Contents

Chapter 13
The appellate courts

Court of Appeal

Composition

13.4Sections 58 to 58F of the Judicature Act 1908 deal with the composition of the Court of Appeal. These were summarised in Issues Paper 29, where the Commission said the provisions are cumbersome and repetitive, and proposed that they be redrafted to make them clearer and more accessible to users of the courts legislation.185

13.5In Issues Paper 29, the Commission said the present requirement for three judges to sit in each division of the Court of Appeal (unless the matter requires a full court or is an incidental order or direction in a civil matter) is resource intensive and may be unnecessary for some matters. We noted the more recently enacted Criminal Procedure Act 2011 provides for the Court of Appeal to sit as a panel of two judges for contested applications for leave to appeal and contested applications for extensions of time in which to appeal, and proposed that, for consistency, the same regime should apply to equivalent applications in the civil jurisdiction. We said that if two judges were permitted to determine these limited matters, at least one judge should be required to be a permanent member of the Court of Appeal, and that for the purposes of appeals, the Court should continue to be required to sit in panels of three, unless the matter warrants consideration by the full Court.

13.6We proposed that, rather than specifying what a single Court of Appeal judge is empowered to do, new courts legislation should state a single Court of Appeal judge may deal with everything except appeals, contested applications for leave to appeal, and contested applications for extension of time in which to appeal. We suggested, as a safeguard, there could be an automatic right of review of any decision made by a single judge, except where the decision itself was a review of a decision by a Registrar. We noted if such a change was made, the corresponding provision in the Criminal Procedure Act 2011 would require consequential amendment.

13.7Submitters who responded on these issues (the New Zealand Law Society, Duncan Cotterill and the Senior Courts’ judges) all broadly agreed with the above proposals. However, the Crown Law Office said the composition of the Court of Appeal is generally well understood, and that it was not certain any change is required. We do, however, think the provisions would be much simpler and easier to understand if the above changes were made in new courts legislation.

13.8The Law Society noted there would need to be provision for a further member of the Court of Appeal to be co-opted if there was a division of opinion on a two-judge panel. However, we are not sure that this is practical, as in reality it would require an entirely new panel of three judges to decide the application. We consider that, in line with what happens in the Supreme Court,186  if there is a division of opinion, the application should be dismissed.

R57 Sections 58 to 58F of the Judicature Act 1908 should be made clearer in new courts legislation.

R58 Section 61A of the Judicature Act 1908 should be redrafted to enable a single Court of Appeal judge to deal with all applications except appeals, contested applications for leave to appeal, and contested applications for extensions of time in which to appeal, with a right of review to a three judge panel as of right. A consequential amendment to the same effect should be made to the Criminal Procedure Act 2011.
R59 New courts legislation should allow two Court of Appeal judges (one of whom must be a permanent member of the Court) in civil cases to sit on contested applications for leave to appeal and contested applications for extensions of time in which to appeal. If there is a division of opinion, the application would be declined.

Publication of procedures

13.9In Issues Paper 29, we also asked whether the Court of Appeal should continue to be required to make its procedures for determining the number of judges on a panel available to the public, and, if so, whether the same principle should apply in the High Court and Supreme Court.

13.10The New Zealand Law Society and Duncan Cotterill answered both these questions affirmatively. The Senior Courts’ judges said that, although the Court of Appeal currently publishes its procedures for determining which matters are dealt with by panels of three judges (permanent court or divisional court) and which matters are dealt with by a full Court, these are in general terms, given the need for flexibility, so it is unclear what purpose is served by this. The judges said the Court of Appeal is happy to continue to publish its procedures, but suggested publication be on the Courts of New Zealand website, rather than in the Gazette. The Senior Courts’ judges did not see any need to extend requirements for publication of the procedures for determining the number of judges allocated to hearings to the Supreme Court or the High Court.

13.11The Commission considers that the courts should operate in a transparent fashion, and the public have a right to know how the number and allocation of judges hearing a matter is determined. In our view, there should be consistency between the courts, so there should be a published protocol for when the High Court sits as a full Court and for when the Supreme Court sits in two, three or five judge leave panels. These procedures should be published both in the Gazette (to reflect their official status) and online on the Courts of New Zealand website to enable greater accessibility by members of the public.

R60 The High Court, Court of Appeal and Supreme Court should each be required in new courts legislation to publish, by way of Gazette notice and the Courts of New Zealand website, a protocol for when the judges sit as a full Court or in each of their particular panels.

High Court judges sitting in divisions of the Court of Appeal

13.12Currently, the Chief Justice determines which High Court judges are to sit in the Court of Appeal, in consultation with the President of the Court of Appeal and the Chief High Court Judge. Sections 58A(3)187  and 58B(3)188  of the Judicature Act 1908 provide that a nomination of a High Court judge by the Chief Justice must be made either in respect of a specified case or specified cases, or in respect of every case to be heard by the Court of Appeal during a specified period not exceeding three months. The Chief Justice must specify whether that judge is to work on civil or criminal appeals.
13.13In Issues Paper 29, we suggested it may be more appropriate for the President to select which judges should sit on the Court of Appeal, with the concurrence of the Chief High Court Judge.189  We said it would be more efficient for the selected judge to be seconded for a period of up to three months, and to sit on whatever appeals the President nominates, regardless of whether they are civil or criminal, as the permanent judges do. We also suggested there be a limit on the President’s powers to roll over a High Court judge’s selection, so that a High Court judge could sit in the Court of Appeal for no more than four months aggregate in any calendar year. The Senior Courts’ judges and the New Zealand Law Society agreed with these proposals. We therefore make recommendations accordingly.

R61 The President of the Court of Appeal, with the concurrence of the Chief High Court Judge, should be empowered to select the High Court judges who will sit in the Court of Appeal.

R62 High Court judges should be seconded to the Court of Appeal for a particular case, or for one or more specified periods of up to three months, to a maximum of four months aggregate in a calendar year.

R63 The President of the Court of Appeal should allocate the workload of a High Court judge sitting in the Court of Appeal.

High Court judges sitting on a full Court of the Court of Appeal

13.14Another issue raised in Issues Paper 29 was whether section 58F of the Judicature Act 1908, which provides for a High Court judge to sit on a full Court of the Court of Appeal in particular circumstances, should be maintained in new courts legislation. The Commission said that if a matter is significant enough to warrant a hearing before the full Court, then it is appropriate that the hearing panel should comprise five Court of Appeal judges.

13.15The New Zealand Law Society and the Senior Courts’ judges agreed. One submitter thought the Court should retain the flexibility to have a High Court judge sitting on a full Court, but we consider that there are sufficient retired appellate judges who could sit in an acting capacity if the need arose.

R64 Section 58F of the Judicature Act 1908, which allows a High Court Judge to sit on a full Court of the Court of Appeal, should not be included in new courts legislation.

Section 60(1) – Specific rule-making power

13.16Section 60(1) of the Judicature Act 1908 provides that the Court of Appeal may appoint ordinary or special sittings of the Court and may make rules in respect of “the places and times for holding sittings of the court, the order of disposing of business, and any other necessary matters”.

13.17In Issues Paper 29, the Commission said that the section 60(1) power had never actually been used by any Court of Appeal, and, according to the judges, was unlikely to ever be used.190  We therefore suggested that section 60(1) was unnecessary, and proposed that it not be carried over in the new courts legislation.

13.18While the Senior Courts’ judges agreed, both Duncan Cotterill and the New Zealand Law Society submitted that a flexible approach to the place and time of sittings is of great value in an emergency, citing the Christchurch earthquakes in particular. We agree there should be provision for emergency sittings of the Court, but think the relevant provision should be simplified.

R65 Section 60(1) of the Judicature Act 1908, which deals with specific rule-making powers in the Court of Appeal, should be repealed and replaced with a provision enabling the court to sit when and where it chooses in extraordinary circumstances.

Power to remit proceedings to the High Court

13.19In Issues Paper 29, the Commission raised the issue of the scope of section 62 of the Judicature Act 1908 in light of the decision in Lockwood v Bostik,191  and said new courts legislation should make it clear that the Court of Appeal may order a retrial in civil matters, as it may in criminal matters.192  No submitters disagreed and we recommend accordingly.

R66 There should be a clear provision in new courts legislation enabling the Court of Appeal to order a retrial in both civil and criminal matters.

Transfer of proceedings from High Court to Court of Appeal

13.20Section 64 of the Judicature Act 1908 provides that the High Court may order the transfer to the Court of Appeal of a civil proceeding pending before the High Court in exceptional circumstances. As noted in Issues Paper 29, preliminary consultation led the Commission to suggest that it would be more appropriate for there to be a power for a High Court judge to give leave for the parties to ask the Court of Appeal whether the proceedings may be transferred, with the Court of Appeal determining whether it should hear the matter.193
13.21The Senior Courts’ Judges and the New Zealand Law Society agreed, although the latter stated that filing fees in respect of interlocutory applications to the Court of Appeal would need to be reviewed, as they are substantially higher than those in the High Court.194

13.22On the other hand, Duncan Cotterill disagreed with the proposal. In its view:

…The limits on allowing the removal of a proceeding directly to the Court of Appeal already protect the Court of Appeal from being overwhelmed. Requiring leave from the High Court to make the application, and then an application to the Court of Appeal would double the court’s workload in determining whether to remove a case. If the Court of Appeal judges believe that too many proceedings are being removed from the High Court then the criteria could be reassessed, but we do not believe that a two-step process for the removal should be adopted.

13.23We accept this last argument, and consider that it would place an undue burden on litigants to have to seek leave from the High Court to ask the Court of Appeal whether the proceedings may be transferred, and then have the Court of Appeal determine whether it should hear the matter. Further, we are not aware of any evidence that the High Court has been granting applications under section 64 inappropriately; indeed, in a recent case an application was declined despite all parties consenting to it.195  The existing test sets a high threshold (“exceptional circumstances”) and the Court has noted that the power should be exercised only “sparingly”.196  We therefore do not recommend any change to the current position.

R67 Section 64 of the Judicature Act 1908 (Transfer of civil proceedings from High Court to Court of Appeal) should be retained, unchanged, in new courts legislation.

Trial at Bar

13.24Section 69 of the Judicature Act 1908 is an archaic provision, which states that the Court of Appeal may hear and determine a criminal trial of extraordinary importance or difficulty as the court of first instance. It allows the trial to be held before a jury summoned from a jury district selected by the Court. In cases to which section 69 applies, the proceedings are on the same basis as a trial at bar in England (or as near to it as possible), and the Court of Appeal has the same jurisdiction, authority and power as the Queen’s Bench has in England in respect of trials at bar.

13.25In Issues Paper 29, we outlined the history of the trial at Bar in England, and gave examples of its historical usage.197  We noted that trial at bar under section 69 appears never to have been applied in New Zealand, pointed out the lack of criteria in the provision, and said a decision to use section 69 in the case of a specific defendant could justifiably be viewed as discriminatory, unfair and contrary to the principle of the rule of law.

13.26The Commission proposed that the provision be abolished, and all submitters who addressed this issue agreed. We therefore recommend accordingly.

R68 Section 69 of the Judicature Act 1908 (Trial at bar) should be repealed.

Appellate pathways to the Court of Appeal

13.27In Issues Paper 29, we referred to the long-standing issues relating to section 66 of the Judicature Act 1908.198  This is an important provision relating to interlocutory appeals.
13.28We deferred dealing with the section pending the release of a judgment by the Supreme Court in Siemer v Heron.199  That judgment indicates that the section may need legislative attention, but the Minister of Justice has advised the Commission that that matter will be attended to by the Ministry of Justice. Accordingly, we make no recommendation in this regard.
13.29We also raised the question of whether there is a case for an intermediate appellate division in the High Court for District Court jury trial appeals.200  We understand the Commission will be given a separate reference on that issue, so we make no present recommendation on this either.
185At [10.2]-[10.8].
186Supreme Court Act 2003, s 31(2).
187Which deals with criminal matters.
188Which deals with civil matters.
189Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 183, at [10.17].
190At [10.22].
191Lockwood v Bostik New Zealand Ltd [2010] NZCA 436 (leave to appeal declined: Bostik New Zealand Ltd v Lockwood [2010] NZSC 150).
192Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 183, at ]10.30].
193At [10.32].
194While this last point is outside the scope of our terms of reference, we note that the Ministry of Justice has recently issued a consultation paper on civil fees: Ministry of Justice Civil fees review: A public consultation paper (September 2012).
195Royal Forest and Bird Protection Society of New Zealand Incorporated v Buller Coal Limited [2012] NZHC 1736.
196At [31].
197Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 183, at [10.33]-[10.37].
198At [11.1].
199Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.
200Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 183, at [11.3].