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Making Up the Issue: The Judges' Role in Formulating Actions in the Crown Colony Period - Pharazyn v. Smith (1844)

Victoria University of Wellington Law Review, Vol. 41, 2010

27 Pages Posted: 17 Sep 2010 Last revised: 15 Jul 2013

Shaunnagh Dorsett

University of Technology Sydney, Faculty of Law

Date Written: March 16, 2010

Abstract

This paper considers one of the key procedural innovations of the first Supreme Court rules – the making up of the issue - through the lens of the Supreme Court decision in Pharazyn v. Smith (1844). Making up the issue referred to the process whereby pleadings were drafted in conference with the judge hearing the case. This contrasted with the English system of the time of a series of written exchanges between parties designed to identify the disputed issues of fact and law, and in which the role of the judge was essentially a passive one. Through Pharazyn v. Smith we can see one of the ways in which judges sought to modify English laws to the circumstances of the colony, as well as the judges’ role in shaping litigation, and hence law, in the infant colony.

Keywords: procedure, pleadings, New Zealand, Supreme Court, legal history, colony, circumstances of the colony

Suggested Citation

Dorsett, Shaunnagh, Making Up the Issue: The Judges' Role in Formulating Actions in the Crown Colony Period - Pharazyn v. Smith (1844) (March 16, 2010). Victoria University of Wellington Law Review, Vol. 41, 2010. Available at SSRN: https://ssrn.com/abstract=1572935

Shaunnagh Dorsett (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

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