History and role
The Court of Appeal has existed since 1862.
Before its establishment, appeals from the then Supreme Court (now the High Court) were taken to the Privy Council in London. This however was beyond the financial reach of many people.
The Court of Appeal was first set up because of the inconvenience and expense of taking appeals to the Privy Council. While the need to have an appeal court was compelling, the difficulty in the mid-nineteenth century was the very small number of judicial officers in New Zealand, which made it impossible to provide a local court of appeal. In 1862 the Court of Appeal consisted of judges of the Supreme Court on a rotating basis.
The increase in the court’s workload and the practical difficulties of Supreme Court judges making themselves available for appellate work, resulted in the call for a permanent court of appeal.
In 1957 the permanent Court of Appeal was established in Wellington with specifically appointed Court of Appeal judges.
Before the Supreme Court was established, the Chief Justice was a member of the Court of Appeal by virtue of office, but the permanent complement of the court comprised the President and six permanent members. Today the court consists of the President and nine other judges.
The Court of Appeal deals with civil and criminal appeals from matters heard in the High Court, and serious criminal charges from the district courts. Matters appealed to the High Court from district courts and certain tribunals can be taken to the Court of Appeal with leave, if a second 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.
Before the Supreme Court was established, civil decisions of the court on first appeal from the High Court could in general be appealed to the Judicial Committee of the Privy Council, in some cases as of right, and in others with the leave either of the Court of Appeal or the Committee. Appeals in cases heard after 1 January 2004 lie to the Supreme Court with the leave of that Court. Savings provisions in the Supreme Court Act 2003 leave appellants whose appeals were heard by the Court of Appeal before January 2004 with whatever rights they had under the Privy Council.
The Court of Appeal has a critical role in developing legal principle and maintaining consistency in the application of the law. It supervises through appeal the judgments of the High Court and ensures consistent application of the law in the High Court.
The role and workload of the Court of Appeal has not diminished with the establishment of the Supreme Court. The small number of cases likely to reach the Supreme Court means the Court of Appeal will continue to have a key role in error correction, ensuring consistency in lower court determinations and developing aspects of the law.
It is important for the Supreme Court and for the development of New Zealand law that the Court of Appeal continues to be a strong court capable of maintaining public confidence.
As noted in the Law Commission Report 85 Delivering Justice For All , ‘the establishment of the Supreme Court was not intended to supplant the role of the Court of Appeal. A strong, intermediate appellate court at this level is essential for the health of the court system. In practical terms, the Court of Appeal will continue to be New Zealand’s principal appellate court, and for most litigated cases it will in effect be the final appellate court’.
The court consists of the President of the Court of Appeal who presides in that court and nine other judges.
In order to assist with the heavy workload of the Court of Appeal, it sits in divisions to deal with routine appeals, as authorised by the Judicature Act. The Civil and Criminal Appeals Divisions consist of one judge of the Court of Appeal together with two High Court judges nominated by the Chief Justice.
The court sits as a full court (consisting of five permanent Court of Appeal judges) to consider the most significant cases.
The judges of the Court of Appeal have seniority over all the judges of the High Court, except the Chief Justice and the other judges of the Supreme Court. The President of the Court of Appeal has seniority over the other Court of Appeal judges. Amongst themselves Court of Appeal judges have seniority according to the date of their appointment. Like all superior court judges (Supreme Court, Court of Appeal, High Court judges), Court of Appeal judges are also High Court judges.
The Court of Appeal is located in Wellington but also sits regularly in Auckland and Christchurch.
If the Chief Justice is unavailable to be the Administrator of the Government, the next most senior available Supreme Court Judge will be authorised to perform this function.
- Spiller, New Zealand Court of Appeal 1958-1996: A History (2002)
- Spiller, Finn & Boast, A New Zealand Legal History (2nd Edn) (2001)
- Report of the Royal Commission on the Courts, 1978
- The Laws of New Zealand, Courts Reissue 1 (2004)