'Show ponies' will gut judiciary says National justice spokesman

By HELEN TUNNAH

Gutting the Court of Appeal of its most senior legal brains to staff the new Supreme Court will turn those judges from workhorses into "show ponies", warns National Party justice spokesman Richard Worth.

He said elevating five of the Appeal Court's seven permanent judges to the new court would leave a dearth of experience on the lower bench.

However, Attorney-General Margaret Wilson said she had no concerns a new-look Court of Appeal bench, which would still hear 10 times as many cases as the Supreme Court, would lack talent.

She said through a spokeswoman there were 36 High Court judges who could be moved up to the Court of Appeal, and she had confidence in them.

The Supreme Court will comprise Chief Justice Dame Sian Elias and up to five other judges when it takes over as New Zealand's final appellate court from the Privy Council next July.

Those other five judges will almost certainly come from the Court of Appeal, leaving it with just two judges. The new law also allows for one fewer judge on that court.

Prime Minister Helen Clark told Parliament this week the Supreme Court would be staffed by the most senior judges in New Zealand "with no consideration whatsoever to politics, and everything to do with distinction and merit".

The five senior Court of Appeal judges are President Justice Thomas Gault, Justice Sir Kenneth Keith, Justice Peter Blanchard, Justice Andrew Tipping and Justice John McGrath. They are generally considered cautious jurists and all but Justice McGrath are members of the London-based Privy Council.

The other two Appeal Court judges are Justice Noel Anderson and Justice Susan Glazebrook, and they could be expected to be the first called up if any of the other judges cannot, or choose not to take up a post on the Supreme Court bench.

Because there is no automatic right of appeal to the Supreme Court, it is expected to hear about 40 cases a year. That compares with the high workload of the Court of Appeal which heard almost 600 appeals in 2001 and is expected to remain New Zealand's main final appeal court.

Mr Worth told the Weekend Herald the judicial pool in New Zealand was small and he had concerns about hard-working, competent Court of Appeal judges being used so little once they were on the Supreme Court.

"Those Court of Appeal judges who are advanced to the new court will move from being workhorses to show ponies."

Act MP Stephen Franks said part of the Government's pitch for a new court was the fact the Court of Appeal was overworked.

He said having to promote most of the Appeal Court judges to the Supreme Court would leave it "denuded", yet that was where people had been told the extra horsepower was needed because of the hefty workload.

Whether all the top Court of Appeal judges want to be appointed to the new court remains to be seen.

Solicitor-General Terence Arnold has already warned the controversy had done "considerable" harm to the standing of the judiciary.

Mr Arnold, Dame Sian and former Governor-General Sir Paul Reeves will recommend to Ms Wilson who should be appointed to the court.

Salaries for the new Supreme Court judges are expected to be confirmed before the end of the year. Appeal Court judges are paid $283,500 a year, while the Chief Justice receives $317,400.

LIKELY NEW SUPREME COURT BENCH

* Chief Justice Dame Sian Elias, 54

Appointed the head of the New Zealand Judiciary in 1999 from the High Court where she had been a judge for four years. Act MP Stephen Franks accused her of possible bias this year, saying her past in Treaty of Waitangi litigation meant she should have stepped aside from the seabed and foreshore case.

* Court of Appeal President Justice Thomas Gault, 64

A former Wellington barrister, he is said to be of conservative leaning. Considered to have a bright legal mind, he is well versed in Maori issues and intellectual property law. Appointed to the court in 1991.

* Rt Hon Justice Sir Kenneth Keith, 65

A constitutional and international law expert, he was part of the New Zealand team which three times challenged French nuclear testing in the Pacific at the International Court of Justice, the main judicial arm of the United Nations. He is now a candidate for the court.

Appointed to the Court of Appeal in 1996.

* Rt Hon Justice Peter Blanchard, 61

A former partner in Auckland law firm Simpson Grierson, he was appointed to the High Court in 1991 and Appeal Court in 1996. Said to be well-schooled in commercial and land law.

* Rt Hon Justice Andrew Tipping, 61

A Canterbury lawyer, and former High Court judge for 11 years, he joined the Court of Appeal in 1997 and is known as an intellectual and practical judge.

* Hon Justice John McGrath, 58.

A former partner in the Wellington firm Buddle Findlay, and later a barrister. He was Solicitor-General from 1989-2000 and is familiar with public law. Appointed to the Court of Appeal in July 2000.

The next two cabs off the rank

* Hon Justice Noel Anderson, 59, an Auckland barrister who has been on the Court of Appeal for two years.

* Hon Justice Susan Glazebrook, 47, an Auckland tax expert who joined the Court of Appeal last year.