New Zealand 1852 Constitution (reviewed 2014)

Part 2. The Court of Appeal

A. Constitution of the court

57. Constitution of Court of Appeal

1. There shall continue to be in and for New Zealand a court of record called, as heretofore, the Court of Appeal of New Zealand:provided and it is hereby declared that the Court of Appeal heretofore and now held and henceforth to be held is and shall be deemed and taken to be the same court.
2. Subject to this Part, the Court of Appeal comprises—
   1. a Judge of the High Court appointed by the Governor-General as a Judge of the Court of Appeal and as President of that court:
   2. not fewer than 5 nor more than 9 other Judges of the High Court appointed by the Governor-General as Judges of the Court of Appeal.
3. Any Judge may be appointed to be a Judge of the Court of Appeal either at the time of his appointment as a Judge of the High Court or at any time thereafter.
4. Every Judge of the Court of Appeal shall continue to be a Judge of the High Court, and may from time to time sit as or exercise any of the powers of a Judge of the High Court.
5. Every Judge of the Court of Appeal shall hold office as a Judge of that court so long as he holds office as a Judge of the High Court: provided that, with the prior approval of the Governor-General, any Judge of the Court of Appeal may resign his office as a Judge of that court without resigning his office as a Judge of the High Court.
6. The Judges of the Court of Appeal have seniority over all the Judges of the High Court (including any additional Judge of the Court of Appeal) except the Chief Justice and the other Judges of the Supreme Court.
7. The President of the Court of Appeal has seniority over the other Judges of the Court of Appeal.
8. Other Judges of the Court of Appeal appointed on different dates have seniority among themselves according to those dates.
9. Other Judges of the Court of Appeal appointed on the same date have seniority among themselves according to their seniority as Judges of the High Court.
10. A Judge of the Court of Appeal who resigns office as a Judge of that court without resigning office as a Judge of the High Court then has, as a Judge of the High Court, the seniority that he or she would have had if he or she had not been appointed as a Judge of the Court of Appeal.
11. While any vacancy exists in the office of President of the Court of Appeal, or during any absence from New Zealand of the President, or while by reason of illness or any other cause he is prevented from exercising the duties of his office, the senior Judge of the Court of Appeal shall have authority to act as President of the Court of Appeal and to execute the duties of that office and to exercise all powers that may be lawfully exercised by the President.
12. The jurisdiction of the Court of Appeal shall not be affected by any vacancy in the number of the Judges of that court.

57A. Judges of Court of Appeal act on full-time basis but may be authorised to act part-time

1. A person acts as a Judge of the Court of Appeal on a full-time basis unless he or she is authorised by the Attorney-General to act on a part-time basis.
2. The Attorney-General may, in accordance with subsection (4), authorise a Judge to act on a part-time basis for any specified period.
3. To avoid doubt, an authorisation under subsection (2) may take effect as from a Judge’s appointment or at any other time, and may be made more than once in respect of the same Judge.
4. The Attorney-General may authorise a Judge to act on a parttime basis only—
   1. on the request of the Judge; and
   2. with the concurrence of the President of the Court of Appeal.
5. In considering whether to concur under subsection (4), the President of the Court of Appeal must have regard to the ability of the court to discharge its obligations in an orderly and expeditious way.
6. A Judge who is authorised to act on a part-time basis must resume acting on a full-time basis at the end of the authorised part-time period.
7. The basis on which a Judge acts must not be altered during the term of the Judge’s appointment without the Judge’s consent, but consent under this subsection is not necessary if the alteration is required by subsection (6).
8. This section applies only to Judges who are appointed as Judges of the Court of Appeal.

58. Court of Appeal to sit in divisions

1. Except as provided in sections 58D and 61A, for the purposes of any proceedings in the Court of Appeal, the court sits in divisions comprising 3 Judges.
2. [Repealed]
3. There are—
   1. 1 or more divisions of the Court of Appeal for the purposes of criminal proceedings; and
   2. 1 or more divisions of the Court of Appeal for the purposes of civil proceedings.
4. Each division of the Court of Appeal may exercise all the powers of the Court of Appeal.
5. A division of the court may exercise any powers of the court even though 1 or more divisions of the court or a full court is exercising any powers of the court at the same time.
6. If the majority of the members of a division of the court considers it desirable to do so, the division may—
   1. refer any proceeding; or
   2. state any case; or
   3. reserve any question— for the consideration of a full court of the Court of Appeal, and in that case a full court has the power to hear and determine the proceeding, case, or question.

58A. Composition of criminal appeals division or divisions

1. For the purposes of any criminal proceeding that is heard by a division, the Court of Appeal comprises—
   1. 3 Judges of the Court of Appeal holding office under section 57(2); or
   2. 2 Judges of the Court of Appeal holding office under section 57(2) and 1 Judge of the High Court nominated by the Chief Justice under subsection (2); or
   3. 1 Judge of the Court of Appeal holding office under section 57(2) and 2 Judges of the High Court nominated by the Chief Justice under subsection (2).
2. Except where the work of the High Court renders it impracticable for the Chief Justice to do so, the Chief Justice must from time to time, after consulting the President of the Court of Appeal and the Chief High Court Judge, nominate the Judges of the High Court who may comprise members of the Court of Appeal for the purposes of any proceeding or proceedings to which subsection (1) relates.
3. Every nomination under subsection (2) must be made either—
   1. in respect of a specified case or specified cases; or
   2. in respect of every case to be heard by the Court of Appeal during a specified period not exceeding 3 months.
4. For the purposes of this section, criminal proceeding means an appeal or application to the Court of Appeal under Part 6 of the Criminal Procedure Act 2011.

58B. Composition of civil appeals division or divisions

1. For the purposes of any civil proceeding that is heard by a division of the court, the Court of Appeal comprises—
   1. 3 Judges of the Court of Appeal holding office under section 57(2); or
   2. 2 Judges of the Court of Appeal holding office under section 57(2) and 1 Judge of the High Court nominated by the Chief Justice under subsection (2); or
   3. 1 Judge of the Court of Appeal holding office under section 57(2) and 2 Judges of the High Court nominated by the Chief Justice under subsection (2).
2. Except where the work of the High Court renders it impracticable for the Chief Justice to do so, the Chief Justice must from time to time, after consulting the President of the Court of Appeal and the Chief High Court Judge, nominate the Judges of the High Court who may comprise members of the Court of Appeal for the purposes of any proceeding or proceedings to which subsection (1) relates.
3. Every nomination under subsection (2) must be made either—
   1. in respect of a specified case or specified cases; or
   2. in respect of every case to be heard by the Court of Appeal during a specified period not exceeding 3 months.
4. For the purposes of this section, the term civil proceeding means—
   1. any appeal to the Court of Appeal against any judgment or order given or made in a proceeding other than a criminal proceeding:
   2. any application relating to an appeal of the kind mentioned in paragraph (a):
   3. any application for leave to bring an appeal of the kind mentioned in paragraph (a):
   4. any proceeding transferred to the Court of Appeal under section 64.

58C. Assignment of Judges to divisions

1. Judges are assigned to act as members of a criminal or civil division of the Court of Appeal in accordance with a procedure adopted from time to time by Judges of the Court of Appeal holding office under section 57(2).
2. The President of the Court of Appeal must publish in the Gazette any procedure adopted under subsection (1).
3. A Judge of the High Court who is eligible to act as a Judge of a division of the Court of Appeal because of a nomination made under section 58A(2) or section 58B(2) may not be assigned to a division without the concurrence of the Chief Justice and the Chief High Court Judge.

58D. Court of Appeal to sit as full court in certain cases

1. Subject to subsection (3), a full court consists of 5 Judges.
2. Subject to section 58F, a full court is constituted only by Judges of the Court of Appeal holding office under section 57(2).
3. Where, pending the determination of any proceeding, 1 or more of the members of a full court before whom the proceeding is being heard or was heard—
   1. dies; or
   2. becomes seriously ill; or
   3. is otherwise unavailable for any reason,— it is not necessary for that proceeding to be reheard, and the remaining members may continue to act as a full court for the purposes of this section with power to determine the proceeding or any incidental matter (including the question of costs) that may arise in the course of that proceeding.
4. The Court of Appeal must sit as a full court to hear and determine—
   1. cases that are considered, in accordance with the procedure adopted under section 58E, to be of sufficient significance to warrant the consideration of a full court:
   2. any proceeding, case, or question referred under section 58(6) for hearing and determination by a full court:
   3. any appeal from a decision of the Court Martial Appeal Court under section 10 of the Court Martial Appeals Act 1953.

58E. Cases of sufficient significance for full court

1. The question whether a case is of sufficient significance to warrant the consideration of a full court must be determined in accordance with the procedure which those Judges of the Court of Appeal holding office under section 57(2) from time to time adopt.
2. The President of the Court of Appeal must publish in the Gazette any procedure adopted by the Judges of the Court of Appeal under subsection (1).

58F. High Court Judges sitting on full court

1. Whenever the President of the Court of Appeal certifies in writing that due to—
   1. the illness or absence on leave of any of the Judges holding office under section 57(2); or
   2. the need for the expertise of a specific Judge of the High Court in a particular case; or
   3. any other exceptional circumstances,—

   it is necessary for a specified Judge who has been assigned to a division of the court under section 58C to sit as a member of the full court, that Judge may sit as a member of the full court.

2. No more than 1 Judge of the High Court may sit as a member of the full court at any one time.

58G. Authority of High Court Judges

1. The fact that a Judge of the High Court acts as a Judge of the Court of Appeal is conclusive evidence of the Judge’s authority to do so, and no judgment or determination given or made by the Court of Appeal while the Judge so acts may be questioned on the ground that the occasion for the Judge so acting had not arisen or had ceased to exist.
2. A Judge of the High Court who has acted as a Judge of the Court of Appeal may attend sittings of the Court of Appeal for the purpose of giving any judgment or passing sentence in or otherwise completing any proceeding in relation to any case that has been heard by the Judge while he or she so acted.

59. Judgment of Court of Appeal

1. The judgment of the court must be in accordance with the opinion of a majority of the Judges hearing the proceeding concerned.
2. If the Judges present are equally divided in opinion, the judgment or order appealed from or under review is taken to be affirmed.
3. The delivery of the judgment of the Court of Appeal may be effected in any manner provided by rules made under section 51C.

60. Sittings of Court of Appeal

1. The Court of Appeal may from time to time appoint ordinary or special sittings of the court, and may from time to time make rules, not inconsistent with the rules of practice and procedure of the Court of Appeal for the time being in force under this Act or with the laws of New Zealand, in respect of the places and times for holding sittings of the court, the order of disposing of business, and any other necessary matters.
2. If present at a sitting of the Court of Appeal, the President presides.
3. If the President of the Court of Appeal is absent from a sitting of the court, the senior Judge of the court present presides.
4. The court has power from time to time to adjourn any sitting until such time and to such place as it thinks fit.

60A. Court of Appeal may sit in divisions

[Repealed]

61. Adjournment in cases of absence of some of the Judges

Where, by reason of the absence of all or any 1 or more of the Judges of the Court of Appeal at the time appointed for the sitting of the court or any adjournment thereof, it is necessary to adjourn the sitting of the court to a future day, any 1 or more of the Judges at the time appointed for such sitting, or at the time of any adjournment thereof, or the Registrar of the said court in case none of the Judges thereof are present, may adjourn or further adjourn such sitting to such future day and hour as such Judge or Judges or such Registrar think fit.

61A. Incidental orders and directions may be made and given by 1 Judge

1. In any civil appeal or in any civil proceeding before the Court of Appeal, any Judge of that court, sitting in chambers, may make such incidental orders and give such incidental directions as he thinks fit, 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.
2. Every order or direction made or given by a Judge of the Court of Appeal under subsection (1) may be discharged or varied by any Judges of that court who together have jurisdiction, in accordance with section 58A or section 58B or section 58D, as the case may be, to hear and determine the proceeding.
3. Any Judge of the Court of Appeal may review a decision of the Registrar made within the civil jurisdiction of the court under a power conferred on the Registrar by any rule of court, and may confirm, modify, or revoke that decision as he thinks fit.
4. The provisions of this section shall apply notwithstanding anything in section 58.
5. This section shall have effect from a date to be appointed by the Governor-General by Order in Council.

62. Power to remit proceedings to the High Court

The Court of Appeal shall have power to remit any proceedings in any cause pending before it to the High Court or a single Judge thereof.

63. Judgments of Court of Appeal may be enforced by the High Court

All judgments, decrees, and orders of the Court of Appeal may be enforced by the High Court as if they had been given or made by that court.

B. Civil jurisdiction

Subpart 1. Removal of proceedings from the High Court

64. Transfer of civil proceedings from High Court to Court of Appeal

1. If the circumstances of a civil proceeding pending before the High Court are exceptional, the High Court may order that the proceeding be transferred to the Court of Appeal.
2. Without limiting the generality of subsection (1), the circumstances of a proceeding may be exceptional if—
   1. a party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled by the Court of Appeal:
   2. the proceeding raises 1 or more issues of considerable public importance that need to be determined urgently, and those issues are unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal:
   3. the proceeding does not raise any question of fact or any significant question of fact, but does raise 1 or more questions of law that are the subject of conflicting decisions of the High Court.
3. In deciding whether to transfer a proceeding under subsection (1), a Judge must have regard to the following matters:
   1. the primary purpose of the Court of Appeal as an appellate court:
   2. the desirability of obtaining a determination at first instance and a review of that determination on appeal:
   3. whether a full court of the High Court could effectively determine the question in issue:
   4. whether the proceeding raises any question of fact or any significant question of fact:
   5. whether the parties have agreed to the transfer of the proceeding to the Court of Appeal:
   6. any other matter that the Judge considers that he or she should have regard to in the public interest.
4. The fact that the parties to a proceeding agree to the transfer of the proceeding to the Court of Appeal is not in itself a sufficient ground for an order transferring the proceeding.
5. If the High Court transfers a proceeding under subsection (1), the Court of Appeal has the jurisdiction of the High Court to hear and determine the proceeding.

65. Decision of Court of Appeal final as regards tribunals of New Zealand

[Repealed]

Subpart 2. Appeals from decisions of the High Court

66. Court may hear appeals from judgments and orders of the High Court

The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.

Subpart 3. Appeals from inferior courts

67. Appeals against decisions of High Court on appeal

1. The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—
   1. to the Court of Appeal; or
   2. directly to the Supreme Court (in exceptional circumstances as provided for in section 14 of the Supreme Court Act 2003).
2. An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.
3. An application under subsection (1) for leave to appeal directly to the Supreme Court must be made to the Supreme Court.
4. If leave to appeal referred to in subsection (1)(a) is obtained, the decision of the Court of Appeal on appeal from the High Court is final unless a party, on application, obtains leave to appeal against that decision to the Supreme Court.
5. Subsections (1), (3), and (4) are subject to the Supreme Court Act 2003.

68. Direct appeal from decision of inferior courts

[Repealed]

C. Criminal jurisdiction

Subpart 1. Trial at bar

69. Trial at bar

1. Where a bill of indictment has been found in the High Court, or any inquisition has been found, or any criminal information been granted against any person for any crime, if it appears to the High Court on affidavit on the part of the accused or of the prosecutor that the case is one of extraordinary importance or difficulty, and that it is desirable that it should be tried before the Judges at bar, the High Court may grant a rule nisi, and, if no sufficient cause is shown, may make the same absolute for the removal of such indictment, inquisition, or information, and the proceedings thereon, into the Court of Appeal, and for the trial of the same at bar at the next or other sitting of such Court of Appeal, and may direct that a special or common jury, as the High Court thinks fit, be summoned from such jury district as the court directs to serve upon such trial; and such proceedings, as nearly as may be, shall thereupon be had as upon a trial at bar in England.
2. The Court of Appeal shall have the same jurisdiction, authority, and power in respect thereof as the Queen’s Bench Division of the High Court of Justice has in England in respect of a trial at bar.

Subpart 2. Appeals from convictions

[Repealed]

70. Appeal from judgment of Supreme Court on conviction

[Repealed]

D. Miscellaneous

71. Rules of practice

[Repealed]

72. Appointment of officers

There may from time to time be appointed under the State Sector Act 1988 such Registrars, Deputy Registrars, and other officers as may be required for the conduct of the business of the Court of Appeal.

73. Powers and duties of officers

All such Registrars and other officers shall have in respect of the Court of Appeal such powers and duties as are prescribed by rules made under this Act.

74. Court seal

The Court of Appeal shall have in the custody of the Registrar a seal for the sealing of writs, orders, decrees, office copies, certificates, reports, and other instruments issued by such Registrar and requiring to be sealed.

75. Power to fix fees

[Repealed]