308
THE NEW ZEALAND GAZETTE.

can be held, I have thought it better at once to com-
municate to you the opinion of the Law Officers.
I have, &c.,
KIMBERLEY.

Governor Sir G. F. Bowen, G.C.M.G.

The Registrar of the Privy Council to Henry T.
Holland, Esq.

10th March, 1871.

SIR, -I am directed by the Lord President of the
Council to return the enclosure in your letter of the
16th February last, relating to the constitution of
the Courts in New Zealand, and the prosecution of
Appeals to Her Majesty from that Colony, with the
following remarks: -

The Lords of the Judicial Committee concur in
the opinion of the Law Officers.

Their Lordships think that there should be no
appeal to Her Majesty in Council as of right until
the party has exhausted all the means of appeal
which the law gives him in the Colony, and that the
appeal to England should be from the final judgment
there.

The Court of Appeal of New Zealand, as consti-
tuted by the Colonial Act of 1862, seems to consist
of two or more Judges of the Supreme Court sitting
together.

The Act embraces four classes of cases-

1. Cases which before final judgment are removed
   into the Court of Appeal under sections 18, 19, and
   20, wherein final judgment, as regards the tribunals
   of the Colony, is passed under section 21.

2. Cases which, after leave to appeal has been
   granted either by the Supreme Court under section
   24, or by the Court of Appeal under section 25, have
   been determined on appeal.

3. Special cases on which the decision of the
   Appeal Court has been taken under section 33.

4. Cases in which leave to appeal has been refused
   both by the Supreme Court under section 24 and by
   the Appellate Court under section 25.

In all these cases the appeal to the Queen in
Council should be of right, as their Lordships con-
ceive it to have been of right from final decrees of
the Supreme Court, subject to the usual limitations
as to time, appealable value, and security; and the
appeal should be admitted and the record sent to
England in the usual manner from the Colony by the
Court of Appeal.

The right of suitors in New Zealand to petition
Her Majesty for special leave to appeal would be
granted on the Report of the Lords of the Judicial
Committee, but in cases of the fourth class the
Petitioner would have to satisfy their Lordships not
only that there are primâ facie grounds of appeal,
but that the Colonial Courts were wrong in refusing
to admit it.

Their Lordships observe that the legislation of
New Zealand with regard to the constitution of its
Courts of Justice, and to the right of appeal to Her
Majesty, appears to be peculiar.

The Supreme Court was constituted in 1844 by a
Colonial Ordinance, in which no mention is made of
any right of appeal to Her Majesty in Council.

A second Ordinance was passed in 1846 which
constituted the Governor and Executive Council as
a Court of Appeal, and provided (section 8) for an
appeal to the Queen in Council in cases exceeding
£500 in value in the usual terms.

This Act was in force at the time when Her
Majesty's Order in Council of the 10th May, 1860,
was passed, and that Order was strictly applicable
to the then existing state of things, having regard to
the provisions of the 7 and 8 Vict. cap. 69.

But the New Zealand Act, entitled "The Supreme
Court Act of 1860," and passed 27th October of that
year, repealed the New Zealand Acts of 1844 and
1846, by which the Supreme Court of New Zealand
had been created, and this last dated Act (1860)
contains no provisions whatever with reference to
the right of appeal to Her Majesty.

The subsequent Act of 1862, entitled "Court of
Appeal Act, 1862," establishes a modification of
the Supreme Court in the Colony, under the style
and title of a Court of Appeal; but it is equally
silent as to the right of appeal to Her Majesty in
Council, and no provision is made by the Colonial
legislation for the prosecution of appeals to England.

The Supreme Court has however continued to
admit appeals under the Order in Council of
1860. From the Court of Appeal in New Zealand
no appeal has yet been brought or asserted to
England.

It will probably be held by the Law Officers of
the Crown that the undoubted right and prerogative
of Her Majesty, to hear and determine appeals in
the last resort from all the Courts of her Colonial
Empire, could not be taken away or impaired by the
mere silence of a Colonial enactment, and it may be
assumed that the framers of the Colonial Act of
1862 did not intend to abolish or restrict the right
of appeal, which had been fully recognized in the
Colonial Act of 1846.

But it appears to their Lordships that it would be
desirable to remove all doubt upon the subject by
express legislation; that is, either by a further
Colonial enactment restoring the provisions of 1846
on the subject of appeals to England (sections 8, 9,
10, 11, 12, 13, and 14 of that Act), or by an Order
in Council adapted to the existing circumstances of
the Colony.

Their Lordships are of opinion that it should be
referred to the Law Officers of the Crown to advise
which of these two courses is to be preferred; and
that, in the event of their recommending that an
Order in Council should be passed, they should be
instructed to prepare the draft of that Order, having
regard to the Acts now in force in New Zealand,
and to the peculiar jurisdiction of the Court of
Appeal there.

I have, &c.,
HENRY REEVE,
Reg. P.C.

[CIRCULAR.]
Downing Street, 4th April, 1871.

SIR, -I transmit to you for your information, and for
the guidance of all whom it may concern, two copies
of an Order in Council for the regulation of the form
and type to be used in the printing of the Cases,
Records, and Proceedings in Appeals and other
matters pending before the Lords of the Judicial
Committee of the Privy Council.

I have to instruct you to give publicity to this
Order in Council throughout the Colony under your
Government.

I have, &c.,
KIMBERLEY.

The Officer Administering
the Government of New Zealand.

ORDER IN COUNCIL
For the Regulation of the Form and Type to be used in
the Printing of the Cases, Records, and Proceed-
ings in Appeals and other matters pending before
the Lords of the Judicial Committee of the Privy
Council.

AT THE COURT AT WINDSOR CASTLE, THE TWENTY-
FOURTH DAY OF MARCH, 1871.

Present:
THE QUEEN'S MOST EXCELLENT MAJESTY IN COUNCIL.

WHEREAS there was this day read at the Board a