Contents

Chapter 13
The appellate courts

The Supreme Court

Introduction

13.30The Supreme Court Act 2003 is a relatively recent statute. Hence, much less modernisation of language or provisions is required than for, say, the Judicature Act 1908.

13.31If there is to be a unitary statute, in our view the Supreme Court Act should be consolidated in that Courts Act. If the decision is made in favour of binary statutes, then the present Supreme Court Act should be incorporated into the proposed Senior Courts Act.

Limitations on appeals to the Supreme Court

13.32In the “Appellate pathways” chapter of Issues Paper 29, the Commission’s principal concern was with respect to statutory bars on civil appeals to the Supreme Court under some statutes.201
13.33There are more than 20 statutes where appeals, even on points of law, are precluded from being advanced to the Supreme Court of New Zealand.202  We suggested that it may well be timely to review these provisions to ascertain whether they are appropriate in today’s circumstances.

13.34Our provisional view was that there is an issue of principle regarding whether the Supreme Court should have final oversight of all legal questions in New Zealand. However, it was obvious that some significant issues of public policy might be raised in relation to important statutes. We suggested that it might be appropriate to have an “appellate pathways” reference advanced to the Commission where these matters could be distinctly considered.

Update

13.35Little in the way of submissions was received on the issue of appeals to the Supreme Court. Since Issues Paper 29 was published, the matter has been discussed with the Minister of Justice who has indicated that she is not presently minded to extend a reference to the Commission to consider this subject. If work is to be undertaken on this general issue in the future, it would appear therefore that it will need to be attended to within the Ministry of Justice.

13.36From a statutory drafting point of view, if changes are to be made to the “precluded” avenues of appeal, amendments would need to be made to the particular statutes that confer jurisdiction on other courts.

13.37To take a simple illustration, under the existing Patents Act it appears that it is not possible to advance a point of law on appeal beyond the Court of Appeal.203  That position seems to have been maintained in the Patents Bill that is currently before Parliament.204  It is the patents legislation, not the Judicature Act 1908 or a new Courts Act, which would require amendment to make it possible to obtain leave for a Supreme Court appeal in this subject area.

13.38In the circumstances, and given the Minister’s advice, we make no recommendation regarding appeals to the Supreme Court.

201At [11.6]-[11.17].
202See, for example, s 428(3) of the Maritime Transport Act 1949 and s 163(4) of the Accident Compensation Act 2001.
203Patents Act 1953, ss 97(4) and 98.
204Patents Bill 2008 (235-2), cl 264.