Chapter 10 - Court of Appeal

Composition of the Court of Appeal

Sections 58 to 58F of the Judicature Act 1908 contain provisions dealing with the composition of the Court of Appeal. Essentially, these provide that the Court of Appeal generally sits in divisions of three judges. There are separate divisions for criminal and civil proceedings. The Court must adopt a procedure for assigning judges to act as members of a criminal or civil division of the Court, and that procedure must be published in the Gazette.

The Court must sit as a Full Court of five judges to hear and determine cases that are considered to be of sufficient significance to warrant this, and cases referred to the Full Court from a division of the Court. The question of whether a case is of sufficient significance to warrant the consideration of a Full Court must be determined in accordance with the then current procedure adopted by the Court and published in the Gazette.243

Section 61A provides that one Court of Appeal judge, sitting in chambers, may make any incidental orders and give incidental directions in any civil appeal or proceeding before the Court of Appeal, not being an order or a direction that determines the appeal or disposes of any question or issue that is before the Court in the appeal or proceeding.

With regard to criminal matters, the Criminal Procedure Act 2011 specifies that a judge of the Court of Appeal may make any incidental orders and give any incidental directions that he or she thinks fit, other than an order or a direction that determines the appeal or disposes of any question that is before the Court in the appeal.244

Section 58A(2) of the Judicature Act 1908 requires the Chief Justice to nominate judges of the High Court who may comprise members of the Court of Appeal for the purposes of a specified criminal case or cases, or all criminal cases in a specified period, not exceeding three months. The Chief Justice is required to consult with the Chief High Court Judge and the President of the Court of Appeal on any nomination. A virtually identical provision relating to civil proceedings can be found in section 58B(2).

Sections 58A and 58B contain long provisions regarding the number of High Court judges that may sit in each division of the Court of Appeal. Section 58A provides that in criminal appeals divisions, there must be:

  • three Court of Appeal judges;
  • two Court of Appeal judges and one High Court judge nominated by the Chief Justice; or
  • one Court of Appeal judge and two High Court judges nominated by the Chief Justice.

Section 58B deals with the composition of civil appeals divisions, and essentially repeats the requirements for criminal proceedings in section 58A.

Reform

As they are cumbersome and repetitive, in our view sections 58A to 58F could be drafted much more simply to make the legislation clearer and more accessible to both the public and the legal profession.

Further, the present requirement for three judges to sit in each division (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. It has been suggested to us that it should be possible 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. The Criminal Procedure Act 2011 provides for this in criminal proceedings,245 and we consider the same regime should apply to equivalent applications in the civil jurisdiction. We do not see any good reason for criminal and civil proceedings to be inconsistent in this regard. If two judges were permitted to determine these limited matters, at least one should be required to be a permanent member of the Court of Appeal.

If the above change was made, for the purposes of appeals, the Court should continue to be required to sit in panels of three, unless the matter warrants consideration by a Full Court.

Rather than specifying what a single Court of Appeal judge is empowered to do, another option would be for the courts legislation to state that 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. As a safeguard, there could be an automatic right of review of any decision made by a single judge, except where the decision involves a review of a decision of the Registrar.

If such a change were made, section 61A of the Judicature Act 1908 and the corresponding provision in the Criminal Procedure Act 2011 would require consequential amendment.

Although we have heard calls for the administration of panels to be left to the President and the other judges of the Court of Appeal without the present requirement for these procedures to be the subject of a Gazette notice, we consider that a requirement to make the Court’s procedures publicly available is appropriate. The Court should operate in a transparent fashion, and the public has a right to know how the number and allocation of judges hearing a matter is determined. We understand that counsel often make enquiries with the court staff in this regard.

We note that there is no Gazette protocol for when the High Court sits as a Full Court. Likewise, there is no Gazette protocol for when the Supreme Court sits in two, three or five judge leave panels. It is desirable that there be consistency between the courts in this regard, and consideration should be given to requiring the Supreme Court and the High Court to make their own procedures for determining the number of judges on a panel available to the public.

Our preliminary consultation indicated that there is no need to maintain section 58F of the Judicature Act 1908 in new courts legislation, because it is highly unlikely to be used. Section 58F provides for a High Court judge to sit on a Full Court in the Court of Appeal in particular circumstances. We agree that this section is unnecessary and does not need to be carried over into new legislation. If a matter is significant enough to warrant a hearing before a Full Court, then it is appropriate that the hearing panel should comprise five Court of Appeal judges.

Currently, 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. It has been suggested to us that it would 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. We agree that this would be simpler to administer, and would assist with the integration of seconded judges onto the Court of Appeal.

Currently, when a High Court judge is selected to assist the Court of Appeal with its work, sections 58A(3) and 58B(3) (which deal with criminal and civil matters, respectively) 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.

It has been suggested to us that it is unnecessary for a judge to be allocated exclusively to a criminal or civil division, and that it would be more efficient for the selected judge to be seconded for a period of three months, and to sit on whatever appeals the President nominates, regardless of whether they are civil or criminal, as the permanent judges do.

There would need to be a limit on the President’s powers to select High Court judges, as it would be constitutionally improper for the President to continuously roll over a High Court judge’s selection for three month periods, thus effectively enabling that judge to sit permanently on the Court of Appeal without having been appointed as a Court of Appeal judge by the Governor-General in the usual fashion.

We consider the statute should specify a maximum period of time, such as four months in any calendar year, in which a High Court judge may sit on the Court of Appeal.

Q25

Should a new Courts Bill allow two Court of Appeal judges in civil cases to sit on contested applications for leave to appeal and contested applications for extensions of time in which to appeal?

Q26

What matters should a Court of Appeal judge sitting alone be able to deal with?

Q27

Should the Court of Appeal be required to make its procedures for determining the number of judges on a panel available to the public? If so, should the same principle apply in the High Court and Supreme Court?

Q28

Do you agree that section 58F, which allows a High Court Judge to sit on a Full Court of the Court of Appeal, is unnecessary and should be omitted from a new Courts Bill?

Q29

What limitations should be placed on bringing in High Court judges to sit as part of the Court of Appeal?

Section 58F.

Section 333 (4) (not yet in force).

Section 333 (not yet in force).