Project Info - Methodology

Reference Group | Research Team | Methodology

The New Zealand’s Lost Cases Project began as a two stage project that aimed to identify and record all Supreme Court and Court of Appeal cases between 1841-1883 (the beginning of official law reporting in New Zealand). This period was later shortened to 1869. It aimed to identify all archives and publications that are related to these cases and broader judicial matters in colonial New Zealand.

Both of these outcomes are available in database form on the project’s website. Stage One of the project was completed in November 2008, the major output of this stage was the creation of a source database. Stage Two, completed in November 2010, resulted in the listing of all Supreme Court and Court of Appeal cases for the period 1842-1869.

Due to the unexpected increase in the number of cases being heard by the Supreme Court during the 1860s, the project team was unable to complete the full time period proposed. Of the approximately 4400 cases in the database, over 3000 of these took place in the 1860s. Judging from the recovered newspaper reports and judges’ notebooks, there will also be a substantial increase in case numbers during the 1870s and 1880s. The Supreme Court became increasingly busy as the colony grew.

The following outlines the methodology adopted by the project team in the construction and maintenance of the source and case databases.

Source Database

The archives, manuscripts and publications included in the source databases were chosen because:

1. The record is either related to a specific Supreme Court or Court of Appeal case or the records relates to the judiciary more generally;

2. The record was created in the period between 1841 and 1883;

3. Some records relating to other courts such as the Wardens Court and Resident Magistrate’s Court have been included in the database because there are instances where the Supreme Court was involved in resolving matters of jurisdiction for other courts;

4. The original catalogue where the record was listed has incomplete information and while the record may not be related to the scope of this project, an updated description in the source database enables researchers to get a better idea of what is included in the file;

5. The repository where the source is held does not have a publicly accessible catalogue, all records accessed at these repositories have been included in the database to ensure that the research team has a complete record of the sources that have been accessed.

There are nine categories of record in the source database:

• Court Documents

• Court Minute Books

• Court Register

• Judges’ Notebook

• Law firm Records

• Newspaper

• Official Correspondence

• Private Records

• Reported Cases

• Other

Very few of the source records actually identify individual cases. They are more likely to indicate that they cover a particular court for a particular time period and it is up to the reader to use the case database to identify cases and then use the source database to see if there is any archival material covering a similar region and time period.

The exception to this is the series of judges’ notebooks. All Supreme Court notebooks that have been located for the period 1842-1883 have been indexed. However, not all judges have surviving notebooks. The following table identifies the judges’ notebooks that we have been able to locate:

All indexes are located in the source database. If a case from the 1860s has existing judges’ notes, a reference is included in the individual case record.

As the project was unable to list all cases for the period 1870-83 in our allocated time, the team instead focussed their efforts on indexing all judges’ notebooks for this period. If a user is interested in locating material on a case from this period, it is suggested that they use the judges’ notebooks instead. The National Library’s Paperspast website is also good place to start looking for material.

While Lost Cases attempted to identify all records related to the scope of the project, there are several factors that have had implications on the number of archives we have been able to identify:

• Some repositories do not have catalogues; this meant relying purely on local archivists to select material that may be relevant;

• Some repositories have items from their collection that are absent from their catalogue, this has made it difficult to ascertain whether sources have been missed or not;

• The limited timeframe of Stage One meant that registers and microfilmed material at Archives NZ was not comprehensively reviewed. For some cases identified in Stage Two, these sources were accessed and then included in the source database;

• Many archives have been destroyed or are missing, this has impacted on the certainty of whether a source exists or not.

Case Database

The project aimed to list all cases heard in the Supreme Court or Court of Appeal between 1841-1883. As noted, the team has completed the period 1841-1869. The approach was to commence chronologically by decade, entering cases by region.

Types of cases listed in the database:

• Supreme Court – Criminal, Civil and Public Cases, 1842-1869 (plus some cases from the 1870s and 1880s)

• Supreme Court – Divorce and Lunacy Cases

• Court of Appeal cases, 1863-1869

• Appeals from the Resident Magistrate’s Court, District Court and Warden’s Court, 1858-1869

• Vice Admiralty Court cases, 1842-1869

Cases that were excluded from the case database included: bankruptcy, chambers applications, probate. This decision was based on the challenges posed by the existing archival material (discussed in further detail later in the document).

The process for locating cases was to first start with the provincial newspapers, using the major newspaper from each court location to trace the cases for each court sitting. The list of cases was then matched with the archival material (if available). Newspaper reports provided the most consistent record of the court’s sitting but this approach was not foolproof. Firstly it relied on whether the court actually reported the court’s activity in full and secondly, the National Library does not hold all issues for the newspapers we were using, meaning that it is likely that we have missed cases because we do not have either a newspaper report or archival source listing the case.

Different types of cases received different treatment by the provincial newspapers, including:

• Criminal Cases - Because of the interest that criminal matters generated, newspapers tended to always report the court’s criminal session. Therefore it is unlikely that we have missed many of these cases.

• Civil Cases – Major civil cases tended to be recorded in great detail in the newspapers. Other civil matters such as divorce and lunacy were also well reported and have both been listed when reported. Cases that were heard in Chambers were more difficult to locate. Many of these cases were sparsely reported and consequently we have few Chambers cases in our database. The reality is that there were far more civil cases heard in this period than are listed in the database. The best place to locate Chambers cases is in the surviving Supreme Court minute books, which are located in the source database. These minute books list dozens of small cases that were heard in chambers, often with very scant information.

• Bankruptcy – Early on in Stage Two it became apparent that bankruptcy cases were high in number and complicated to trace through the newspapers. It was decided that the project would exclude these cases from the case listings. As this decision was made after case entering had already commenced, there are some bankruptcy cases from Invercargill and Napier in the database.

• Probate – As with the cases heard in Chambers, very few probates were fully reported in newspapers. Consequently we have few probates in our database. We recommend using the court minute books or judges’ notebooks if you are looking for a record of probate.

Other details to keep in mind when using the cases database are:

• Supreme Court criminal cases were generally only listed if the Grand Jury gave a true bill. Therefore if a researcher was to look at a return of prisoners tried form (sparsely available at ANZ) one would find that there are more prisoners listed on this form than are included in the database for that particular court session. The court returns include all prisoners, whether convicted, acquitted or discharged.

• For some select cases, relevant judges’ notebook entries have been transcribed. These transcriptions are verbatim with no modernising of spelling or grammar. The intention was to make available primary sources in as close to possible the form in which they were initially prepared.

Search Function

Basic Search: Keyword only

Advanced Search:

• Keyword Search (text)

• Case name (text)

• Date (text)

• Judge (drop down selection)

• Court (drop down selection)

• Location (drop down selection)

• Case Type (drop down selection)

• Criminal Charge (drop down selection)

• Civil Proceedings(drop down selection)

• Government Proceedings (drop down selection)

• Name of Counsel (text)

• Ethnicity (drop down selection)

• Gender (drop down selection)

Case Contextualisation

Key cases from the database have been selected to be contextualised by the research team. The methodology for selecting cases is as follows:

When the entering of cases by decade concluded, the Research Fellow compiled a list of key cases based on the following criteria:

• The state of completion of the material (either physically or in terms of information). If the material is too fragmentary to be of real use for research and the advancement of New Zealand legal scholarship it should not be included;

• The significance of the point of law at issue. For example, cases which are about the interpretation of long since repealed statutes – unless the case amounts to a contribution to the general law of statutory interpretation – usually would not be included;

• Whether the case is of historical interest in terms of providing information about issues in New Zealand political and constitutional history, issues in social history, or the way in which the law viewed Maori at this time. It may be that a case is of fairly peripheral significance in terms of its precedent value, but which might nevertheless of great historical interest – in which case it should be included;

• Whether the case involved prominent people.

• Cases which are ‘one of a kind’ even if concerning more trivial points of law.

These cases were then given to the research team, who gave each case a ranking, based on the criteria below:

• Level One: the case is noted in the database. These are often self-selecting as we have little information about them;

• Level Two: the case is noted in the database and also transcribed;

• Level Three: the case is noted in the database, transcribed, and some basic contextualising material provided. This might be information about the kind of action; about the people involved; or noting legal points of interest. We include references to additional sources;

• Level Four: the case receives the same treatment as level 3, but with a short 1000 word essay on its importance appended;

• A level five case is one on which we will probably write a full academic article. In practice we did not really identify anything as level 5, as we assume that the articles will be a natural outgrowth of level four treatment.

The contextualisation’s for cases identified as level three or four are posted on the Lost Cases website, with a fuller version of these case notes published by the Victoria University of Wellington Law Review. Cases that have been given a ranking of level 5 have been allocated to individual team members, who intend to publish on these cases in the future.

This is an ongoing process that will continue after the project concludes. Case notes will be posted online when made available.

If you have any further questions about the project’s methodology please email the team at nzlostcases@vuw.ac.nz