Chapter 2 - The present New Zealand courts


Court of Appeal

New Zealand has had a Court of Appeal since 1862. Until 2003, it was New Zealand’s highest domestic court.35 Originally, the Court of Appeal consisted of judges of the Supreme Court (as the High Court was then called) on a rotating basis. Since 1958, however, it has had a permanent base in Wellington with High Court judges specifically appointed as Court of Appeal judges by the Governor-General.36

The Court comprises a President and not fewer than five, nor more than nine, other judges.37 Emphasis is often placed on the harmonious and collegial nature of the Court, which is made possible by the small number of judges, and it has been said that this “allowed it to develop the law of New Zealand in a logical and coherent fashion appropriate to local needs”.38

As its name suggests, the Court of Appeal is almost exclusively an appellate court. It hears civil and criminal appeals from the High Court and appeals from the District Courts on serious criminal charges. It hears appeals from appellate decisions of the High Court in District Courts’ cases and some tribunal matters with leave, if a further appeal is warranted. The court may also grant leave to hear appeals against pre-trial rulings in criminal cases, and appeals on questions of law from the Employment Court.

The Court of Appeal has limited original jurisdiction. Pursuant to section 64 of the Judicature Act 1908, the High Court can order the removal of a civil case to the Court of Appeal if the circumstances of the proceeding are exceptional. The High Court can also order that a criminal prosecution be tried at bar by the Court of Appeal with a jury on the ground of extraordinary importance or difficulty.39 Some cases stated under the Commissions of Inquiry Act 1908 are also dealt with originally in the Court of Appeal.40

The Court of Appeal is separated into criminal and civil divisions and usually sits as a bench of three judges.41 There are circumstances when it must sit as a Full Court of five judges,42 including where a case is considered of sufficient significance to warrant the consideration of a Full Court. When sitting as a three judge division, the bench usually includes one or two High Court judges, (as nominated by the Chief Justice), and must include at least one Court of Appeal judge.43

The establishment of the Supreme Court has not supplanted the role of the Court of Appeal. As the Law Commission observed in Delivering Justice for All, a strong, intermediate appellate court at this level is essential for the health of the court system.44 The workload of the Court of Appeal has not diminished,45 and it continues to be the appellate court for most litigated cases, exercising an important role in developing legal principle and maintaining consistency in the application of the law.

The Court of Appeal disposed of 343 civil appeals and 557 criminal appeals in the 12 months to 30 June 2011.46

Before the establishment of the Supreme Court in 2003, New Zealand’s highest court of appeal was the Judicial Committee of the Privy Council which sits in London.

Judicature Act 1908, s 57(2).

Judicature Act 1908, s 2(b).

P Spiller, J Finn and R Boast A New Zealand Legal History (2nd ed, Brookers, Wellington, 2001) at 240.

Judicature Act 1908, s 69.

See, however, s 34 of the Inquiries Bill 2008, which provides instead for cases stated to be heard in the High Court.

However, any two judges may act as the Court for the purpose of delivering judgment and a single judge may make incidental orders and directions.

Judicature Act 1908, s 58D(4).

Judicature Act 1908, s 58A.

New Zealand Law Commission Delivering Justice for All (NZLC R85, 2004) at 277.

Although it is anticipated that the criminal appeal workload will gradually reduce once the Criminal Procedure Act 2011 comes into force.

Courts of New Zealand “Supreme Court, Court of Appeal and High Court – workload statistics” < >.