Supreme Court Jurisdiction and Practice Decisions to December 2008

Key:

• SCA = Supreme Court Act 2003
• SC Rules = Supreme Court Rules 2003
• Crimes Act = Crimes Act 1961
• HCR = High Court Rules

1.         GENERAL 

Declaration of the Supreme Court

There is no jurisdictional basis for a declaration concerning the manner in which a High Court judge handled certain aspects of proceedings, where this had no impact on the result of the proceedings.  Burke v Superintendent of Wellington Prison SC CIV 3/2004.

Direct appeals from the High Court

Where the Court of Appeal has refused leave to appeal and there is a jurisdictional bar preventing that decision from being further appealed, the Supreme Court will rarely allow that bar to be avoided by resort to a direct appeal under s 14 SCA. Save in extraordinary circumstances, an attempt to bring a direct appeal will therefore be regarded as an abuse. Burke v Western Bay of Plenty DC [2005] NZSC 46; Young v Land Transport Safety Authority [2005] NZSC 51; Clarke v R [2005] NZSC 60; Kanhai v R [2005] NZSC 25; Chatha v R [2006] NZSC 64.

An appeal against conviction to the Court of Appeal will not necessarily lead to a replication of that Court’s pre-trial conclusions. R v Ngan [2006] NZSC 41. Furthermore, it will be desirable in such circumstances for the Supreme Court to have the benefit of the Court of Appeal’s further appraisal of its earlier pre-trial ruling, in light of the completed trial. Cameron v R [2008] NZSC 59.

A “leap-frog” appeal denies the Supreme Court the benefit of the opinion of the Court of Appeal on questions of general public importance: R v Ngan [2006] NZSC 41. 

However, there may be exceptional circumstances justifying a direct appeal where an applicant can show that the Court of Appeal would likely refuse leave to appeal on a jurisdictional point not yet decided by the Supreme Court. Taylor v Jones [2006] NZSC 113.

Where the Court of Appeal has previously decided an appeal on a pre-trial application, and leave is sought to appeal the subsequent conviction on that pre-trial issue as well as other issues not considered by the Court of Appeal, it will not be appropriate for the Supreme Court to hear the appeal without having the benefit of the views of the Court of Appeal on those matters. Cameron v R [2008] NZSC 59.

Exercise of discretion

No question of general or public importance arises when there has been an entirely orthodox exercise of discretion by the High Court. Siemer v Fardell [2008] NZSC 9.

Forum for appeal which could have been re-heard in CA or heard in SC

In certain circumstances, where an appeal could be re-heard in the Court of Appeal or heard in the Supreme Court, it may be preferable for the appeal to be heard in this Court – particularly if finality on the issue can be achieved more expeditiously in this Court. Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2008] NZSC 94.

Insufficient prospect of success

Where there is insufficient prospect of success on an appeal, it will not be in the interests of justice for the Court to grant leave, nor can it be said that there is any risk of a miscarriage of justice. Hookway v R [2008] NZSC 21.

Similarly, in circumstances where the appellant’s submissions do not demonstrate an arguable basis for a successful appeal, it will not be in the interests of justice for the Court to hear the appeal. Commerce Commission v Infratil Ltd [2008] NZSC 73.

Interlocutory appeals

This Court will not readily interfere with the Court of Appeal’s discretionary decision on an interlocutory application – not least because, absent a serious departure from established and unchallenged principles, the s 13 criteria are highly unlikely to be met. Bevan-Smith v Raupo Publishing (NZ) Ltd [2008] NZSC 22. More specifically, this Court will entertain appeals against judgments of the Court of Appeal refusing strike-outs, and thus allowing the proceedings to continue, only in compelling circumstances. New Zealand Exchange Ltd v Bank of New Zealand [2008] NZSC 54.

Mootness

Whether the Court should hear an appeal which meets the criteria for leave, but is moot, is a matter of judicial policy and discretion. The general rule is that the Court will not hear an appeal when the decision will have no practical effect on the rights of parties before the Court. In some cases, however, an exception from the general rule will be warranted: if the issue involves a public authority and deals with a question of public law, an exception will be justified; the same is true of analogous issues. Similarly, if the question arising in a moot case is one of significant public importance which is highly likely to come before the Court again at some point, an exception will be justified. Care must be taken, however, to ensure that the answer to a proposed abstract question of law will not be too fact-dependent to provide any useful guidance. Gordon-Smith v R [2008] NZSC 56.

Repealed statutory provisions

The interpretation of a statutory provision that has been repealed and not replaced, or replaced by a materially different provision, may not raise a point of general or public importance. Warnock v Ministry of Social Development [2006] NZSC 45; Allison v R [2005] NZSC 84.

Rehearing of leave application

It will be only in rare circumstances that the Court will accede to an application to reconsider granting leave for the advancing of a ground which the Court has previously concluded does not meet the criteria in s 13 of the SCA 2004. Wong v R [2008] NZSC 5; Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2008] NZSC 94.

Settled law applied to particular facts

No matter of general or public importance arises from “the application of well established principles”, or a legal test that is broadly agreed on, to particular facts of a case, particularly where the question of law determined by the Court of Appeal is expressly limited to “all the circumstances of the case”. The objective assessment of the time, place and circumstances in issue will not be appropriate for further appeal. See for example Rowe v R [2005] NZSC 40; T v R [2006] NZSC 27; Udompun v Minister of Immigration & NZ Police [2006] NZSC 1; Buchanan v Chief Executive of the Department of Inland Revenue [2006] NZSC 37; Young v R [2006] NZSC 38.

Single Judge in Court of Appeal

A decision of a single Judge in the Court of Appeal is, in terms of s 7 of SCA 2003, “[a] decision made in the proceeding” and thus amenable to an appeal, by leave, to the Supreme Court. Bronwyn Estate Ltd v Hoole [2008] NZSC 1.

Statutory authority for decision incorrect

A lower court invoking the wrong statutory authority for a decision that would clearly have been the same had the correct authority been identified does not give rise to a miscarriage of justice in terms of s 13 SCA. Thompson v R [2005] NZSC 58.

Supreme Court has no original jurisdiction

When the subject matter of the application for leave has never been and could not have been before the High Court – for example, when an Act in respect of which relief is now sought has been enacted since the High Court judgment – the applicant effectively seeks to bring a new case directly to the Supreme Court.  The Supreme Court is established by statute and, like the Court of Appeal, has no original jurisdiction. The appropriate place to commence such a proceeding is in the High Court, which has a general jurisdiction. Taunoa v A-G [2006] NZSC 95; Belcher v Chief Executive of the Department of Corrections [2007] NZSC 54.

Unusual or unique facts

Where the circumstances of the case are highly unusual, complex or unique, their singularity may leave no room for the applicant to contend that the appeal involves a matter of general or public importance or general commercial significance. See for example Portage Licensing Trust v Avondale Hotel No 1 Ltd [2006] NZSC 5; Imms v Gunson [2006] NZSC 24; Mafart v TVNZ [2006] NZSC 78; Southbourne Investments Ltd v Greenmount Manufacturing Ltd [2007] NZSC 24; Bhanabhai v CIR [2007] NZSC 25.

2.         CRIMINAL

Bail

An appeal to the Supreme Court in a proceeding under the Bail Act 2000 must be dealt with as a civil proceeding under s 7 SCA. Greer v R [2006] NZSC 76.

A convicted person, having chosen to appeal to the Court of Appeal against conviction or sentence, or both, cannot appeal directly to the Supreme Court on the question of bail.  But s 70(2) Bail Act should not be read as denying a right of appeal to the Supreme Court against a refusal of the Court of Appeal to grant bail. Greer v R [2006] NZSC 76.

Case stated

It is not open to the Supreme Court to address matters which do not form part of the case stated.  A prosecutor has no general right of appeal, only an appeal by way of a case stated on a question of law.  The appellate court’s consideration is confined to that question of law. Bicknell v Tauranga District Court and Caverhill [2006] NZSC 106.

Co-Appellants

The fact that the Court of Appeal allowed one co-appellant’s appeal does not give rise to any inconsistency or miscarriage of justice if that Court merely considered the evidence sufficient in one case and insufficient in another: Mankelow v R [2007] NZSC 57.

Court of Appeal – refusal of leave to appeal

A decision of the Court of Appeal refusing leave or special leave to appeal to it is not a decision “on an appeal” under s 144A(1)(c) Summary Proceedings Act 1957. Simpson v Kawerau District Council SC CRI 13/2004; Clarke v R [2005] NZSC 60.

Court of Appeal – refusal to permit applicant to withdraw notice of abandonment

There is no jurisdiction to hear an appeal against the Court of Appeal’s refusal to permit the applicant to withdraw a notice of abandonment.  That is not a decision of the Court of Appeal “on appeal” within s 383A Crimes Act. The expression “on appeal” is materially the same as the expression “on an appeal” in s 144A Summary Proceedings Act 1957. Palmer v R SC CRI 13/2004.

Court of Appeal – refusal to reopen appeal decision

There is no jurisdiction to hear an appeal against Court of Appeal’s refusal to reopen an appeal.  That is not a decision of the Court of Appeal “on appeal” within s 383A Crimes Act. De Mey v R [2005] NZSC 27.

Delay

The applicant must ordinarily demonstrate a compelling case for the grant of leave after an inexcusable delay (for example, 17 months) following the Court of Appeal judgment. Maney v R [2007] NZSC 28.

New grounds raised in leave application

A second appeal may be brought on grounds not raised in the Court of Appeal only where the Supreme Court is convinced that there is a real possibility that it could be demonstrated with reference to those grounds that there had been a miscarriage of justice at trial which went uncorrected on first appeal. Pavitt v R [2005] NZSC 24; Kanhai v R [2005] NZSC 25; Allison v R [2005] NZSC 84; Al Baiiaty v R [2005] NZSC 85.

Pre-trial applications

Where a pre-trial application, purportedly brought under s 344A Crimes Act, does not in substance concern admissibility of evidence, the proposed “leap-frog” appeal will not be authorised by s 379A(1)(aa) Crimes Act, and the Supreme Court will, in the absence of another empowering provision, lack jurisdiction under s 10 SCA. McGrath and Forde v R [2005] NZSC 50. 

Remitting proceedings to Court of Appeal

Where the Court of Appeal has found it unnecessary to consider an alternative argument advanced on appeal, but the argument becomes live as a consequence of the result in the Supreme Court, there is power under s 26 SCA to remit the case to the Court of Appeal for consideration of the alternative argument. Mist v R [2005] NZSC 77; see L v R [2006] NZSC 18.

Second appeal

This Court will not conduct a “second general appeal” if nothing has been raised to suggest that a substantial miscarriage of justice might occur if the Court does not entertain the appeal: Mankelow v R [2007] NZSC 57; Burns v R [2008] NZSC 13. It is not the role of this Court to embark upon a review of the strength of evidence when the Court of Appeal has already given the issues careful consideration. Burgess v R [2008] NZSC 79.

Sentence appeals

The application of well-established sentencing principle to the particular circumstances of an individual case will not be a matter of general or public importance. Pue v R [2005] NZSC 55.

In particular, where a sentence has been reviewed in the Court of Appeal, no question of general sentencing principle is raised and there is no appearance of a substantial miscarriage of justice, it will not be in the interests of justice for the Supreme Court to hear the appeal. Emirali v R [2007] NZSC 29.

Appeals against the nature or length of a sentence will only infrequently raise a question of general principle suitable for a second appeal. There is no automatic right to second appeal because the sentence was imposed on first appeal by the Court of Appeal: Mist v R [2005] NZSC 29.

It is not sufficient to contend that a substantial miscarriage of justice may occur if the sentence is not reviewed. The approach of the Supreme Court to leave criteria is substantially the same as that in respect of second appeals in other Commonwealth jurisdictions. Trotter v R SC CRI 18/2004.

If an appeal by a convicted person against a decision of the Court of Appeal on an appeal, under s 383 Crimes Act, against a sentence of detention is not heard before the date on which the convicted person has completed serving the sentence, on that date the sentence appeal lapses and must be treated as having been dismissed by the Supreme Court for non-prosecution: s 383A(3) Crimes Act.  A convicted person cannot avoid the bar in s 383A(3) by appealing against both conviction and sentence in one appeal, as contemplated by s 383(1).  However, the bar does not apply if the appeal under s 383 is, by leave, directly to the Supreme Court. Condon v R [2006] NZSC 62.

The Court of Appeal is the Court with the principal responsibility for keeping sentence levels under review, and the Supreme Court will not grant leave where an applicant seeks revision of a sentencing guideline judgment and such revision was not raised and considered in the Court of Appeal. McGregor v R [2008] NZSC 10. Furthermore,  it would be inappropriate for the Court to review a guideline judgment where that judgment will likely be subject to revision by the newly established Sentencing Council. McGregor v R [2008] NZSC 10; Tandy v R [2008] NZSC 8.

Systemic challenges

The jurisdiction of the Supreme Court is not invoked where an application for leave challenges the policy of legislation without suggesting that public actors are exceeding their legislative mandate or that an alternative interpretation of the legislation is open to the Court. Manawatu v R [2007] NZSC 13.

Variation or amendment of indictment

The Supreme Court, having all the powers of the Court of Appeal, can amend the indictment to make it conformable with the proof pursuant to s 335 of the Crimes Act. To ensure that the accused is not prejudiced in his or her defence, the Court will only do so where the evidence to prove all the elements of the substituted charge – including any mental element – was necessarily comprehended by the Crown case. Walsh v R [2006] NZSC 111.

3.         CIVIL

Additional grounds of appeal

There are strong policy reasons for taking a restrictive approach to applications that seek to alter the basis of the case a party presented at trial.  It is ordinarily outside the scope of the statutory direction to proceed by way of rehearing (s 24 SCA) to allow a party to put up a new case on which fresh evidence has to be called. Even if such an application is treated as equivalent to an application for a new trial under r 494(3)(e) HCR, the evidence underpinning the new case must not have been able to be obtained with reasonable diligence for use at the trial. Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 1.

Admission of further evidence

Seeking leave under r 40 SC Rules without directly impugning the Court of Appeal’s order declining to admit further evidence amounts in effect to asking the Supreme Court to exercise the discretion afresh.  This is an inappropriate collateral challenge  to the Court of Appeal’s discretionary order and an abuse of process.  Rule 40 is focused on evidence that is genuinely new in the Supreme Court.  That the purpose of the evidence may be different in the Supreme Court from its intended purpose in the Court of Appeal does not make any material difference. Where there is a ruling of a court of competent jurisdiction to the effect that it is not in the interests of justice to admit the evidence the Supreme Court should not be invited to take a different view, save by the normal process of challenge: that is, by appeal. Aotearoa International Limited v Paper Reclaim Limited [2006] NZSC 59.

A party will not be permitted to present evidence to the Supreme Court that directly contradicts extensive evidence given on its behalf at trial, where the authenticity of that evidence cannot properly be resolved within the appropriate bounds of the appellate process and where there is no real explanation for the failure to refer to it at trial. Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 1.

Concession in courts below

It is only rarely and with extreme caution that on a second appeal the Supreme Court will allow a point to be raised which has been conceded below, and it should not do so if there is any possibility that the outcome might have been affected if the point had been taken earlier.  The applicant must also persuade the Supreme Court beyond doubt that the Court has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial. Otago Station Estates Ltd v Parker [2005] NZSC 16.

Court of Appeal – refusal of leave to appeal

There is no jurisdiction under s 7(b) SCA to hear an appeal against the Court of Appeal’s refusal of special leave to appeal, and accordingly no basis for reviewing a decision by the Registrar not to accept such an application for filing. No logical distinction can be made between cases where leave or special leave is required on a substantive basis and cases where leave or special leave is required for time reasons.  Jew v Schroder SC CIV 1/2004; Collingwood v Ministry of Internal Affairs SC CIV 15/2004; Erwood v Harley [2007] NZSC 4; Sexton v Craig [2007] NZSC 47.

Court of Appeal – refusal to grant application for extension of time

The Supreme Court has jurisdiction to grant leave to appeal from a decision of the Court of Appeal to refuse an extension of time to apply for the allocation of a hearing date and file the case on appeal (s 7(b) SCA does not apply). However, the s 13 SCA criteria must still be met. Erwood v Maxted [2007] NZSC 38.

Court of Appeal – refusal to recall judgment refusing leave to appeal

There is no jurisdiction under s 7(b) SCA to hear an appeal against the Court of Appeal’s refusal to recall a civil judgment refusing special leave to appeal. Ngahuia Reihana Whanau Trust v Flight SC CIV 20/2004.

Court of Appeal undoubtedly correct

Leave to appeal will not be granted where the Court of Appeal decision, particularly on an essentially factual issue, is, even on the view of the facts and law most favourable to the applicant, undoubtedly correct.  See for example Sharma v Cameron [2005] NZSC 70; Whangamata Homes Ltd v Jansen [2005] NZSC 71; Prasad v Chief Executive of the Ministry of Social Development [2006] NZSC 26; Prime Commercial Ltd v Wool Board Disestablishment Co Ltd [2007] NZSC 9.

Extension of time

While Rule 11(4) of the SC Rules 2004 allows for an extension of the 20 working day period within which an intending appellant must apply for leave to appeal, this Court will not grant such an extension lightly. The intending appellant must show that in all the circumstances the interests of justice favour granting leave. The facts relied on to support the application for an extension of time should be supported by affidavit. The possibility of prejudice to the respondent will be relevant: Campbell Robert Thom v Davys Burton [2007] NZSC 107.

Failure to appear as respondent or make submissions in Court of Appeal

An applicant, seeking to raise new points on a second appeal to the Supreme Court, that has failed to take the steps required to put the points in issue in the Court of Appeal or even to appear on its own behalf as a respondent in that Court is in a similar position to an applicant seeking leave from the Supreme Court to raise a new point deliberately not raised in the lower courts.  The Supreme Court would only give leave in such a case rarely and with extreme caution. Otago Station Estates Ltd v Parker & Ors [2005] NZSC 16; Ellerslie Park Holdings Ltd v A-G [2006] NZSC 44.

Family Court – direct appeal

There is no apparent statutory provision that provides for an appeal directly from the Family Court to the Supreme Court. Haggie v Haggie [2006] NZSC 32.

General Commercial Significance

A leave application which relies on the ground of general commercial significance under s 13(2)(c) of the SCA must establish something more than commercial significance for the parties inter se. The application must have general commercial significance in the sense that it has precedential value, so that “a judgment of [the Supreme] Court might give guidance to other litigants in future cases”. Shell (Petroleum Mining) Company Ltd v Todd Petroleum Mining Company Ltd [2008] NZSC 26.

Habeas corpus

Resort to habeas corpus proceedings in a custody case necessitates a different approach to appeals. Section 16 of the Habeas Corpus Act 2001 does not preclude an appeal (under s 7 or s 8 of the SCA) from a final determination ordering release of a person from detention where the detained person is a child under the age of 16 years whose custody is in dispute. It is immaterial that the arguments on the appeal do not relate directly to the arrangements for the child’s lawful custody or care. Taylor v Jones [2006] NZSC 113.

Hearings in private

An application for leave to appeal under the SCA, rather than under the Property (Relationships) Act 1976, precludes a request under the latter Act for the proceedings in the Supreme Court to be heard in private. B v M [2006] NZSC 86.

Interveners

It may be desirable for the Supreme Court to have the assistance of professional bodies on matters of law and legal policy that are of direct interest to the bodies’ members.  Leave to intervene may be granted on the condition that the interveners will not be entitled to costs should the appeal succeed. A request that the appellant and interveners be required to pay the respondents’ indemnity costs irrespective of the outcome of the appeal may be meritless in the circumstances of the case. Chamberlains v Lai [2005] NZSC 32.

Matters of weight and discretion

The interests of justice do not require a further appeal in an application for review of an administrative decision where the issues are not really directed to matters which are or are not to be taken into account but to the weight to be accorded to them. A-G v TVNZ SC CIV 14/2004. See the unsuccessful application for leave to cross-appeal on the basis of misuse of discretion by the trial Judge in Reid v R [2007] NZSC 35.

Similarly, the requirements of s 13 SCA are not satisfied in an appeal against a Court of Appeal decision upholding the High Court’s refusal to grant confidentiality orders where the issues raised by the applicant go to the exercise of a discretion and are directed only to matters of weight. Muir v Commissioner of Inland Revenue SC CIV 18/2004.

The Supreme Court will not be prepared to grant special leave to appeal against discretionary procedural decisions in the course of trial, especially those that raise no issue of general or public importance. Bicknell v Tauranga District Court and Caverhill [2006] NZSC 106.

The costs jurisdiction is discretionary, but not unprincipled, and is to be exercised generally in accordance with rr 47 – 48G of the High Court Rules. An appellate court should not interfere with a costs order unless satisfied that the Judge who made the order acted on a wrong principle, or failed to take into account some relevant matter, or took account of some irrelevant matter, or was plainly wrong. Shirley v Wairarapa District Health Board [2006] NZSC 63.

Miscarriage of justice in civil cases

The miscarriage of justice ground is of limited application in civil cases.  It is not the role of a final appellate court to embark on a further exercise of error correction. The miscarriage ground must be taken to have been intended to enable the Court to review the decision of the Court of Appeal on questions of fact, or on questions of law which are not of general or public importance, in the rare case of a sufficiently apparent error, made or left uncorrected by the Court of Appeal, of such substantial character that it would be repugnant to justice to allow it to go uncorrected in the particular case. Junior Farms Limited v Hampton Securities Limited and Accent Management Limited [2006] NZSC 60. In other words, the error in the Court of Appeal judgment must be “so patent and so significant as to give rise to a miscarriage of justice in the context of a civil appeal.” Shell (Petroleum Mining) Company Ltd v Todd Petroleum Mining Company Ltd [2008] NZSC 26.

New argument raised for first time at substantive oral hearing

It is unsatisfactory that a new argument should emerge only at the substantive oral hearing, but if the argument is directed to the interpretation of a statute, the Court cannot properly decline to consider it.  Counsel for the other party will normally be afforded the opportunity to supplement their oral submissions with a further written submission after the hearing. Telecom Mobile Ltd v Commerce Commission [2006] NZSC 17.

Outstanding factual issues

The Supreme Court may send an issue back to a specialist tribunal for consideration where its resolution may turn on questions of specialist factual judgement or where the relevant facts have not yet been properly investigated. Dr C v Complaints Assessment Committee [2006] NZSC 48; Waitakere City Council v Estate Homes Ltd [2006] NZSC 112.