March 2013 Māori Law Review

New Zealand’s “Lost Cases” – Unreported Colonial Case Law on the Internet

Damen Ward provides an update on the database created as a result of the Lost Cases project coordinated by Victoria University of Wellington.

Overview

The New Zealand Lost Cases database has recently been added to the New Zealand Legal Information Institute website (http://www.nzlii.org/nz/cases/NZLostC/).  The database contains details of all New Zealand Supreme Court and Court of Appeal cases from 1842 to 1869, a period when there were no official law reports.

Discussion

Social and economic insights beyond the litigation

In the period before official law reports, case notes were made by court staff, judges, or journalists watching the cases.  Colonial newspapers often reported litigation in great detail, publishing full transcripts of evidence, detailed descriptions of witnesses’ demeanour, and observations on the judge and jury.  Because of this, the database offers insights to social and economic life in the colony beyond the particular litigation.  As the project leader Professor Shaunnagh Dorsett has noted “It isn’t just about law – you can see from these cases how society looked and operated.  It’s about commerce, family, life and death, all those things.  Through these cases you can find much out about how society functioned.”

The Lost Cases work has highlighted a depth to colonial legal practice and culture.  Professor Dorsett observes, “litigation exploded in the 1860s, especially civil litigation.  A significant portion of those cases covered complex issues that would have been difficult for an English judiciary, let alone the bench in a small colony.  It’s clear people would litigate at the drop of a hat, and the public awareness of, and dispute over, complex legal issues seems to have been very high.  That has some important implication for how we view colonial societies.  Legal historians need to pay more attention to what these cases might tell us about our ancestors, and ourselves.”

Database searches

The NZLII website allows more effective keyword searching than has been possible in the past.  A separate searchable source database covers Court records between 1840 and 1883.  The database joins a growing volume of historical case law which is available on the internet.  The New Zealand cases will form part of a collection of historical case law being compiled by Austlii with support from the Australian Research Council.  Historical cases from New South Wales, South Australia and other Australian jurisdictions are already available through http://www.austlii.edu.au/au/special/legalhistory/.

Scholarship flowing from use of the Lost Cases database

The Lost Cases project has led to a number of important academic publications, including studies on:

  • the customary law of the colonial New Zealand whaling industry. 1
  • colonial litigation on promises to marry. 2
  • colonial law on married women’s and widows’ property rights. 3
  • the colonial courts’ approach to native title and the statutory regulation of disputed titles; 4 and
  • the impact of civil procedure rules on legal disputes in the Crown Colony period. 5

Academics at Victoria University of Wellington and elsewhere are just beginning to test the depths of the database’s treasures.  Among some of the interesting cases relating to Māori that project members hope will receive attention in the future are:

  • R v Aparo (1863); Aparo was convicted for his role in the seizure of the Moke Moke Pihoihoi newspaper’s printing press at Te Awamutu.  The taking of the press was an important moment in the “Paper War” between the government and the Kingitanga in the Waikato.  It precipitated the removal of Resident Magistrate John Gorst from the district. 6 The evidence given at trial (and set out in the database entry) includes discussion about the political situation in the Waikato, Gorst’s relationship with local iwi and hapū, and notions of communal and individual responsibility for actions.
  • Scott v Grimstone (1848); one of a series of cases about disputed land titles in Wellington.  The court heard evidence from William E Tako (Wi Tako) about early land sales.
  • R v Caroline (1844); Caroline appears to have been the first Māori woman brought before the Supreme Court in a criminal matter.  Caroline was charged with receiving stolen goods.  The case failed to get past the grand jury stage: the Crown abandoned the case after the Martin CJ questioned the adequacy of the evidence presented at the hearing.  Newspaper reports also included criticism of the standard of translation services in the court.

Victoria University of Wellington Law Review is interested in publishing articles or case notes discussing cases in the database.  Please contact the editor, Nessa Lynch, at law-review@vuw.ac.nz.  The Lost Cases database will also remain available on the VUW website.

Notes:

  1. Stuart Anderson, “Commercial Law on the Beach: Shore Whaling Litigation in Early Colonial New Zealand: Macfarlane v Crummer (1845)” (2010) 41 VUWLR 453. Stuart Anderson, “Harris v Fitzherbert: Customary Rights of Labour on a Shore Whaling Station” (2011) 42 VUWLR 639.
  2. Megan Simpson, “The Action for Breach of Promise of Marriage in Early Colonial New Zealand: Fitzgerald v Clifford (1845)” 41 VUWLR 473.
  3. Charlotte Macdonald, “Land, Death and Dower in the Settler Empire: the Lost Cause of “The Widow’s Third” in Nineteenth-Century New Zealand” 41 VUWLR 493.
  4. Bruce Kercher, “Informal Land Titles: Snowden v Baker (1844)” 41 VUWLR 605. Ned Fletcher and Sian Elias, “A Collusive Suit to “Confound the Rights of Property Through the Length and Breadth of the Colony”?: Busby v White (1859) 41 VUWLR 563.
  5. Shaunnagh Dorsett, “Making up the issue: The Judges’ Role in Formulating Actions in the Crown Colony Period: Pharazyn v Smith (1844)” 41 VUWLR 427.
  6. Evelyn Stokes, Wiremu Tamihana: Rangatira, Wellington, 2002, 324-335. Damon Ieremia Salesa, Racial Crossings: Race, Intermarriage, and the Victorian British Empire, Oxford, 2011, 216-217.
avatar

Author: Damen Ward

Dr Damen Ward is a Crown Counsel at Crown Law. Damen's doctorate, from Oxford University, was on British colonial policy on indigenous rights. Damen has worked on a number of High Court and appellate court cases relating to Maori issues. He has experience in a range of Waitangi Tribunal inquiries, foreshore and seabed issues, and on legal claims to rivers and riverbeds. He is a member of the “Lost Cases” project team.