Lost Cases Project reveals our rich colonial legal heritage


PROJECT TEAM: SHAUNNAGH DORSETT, RICHARD BOAST, GEOFF McLAY and DAMEN WARD, LAW FACULTY, VICTORIA UNIVERSITY OF WELLINGTON

Back in New Zealand’s early colonial days, court proceedings were not formally recorded by court staff – instead, case notes were made by judges or journalists, sometimes fully, sometimes sketchily.

Those old jottings contain a treasure-trove of material on our legal and social history that remains valuable and relevant today.

A team of Victoria University researchers has transcribed and collated many early, important New Zealand cases. The Lost Cases Project, supported by the Law Foundation, has now recorded all Supreme Court and Court of Appeal cases from 1842 to 1869.

The individual case records can all be viewed on a searchable database. A separate searchable source database covers court records between 1840 and 1883.

“Without understanding our legal past, you can’t understand the legal foundation of New Zealand as a nation,” says research team member Dr Shaunnagh Dorsett. “The cases have extraordinary value to our cultural and legal heritage, and ought not to be forgotten.”

Compiling the record, mainly from judges’ notebooks, the research team found a surprisingly large and sophisticated body of cases.

“Litigation exploded in the 1860s, especially civil litigation. A significant amount covered complex legal issues that would have been difficult for an English judiciary, let alone a small colony.”

Dr Dorsett, now Associate Law Professor at Sydney University of Technology, says the broader project unearthed a diverse range of cases, reflecting widespread usage of the courts: “There was significant resort to the courts as a mechanism of resolving disputes. People would litigate at the drop of a hat.”

Cases ranged from sheep stealing and unpaid bills for cattle purchases through to courtship and marriage and the application of British law to Maori.

“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,” she says. “Through these cases you can find out much about how society functions.”

The project also included a study of the Native Land Court. Reports on the most important of these cases are being compiled into a book, to be issued soon, by research team member and Victoria Law Professor Richard Boast.

“The Native Land Court was one of our most important nineteenth century courts,” he says. “No properly edited collection of its judgements exists. This is adding to the stock of New Zealand’s reported case law, and some of these cases are really important.”

The court’s decisions on land title were avidly followed and reported on at the time, because the decisions had critical implications: “no-one could buy land from Maori unless Maori had a title from the Native Land Court.”

Most of the Court’s judgments are written in longhand in the Court’s own minute books, although some were reported in the newspapers, for example the Court’s sittings in Cambridge from around 1879-1886.

The cases covered huge and valuable blocks of land. One case heard in 1886 covered 1.6 million acres of the King Country, almost the entire region. Other cases related to the whole of the Chatham Islands (1870) and the volcanic peaks of the National Park area (1886-7)

Professor Boast says the book, covering about 120 major cases from 1862 to 1894, would be of particular interest to the Maori Land Court and Waitangi Tribunal research historians, as well as having broader appeal to lawyers, historians and Maori people.

“Once these cases are readily available they will be drawn on today,” he says. “I hope the collection will be of great interest to lawyers, historians and Maori people.”

Full details of materials – court records (source) and case databases – can be found and searched at the project’s website and database: www.victoria.ac.nz/law/nzlostcases

The Law Foundation provided $235,780 to fund this research and establish the Lost Cases Database.

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