Chapter 11 - Appellate pathways

Issues

Originally, we intended to deal in this Issues Paper with section 66 of the Judicature Act 1908, which permits appeals from the High Court to the Court of Appeal as of right. This section has given rise to substantial difficulties over the years as to what appeals come within its purview.257  However, our research and initial consultation suggest that dealing with one section relating to appeals in isolation creates its own problems, and that there are a number of other matters in relation to appeals that require consideration. We have reluctantly come to the view that overall appeal pathways would be better dealt with in a standalone appeals reference. While there may be other areas that should also be considered, the appeals issues that are most immediately apparent to us are set out below.

First, section 66 of the Judicature Act 1908, always notoriously difficult, was noted recently by the Supreme Court as being in need of a fundamental rethink.258  The same observation had been made to the Commission by the Court of Appeal in preliminary consultation.

Second, the Court of Appeal continues to be an extremely busy intermediate appellate court with a significant number of lower level criminal appeals.  We do not intend by the use of that expression to be pejorative – every criminal appeal is of great significance to the appellant.  But there is a question as to whether many of those appeals merit the attention of the permanent court, or a divisional court in the Court of Appeal. While we understand that it is anticipated that the workload of the Court of Appeal will reduce in the next few years as a result of the passage of the Criminal Procedure Act 2011, it may be that the issue of whether there should be a divisional Court in the High Court, with two or three High Court judges to hear such appeals, ought to be revisited at some stage. 

A number of issues also arise in relation to appeals to the Supreme Court. For example, the Supreme Court has identified (but has not yet had to determine) a potential jurisdictional issue around its ability to hear an appeal that is in substance a criminal proceeding (but which would fall outside section 10 of the Supreme Court Act 2003), yet is in form a civil proceeding.259

The time has perhaps also come for another review of what civil appeals, particularly on points of law, should terminate in the Court of Appeal, and when there should be the ability to seek leave to appeal to the Supreme Court. In particular, there needs to be a principled approach to when what could potentially be three separate appeals (with leave) on questions of law should be entertained. This issue warrants some further explanation, as it is an area on which there has been surprisingly little comment to date.

Statutory bars on civil appeals to the Supreme Court

Section 7(a) of the Supreme Court Act 2003 provides that:

The Supreme Court can hear and determine an appeal by a party to a civil proceeding in the Court of Appeal against any decision made in the proceeding, unless–

(a) an enactment other than this Act makes provision to the effect that there is no right of appeal against the decision; or…

There are a number of statutes that contain a provision along the lines that “the decision of the Court of Appeal on an appeal under this section, or any application for leave to appeal to the Court, shall be final”. Two examples appear in section 428(3) of the Maritime Transport Act 1949 and section 163(4) of the Accident Compensation Act 2001. Those provisions operate in a context in which there has been an appeal on a point of law to the High Court, followed by an appeal on a point of law (with leave) to the Court of Appeal. In such cases, the Supreme Court will not, pursuant to section 7(a) of the Supreme Court Act 2003, have jurisdiction to hear a further appeal.

Then there are provisions that are less clear than is desirable. For instance, sections 97(4) and 98 of the Patents Act 1953 appear, when read together, to be a similar kind of bar, although the point has not been decided. Under the Patents Act 1953, the decision of the High Court will be final (section 97(4)), but this is subject to the ability to appeal to the Court of Appeal (section 98). With no reference to a further appeal to the Supreme Court, the implication is that these sections “[make] provision to the effect that there is no right of appeal against the decision” of the Court of Appeal.260

A useful starting point for consideration of this issue is the report of the Advisory Group established in 2001 to advise the Attorney-General on the purpose, structure, composition and role of a final court of appeal.261  In considering the jurisdiction of the Supreme Court, and in particular a “two-tier appellate system”, it stated:262

64. The Advisory Group considers that there should be at least two opportunities to appeal a judicial decision on a substantive matter…

65. Currently, appeal rights from different courts and quasi-judicial bodies vary significantly, often with little apparent justification. If the Supreme Court is to focus on law clarification and development the Advisory Group considers that the opportunity to appeal to that court should, in principle, be available in the full range of cases, whether from specialist or general courts. In other words, the Supreme Court should be the court which has the ultimate responsibility for the judicial clarification and development of the law in New Zealand.

After discussing how the introduction of the Supreme Court could lead to some situations where three appeals were potentially available,263 but that leave requirements would mean that there would not necessarily be any need to limit the number of appeal opportunities,264 the report stated:265

71. The group considers that the various statutes limiting appeals to the Court of Appeal and other courts should be analysed to determine whether there should be any exceptions to the general principle that any matter should be able to be appealed to the Supreme Court with the leave of that Court.

When the Supreme Court Act 2003 was enacted, it would seem that many of the statutes that provided that a decision of the Court of Appeal was final were reviewed. For example, section 85 of the Protection of Personal and Property Rights Act 1988 and section 120 of the Child Support Act 1991 both had references to Court of Appeal decisions being final removed by the Supreme Court Act 2003, whereas section 93 of the Domestic Violence Act 1995, which also contained such a “finality” provision, was not changed.266

The resulting position is that there are at present at least 15 statutes in existence that contain provisions declaring that certain decisions of the Court of Appeal are final. As noted above with respect to the Patents Act 1953, there are also statutes that arguably “[make] provision to the effect that there is no right of appeal against the decision” of the Court of Appeal.

Further, we note that legislation is still being drafted that declares decisions of the Court of Appeal to be final. For example, clause 62(4) of the Non-bank Deposit Takers Bill, which was introduced into Parliament on 3 August 2011 and had its first reading on 10 August 2011, provides that “[t]he decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final.”

It would, accordingly, appear that any remaining “finality” provisions have been retained on purpose, and this is reinforced by the fact that legislation is still being drafted that has this same effect. Having said that, some statutes may have been overlooked.

In any event, there are sound arguments in favour of the Supreme Court having final oversight of all legal questions in New Zealand. To take the accident compensation scheme, which is an important social matter, an appeal on a point of law in such a case has the potential to affect hundreds of claimants. There are decisions in the Court of Appeal which have done just that.

On the other hand, there are quite extensive review provisions on such claims. To then add a possible three tiers of appeals on a question of law may be thought to be simply too great a burden for litigants (particularly when the individuated claim itself may not be large).

It may be appropriate for all remaining “finality” provisions to be reviewed to determine whether they are still warranted. Further, the situation in those statutes where the Supreme Court’s jurisdiction (or lack thereof) is dealt with only implicitly, some of which, for example the Patents Act 1953 and the Dairy Industry Restructuring Act 2001, are highly significant, should be clarified.

Conclusion

We have come to the provisional view that the whole question of appellate pathways should be reviewed en bloc. It is likely that the Commission will approach the Minister of Justice with a view to being accorded such a reference.

Andrew Beck “When is a judgment not a judgment?” [2007] NZLJ 381.

Siemer v Heron [2011] NZSC 133.

Bujak v The District Court at Christchurch [2009] NZSC 96 at [2].

Supreme Court Act 2003, s 7(a).

Advisory Group Replacing the Privy Council: A New Supreme Court (prepared for the Attorney-General, 2002).

At [64]-[65].

At [68].

At [69].

At [71].

Given all three of these provisions were referred to one after another in Appendix C to the report, which provided an overview of appeal paths from New Zealand courts and listed the various appeal rights in general courts and from specialist courts and tribunals, it seems unlikely that section 93 of the Domestic Violence Act 1995 was simply overlooked.