oset by nes and fees imposed by the Cour t).
is perhaps reects the very strong provincialist tendencies of many of the
colonists of the time, something attributable to the poor state of transport
and communication between the dierent areas of European settlement and
to the dierent organisations which had promoted particu lar settlements.
e debates on the 1856 Bill are only partially reported but a newspaper
account of the second reading of the Bill in the House of Representatives gives
what appears to be a verbatim report of a speech by Charles Dudley Robert
Ward, a barrister and a Wellington Member of the House of Representatives,
moving that second reading.5 ere is an interesting historical resonance
here, as Ward was to become by far the longest serving district judge of the
Court established in 1858. Ward was quick to point out that, although he had
assembled the Bill, most of his work had been “the compiling and adapting
the suggestions of more experienced men”. e key issue was how to deal
satisfactorily with cases involving substantial monetary sums and mid-level
criminal oending in t hose settlements which did not have resident Supreme
2 “e Admini stration of Justice” Wellington Independent (New Zeal and, 18 September 1858)
at 2.
3 e Legi slative Council m ajority ignored a plea th at the Bill was of pa rticula r interest to
members from the Ca nterbury and Otag o regions “where sessions of the Supreme C ourt were
rare, and where t here were great arrears of cau ses to be settled”. e words quoted are by Dr
Richard son [1856] NZPD 309 (28 July 1856).
4 Under t he Constitution Act 1852, a large range of gove rnment functions were conferred on
the six province s, Auckland, Welling ton, New Plymouth/Taranak i, Nelson, Canterbury and
Otago. Each prov ince had its own Provi ncial Council w ith limited legi slative powers and
an elected exe cutive head, the Super intendent. However provincia l use of its powers could
be overridden by the cent ral government or legislatur e. For a thorough, if dated, coverag e of
the period see W P Morrel l e Provincial System in New Zea land 1852–1876 (2nd ed 1964,
Christchurc h, Whitcombe & Tombs).
5 “General As sembly” Lyttelton Times (New Zeal and, 26 July 1856) at 2.
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