History and role
The Court of Appeal has existed since 1862. Before the establishment of the Court of Appeal, appeals from the High Court (then known as the Supreme Court) were heard by the Governor and members of the Executive Council. This was a temporary measure until there were sufficient judges to constitute an appellate court. By 1860, the Supreme Court bench was large enough to sustain a court of appeal, but not large enough to provide a permanent court of appeal. In 1862, the Court of Appeal consisted of judges of the Supreme Court on a rotating basis. The Court initially sat in Christchurch and Dunedin and then moved to Wellington in 1865. 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 three specifically appointed Court of Appeal judges.
Before the current 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. The number of permanent Court members has risen as the volume and complexity of litigation and appeals has increased. Today the court consists of the President and nine other judges.
The Court of Appeal is located in Wellington but also sits in Auckland, Christchurch and Dunedin.
The Court of Appeal deals with civil and criminal appeals from matters heard in the High Court and serious criminal matters from the District Court. Matters appealed to the High Court from the District Court and certain tribunals can be appealed 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 on questions of law from the Employment Court.
The Court of Appeal (Civil) Rules 2005 set out the procedural requirements for pursuing civil appeals. The Court of Appeal (Criminal) Rules set out the procedural requirements for pursuing criminal appeals. The Crimes Act 1961 and the Criminal Procedure Act 2011 also contain both substantive and procedural provisions relevant to criminal appeals to the Court of Appeal.
The Court of Appeal has a key role in developing legal principle, error correction and ensuring consistency in lower court determinations. 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 sits as a Full Court in panels of five Judges to hear matters of exceptional importance. This seldom happens more than twice a year. All other Permanent Court appeals are heard by panels of three Court of Appeal Judges. In order to assist with the heavy workload of the Court, it sits in divisions to deal with routine appeals, as authorised by ss 47 and 48 Senior Courts Act 2016. Criminal appeals are allocated to a Divisional Court unless the President directs otherwise. Divisional Court panels consist of one permanent Court of Appeal Judge and two High Court Judges. This also recognises the insights which Judges with current trial experience bring to appeals.
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 other Court of Appeal Judges. Amongst themselves Court of Appeal judges have seniority according to the date of their appointment. Court of Appeal judges are also High Court judges.
- Spiller, New Zealand Court of Appeal 1958-1996: A History (2002)
- Spiller, Finn & Boast, A New Zealand Legal History (2 nd Ed.) (2001)
- Report of the Royal Commission on Courts , 1978
- The Laws of New Zealand, Reissue 1 (2004)