Appellate courts

Contents

Supreme Court | Te Kōti Mana Nui

The Supreme Court is New Zealand’s apex court – the highest court in the country. It has the role of maintaining overall coherence in the legal system. The principles expressed in Supreme Court decisions are binding on all courts in New Zealand. Each decision, therefore, has an impact far beyond the parties directly affected by the decision.

This year marked 20 years since the creation of the Supreme Court of New Zealand. In 2004 the Supreme Court replaced the Judicial Committee of the Privy Council as New Zealand’s highest court of appeal (see below). The Supreme Court has a broad appellate jurisdiction and hears appeals spanning contract, criminal, employment, family, resource management, torts and intellectual property law. Unlike apex courts in other countries, the Court cannot invalidate legislation, but like the High Court and Court of Appeal, it can issue a declaration of inconsistency, where it finds a law or part of a law is inconsistent with one of the fundamental rights protected under the New Zealand Bill of Rights Act 1990.[42]

Appeals to the Supreme Court can be heard only with the leave of the Court.[43] To grant leave to appeal, the Court must be satisfied that hearing an appeal is in the interests of justice. That is, if it involves a matter of general or public importance; if a substantial miscarriage of justice may have occurred or may occur unless the appeal is heard; or if the appeal involves a matter of general commercial significance.[44]

The Court allocates 19 sitting weeks per year, divided into three terms (the Waitangi term, the Matariki term and the Kōanga term). The periods between these terms enable judges to complete their judgments.

There are six permanent judges of the Supreme Court. A panel of five judges is required to hear a substantive appeal – the odd number ensures that the Court reaches a majority decision. In the event that more than one permanent judge is unable to sit for any reason, an acting judge (a former judge of the Supreme Court or a sitting Court of Appeal judge) may serve as a member of an appeal panel.

In almost all cases, an appeal to the Supreme Court will involve a case that has already been considered by the Court of Appeal. However, the Court does, in exceptional cases, hear “leapfrog” appeals directly from other lower Courts.

Given its significance, it is important that the work of the Supreme Court is readily available and accessible. The Court takes a proactive approach to increasing the transparency of the Court’s work to ensure that public confidence in the justice system is maintained. Initiatives designed to increase the transparency of the Court’s work include livestreaming of appeal hearings, publication of substantive appeal submissions online, engagement with an educational outreach programme with university law schools (see below) and holding annual sitting weeks in Auckland and Christchurch. These initiatives are described further in Part 4.

Celebrating 20 years of the Supreme Court
The Supreme Court was established by the Supreme Court Act 2003 to recognise New Zealand as an independent nation with its own history and traditions, to improve access to justice and to enable important legal matters, including those relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions.[45]

Before the establishment of the Supreme Court, New Zealand’s highest court of appeal was the Judicial Committee of the Privy Council, which was located in London. It dealt with a small number of appeals. The idea to abolish appeals to the Privy Council and establish a final court of appeal within New Zealand had been considered for over a century – first proposed by Chief Justice Sir Robert Stout.

The first hearing in the Supreme Court took place in July 2004, some seven years before the current courthouse opened. The Court initially sat in a cramped makeshift courtroom in the basement of the current Wellington High Court. Court legend has it that the registrar bought a goldfish tank in an attempt to dispel the gloom.

To mark the occasion of the 20th anniversary of the Court, Auckland University Law School, in conjunction with the Legal Research Foundation, hosted a two-day conference in February. The Chief Justice and Justice Forrest Miller delivered papers at the conference, along with members of the profession and the academy.

In her address, the Chief Justice noted that the Court has proved better placed than the Privy Council to provide systemic oversight of the rule of law both by reason of the greater volume of proceedings it engages with – including leave applications – and, because of the judges’ proximity and understanding of the New Zealand legal and social context.

Significant Supreme Court decisions from 2024
Some significant decisions from 2024 were:

Whakatōhea Kotahitanga Waka (Edwards) v Ngāti Ira o Waioweka [2024] NZSC 164
- Claims to customary rights in the harbours, river mouths, beaches, and seascape of the eastern Bay of Plenty addressing the interpretation of the Marine and Coastal Area (Takutai Moana) Act 2011.
Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5
- Whether carbon-emitting large companies could be liable in tort for damage caused by climate change.
A, B and C v D and E Limited as Trustees of the Z Trust [2024] NZSC 161
- Whether, and in what circumstances, the relationship between a parent and their children will be recognised as fiduciary.
Cooper v Pinney [2024] NZSC 181
- What rights or powers in respect of assets in a family trust can properly be treated as “property” falling within the ambit of the Property (Relationships) Act 1976.
Attorney-General v Chisnall [2024] NZSC 178
- Whether the extended supervision order and public protection order regimes are inconsistent with the New Zealand Bill of Rights Act 1990.

Inspiring the next generation of lawyers
The Supreme Court’s engagement programme with law students is designed to foster a deeper understanding of the judicial system and provide inspiration and information to future legal professionals. Through this programme, law students are given the opportunity to observe court proceedings at the Court’s home base in Wellington, or when the Court travels to Auckland or Christchurch. The students participate in a question-and-answer session with the Supreme Court judges and senior legal counsel, and then have an opportunity to talk with the judges over afternoon tea in the court. The programme underscores the Supreme Court’s commitment to education, transparency and its role in promoting a career in the law to the next generation.

Supreme Court statistics

Court of Appeal | Te Kōti Pīra

The Court of Appeal is New Zealand’s intermediate appellate court. The Court of Appeal has a key role in developing legal principle, correcting errors, and ensuring that the law is applied consistently.

The Court hears appeals from the civil and criminal cases heard in the High Court and appeals from criminal jury trials in the District Court. In addition, matters appealed to the High Court from the District Court and certain tribunals may be taken to the Court of Appeal with leave if they are of sufficient significance to warrant a second appeal. The Court may hear appeals against pre-trial rulings in criminal cases.

The Court can also hear appeals on questions of law from the Employment Court and appeals from the Māori Appellate Court and Court Martial Appeal Court. The Court ordinarily sits with a panel of three judges.

The Court’s principal responsibility is to correct errors in conviction and sentence appeals.

Because of the volume of appeals it hears, the Court of Appeal also has primary responsibility for direction and consistency in the delivery of criminal justice. The Court may issue guideline judgments to provide general direction for sentencing for certain categories of criminal offending.

The Court’s workload remains at a historic high, particularly in the civil jurisdiction. It delivered 701 judgments in 2024, up from 672 in 2023.

The Court of Appeal has 10 permanent judges, but this number is supplemented by approximately 20 High Court judges who each sit as divisional members for up to four weeks a year, bringing current criminal trial experience to the Court. Acting judges provide additional capacity.

The Court sits year-round in Wellington and Auckland. The Court also sat twice in Christchurch and once in Dunedin as part of its divisional sitting programme.

Court of Appeal Bench appointments and retirements
There were a number of retirements from the Court of Appeal this year: Justice Mark Cooper retired as President of the Court, after serving as a Judge of the Court of Appeal for 10 years, and President for two and a half years. Justices Brendan Brown, David Collins, Murray Gilbert and David Goddard also retired.

As a consequence, a number of new appointments were made: Justice Christine French was appointed as President of the Court of Appeal. Justices Rebecca Ellis, Francis Cooke, Matthew Palmer, Neil Campbell, and Christian Whata were appointed to the bench, and Justices David Collins and Anne Hinton were appointed as acting Judges to assist the Court with its workload.

Criminal rules
The Rules Committee continued work to introduce the Court of Appeal (Criminal) Rules (which will replace the 2001 Criminal Rules). Work will continue in 2025.

Court of Appeal statistics

High Court | Te Kōti Matua— Appellate jurisdiction

The High Court hears criminal appeals from judge-alone trials in the District Court and Youth Court. It does not hear appeals from District Court jury trials – these are heard in the Court of Appeal. It hears civil appeals from the District Court, the Family Court, the Youth Court and the Environment Court as well as appeals from many administrative tribunals and regulatory bodies. All High Court judges can, and do, hear appeals.

The number of criminal appeals lodged in the High Court is currently very high. There were 1,913 new appeals lodged with the Court this year, compared to 1,688 in 2023 (a 13 per cent increase). There was a corresponding rise in the number of disposals of appeals – 1,899 this year compared to 1,715 in 2023 (an 11 per cent increase).

District Court | Te Kōti-Ā- Rohe—Appellate jurisdiction

The District Court hears appeals from a wide range of administrative tribunals and regulatory bodies, including the Disputes Tribunal, Tenancy Tribunal and Motor Vehicle Disputes Tribunal.

Employment Court | Te Kōti Take Mahi

The Employment Court hears appeals from the Employment Relations Authority. Where an appeal raises an important issue, it will generally be heard by a full court sitting with three or more judges. There are limited rights of appeal to the Court of Appeal and beyond that, to the Supreme Court.

Te Kooti Pīra Māori | Māori Appellate Court

Te Kooti Pīra Māori | Māori Appellate Court was established in 1894 as the appellate body for all decisions of the Māori Land Court. The Appellate Court bench is made up of the judges of the Māori Land Court, sitting in panels of three or more judges to hear appeals. Māori Appellate Court sittings are held quarterly, with judges sitting in different panels (appointed by the Chief Judge and Deputy Chief Judge of the Māori Land Court) to hear all appeals filed with the Appellate Court in the previous three-month period. Each appeal is heard in the region to which it relates.

The Māori Appellate Court generally hears between 20 and 30 appeals per year. Māori Appellate Court judgments may be appealed to the Court of Appeal.

Military justice appeals | Te Kōti Whakawā Kaimahi o Te Ope Kātua

New Zealand has a parallel military justice system. The Court Martial is a specialist court of record that hears cases of serious offending and breaches of military discipline by members of the Armed Forces, and, in rare cases, other persons closely associated with their operations. All its judges are civilians and sit with a panel of military members who are the deciders of fact (see below).

Although the Court Martial is part of the system of military justice, at the appellate level its appeals come into the civilian court system and are therefore included in this report.

The Court Martial Appeal Court | Te Kōti Pīra Whakawā Kaimahi o te Ope Kātua hears appeals from the Court Martial. The Court Martial Appeal Court is summoned by the Chief High Court Judge and consists of current High Court judges and appointed judges (who are either barristers or retired High Court judges). Appointed judges are civilians, but to date have also had previous military experience.

The Court Martial Appeal Court has jurisdiction to determine all questions necessary for the purpose of doing justice in any case before it. Like the Court Martial, the Court Martial Appeal Court hears cases involving offences committed anywhere in the world and may sit in any location in New Zealand or overseas as required. This court can also hear any other case from the Court Martial by special reference from the Judge Advocate General or from the Minister of Defence. The court sits with at least three judges, at least one of which must be an appointed judge. Parties have a further appeal avenue (by leave) to the Court of Appeal and Supreme Court.

The Court Martial
The Court Martial has jurisdiction to hear charges alleging offences against both military and criminal law committed anywhere in the world. Its powers of punishment are equivalent to those of the High Court but include unique sentences, such as detention in the Services Corrective Establishment or dismissal from His Majesty’s Service. The Court Martial has adopted the principles of Te Ao Mārama from the District Court in its proceedings. Appeals from the Court Martial are heard by the Court Martial Appeal Court, and above that by leave to the Court of Appeal or Supreme Court.

Less serious offending is tried before disciplinary officers (who are not judicial officers). Appeals against the findings, punishment, or orders of disciplinary officers are heard in another military court – the Summary Appeal Court | Te Kōti Whakawā Pīra Whakaraupapa Kaimahi o te Ope Kātua. All judges of the Court Martial are also judges of the Summary Appeal Court. Cases are heard by a single judge sitting alone. There is no further right of appeal from the Summary Appeal Court.

Previous section: Civil justice

Next section: Access to justice

Footnotes

[42] This year, the Supreme Court delivered the judgment Attorney-General and Anor v Mark David Chisnall [2024] NZSC 178, which indicated the court would issue a declaration of inconsistency regarding aspects of the extended supervision order regime and the entirety of the public protection order regime.

[43] Leave decisions are usually made by a panel of three judges.

[44] Senior Courts Act 2016, s 74.

[45] Supreme Court Act 2003, s 3.