Section 8 of the Senior Courts Act 2016 provides:
8 Seal
(1) The High Court must have a seal, and the Registrar of the court is responsible for the seal.
(2) The seal must be used for sealing judgments, orders, certificates, and any other document issued by the court that must be sealed.
This is not a new provision. Section 50(1) of the Judicature Act 1908 stated “the court shall have in the custody of each Registrar a seal of the court, for the sealing of all writs and other instruments or documents issued by such Registrar and requiring to be sealed”. Still earlier equivalents include s 37 of the Supreme Court Act 1882 and s 11 of the Supreme Court Act 1860.
And yet, despite this being perhaps one of the most interesting sections in the statute books today, very little has been written about it. My researches have revealed no academic articles in the New Zealand legal literature about the seals of the High Court, which is simply baffling to me.
Modern-day requirements for seals can be traced to early Norman legal practices in England. When formal judgments were drawn up, they would be endorsed with a stamp placed into melted wax. The wax was traditionally melted over a small lamp fueled by oil, distilled from the blubber of seals. Thus, a decision was said to be “sealed”, and was thereafter to take legal effect. In the early 19th century, English decisions were sealed using seal oil obtained from New Zealand shores (although Canada and South Georgia were also significant sources of seal oil).
In today’s more enlightened times, the sealing of a judgment no longer calls for seal oil, and the seal’s role is decidedly less lethal. Pursuant to the legislation, the High Court keeps on hand an official seal, in a special temperature-controlled water tank and enclosure in the Court’s basement. Until 1992, the seal was kept in the High Court at Wellington. From 1992 it has been housed in Auckland due to the greater number of cases heard there.
Under modern-day practice approved by the SPCA, the court registrar lures the seal onto a large inkpad with a trail of kahawai. Once the seal is properly inked up, it is lifted by a team of court staff and then pressed gently onto decisions. The resulting ink-stamp on the judgment constitutes “sealing” in its modern form.
The present seal of the High Court is a Southern elephant seal called Morrie. Before his appointment in 2011 he resided on the shores of Campbell Island, and within New Zealand territorial waters.
Although the seal of the High Court has been a role that has not typically attracted attention, seals over the decades have featured in important moments in New Zealand legal history. The first seal of the then-Supreme Court – a New Zealand sea lion called Anton – sat en banco with Chief Justice Sir William Martin in 1842 when complex matters required a full bench.
When an early seal of the High Court – Felipo – retired in 1913, Chief Justice Sir Robert Stout shot it and had him turned into a set of judicial robes. The robes have since been worn by every Chief Justice at their swearing-in.
In 1983, the then-seal of the High Court – a New Zealand fur seal called Keith – died unexpectedly in office, and the then-Department of Courts was unable to arrange a replacement until December of that year. The resulting dearth of official civil judgments from that year can still be seen today in that there is only a single volume of New Zealand Law Reports that year.
Although s 8(2) of the Senior Courts Act 2016 bestows responsibility for the seal on the Registrar of the Court, the judges also take an active role. The Chief High Court Judge is responsible for maintaining a roster of judges to feed the seal on weekends. During Court breaks at Easter and Christmas/New Year, judges with coastal baches regularly take the seal for holidays.
The seal of the High Court has also attracted criticism. Of the 22 seals of the High Court (and former Supreme Court) there has never been a female seal appointed, despite several extremely well-qualified candidates. In addition, animal rights activists assert that, with increasing case numbers, Morrie is becoming overworked. They seek a legislative amendment permitting the appointment of up to two part-time deputy seals in order to reduce the workload on the full-time permanent seal.
Plainly, this short overview cannot replace serious academic study of this topic. My current application for Borrin Foundation funding would see me undertake an interdisciplinary study of the work of the seals of the High Court, as well as record interviews with the two former seals of the High Court that remain alive today (Truman and Buzz). Any and all writing on this under-considered subject should be welcomed by a legal community at risk of forgetting the important place of the seal of the High Court.
Strictly obiter 