| |
|
Reshaping New Zealand's Appeal Structure
Discussion Paper
Hon Margaret Wilson Attorney-General
December 2000
- Taking a principled approach: Options
- A set of guiding principles has been developed to assist the discussion about appeals to the Privy Council and reshaping the appeal structure. These principles are discussed in Appendix One and in summary are:
- recognising the Court of Appeal as New Zealand's final appellate court;
- promoting reflective development of the law;
- recognising Maori values and the interests of Maori under the Treaty of Waitangi;
- reflecting the nature of New Zealand society;
- economic viability;
- meeting the needs of the community;
- maintaining the independence of the judiciary;
- the effective use of resources;
- simplicity;
- efficient administration;
- access to justice.
- These principles should be considered when discussing the options for reform set out in this section.
Option One: One level of appeal to the Court of Appeal
- The first option is simply to enact legislation that removes all rights of appeal to the Privy Council. The legislation would make the Court of Appeal New Zealand's final appeal court. In effect the structure of the New Zealand courts would not change. The Court of Appeal, as the final appeal court would decide whether cases are heard by a panel of five permanent judges or a division of three judges. In the latter, one or two judges could be High Court Judges appointed to sit on the divisions by the Chief Justice.
- Central to this option is the issue of whether New Zealand needs one or two tiers of appeal. The argument for a second tier is that it allows legal arguments to develop and refine, and also promotes better decision making and more reflective development of the law. It also reduces the risk of errors, and so promotes public confidence in the justice system. But a second level of appeal could delay final decisions and increase costs for litigants. In principle there is no reason why lawyers cannot present a full and properly developed case at the first appeal. A single level of appeal might also make better use of the country's judicial resources. The government invites comment on whether New Zealand needs one or two levels of appeal from High Court decisions.
Option Two: Two levels of appeal within the Court of Appeal
Appeal structure
This option allows a right of appeal from the High Court to a division of the Court of Appeal. There would be a criminal and a civil division, and each case would be heard by three judges.
A second level of appeal would be available from a division to a full bench of the Court of Appeal. The judges from the division bench would not be able to sit on the appeal to the full court.
Leapfrog
- In exceptionally important or urgent cases, provision could be made to leapfrog the divisions of the Court of Appeal and proceed straight to a full Court. The Judicature Act already directs the Court of Appeal to sit as a full Court to hear and determine cases it considers are of "sufficient significance to warrant the attention of a full Court". The Court's current procedure for determining which are cases of special significance that warrant the consideration of a full Court is published in the New Zealand Gazette.
Procedural choices
- Within this option there is a choice to be made on the grounds for taking a second appeal. A second appeal usually requires the leave or permission of the court. The question is how widely to frame the grounds for giving leave. It could be restricted to cases of special significance or where difficult questions of law are raised, that would make a second appeal desirable in the interests of justice. Or a second appeal could be available on a much wider set of grounds. This is an issue on which the Government welcomes discussion.
- The detail of the procedures for giving leave or permission to appeal would also need to be developed. Issues include how many judges should be involved in that decision and whether they can be judges who heard the original appeal or will hear the second appeal.
Advantages
- This option has several advantages. It:
- requires little legislative change because divisions of the Court of Appeal already exist;
- uses our existing court structure and allows the Court of Appeal to control the allocation of its judicial work and the extent of its caseload;
- may reduce the number of appeals to the full Court and allow more time for reflective law making.
Disadvantages
- This option may have resource implications, as the workload of the Court of Appeal would increase. There is a risk, inherent in any two-tier appeal structure that the best judicial minds may be under utilised. Either more Court of Appeal judges or more High Court judges on the Court of Appeal bench, may be necessary to manage the case load and to ensure that judges do not sit on appeals from their own decisions. The extent of any increase in workload would depend on the scope of the second appeal right.
- A related issue is whether High Court judges should continue to sit on the divisions or if those divisions should be limited to Court of Appeal judges only. If only Court of Appeal judges were used, more judges would need to be appointed at this level.
Option three: Appeal Division at the High Court
Appeal structure
- Under this option an appeal division of the High Court would hear all appeals brought against first instance High Court and District Court decisions. Appeals to the Court of Appeal would require leave. Again the grounds of appeals could be wide or narrow. A 'leapfrog' appeal would operate for cases of significant public importance or urgency.
- Court of Appeal judges would play no part in first appeals. The workload of the Court of Appeal would be transferred to the High Court Appeal Division, requiring additional judicial resources at that level.
- A law change would be required to replace the current provision for civil and criminal divisions of the Court of Appeal with the new appeal structure for the High Court.
Advantages
- The Court of Appeal would operate as a self-contained final appeal court, similar to final courts in Australia and Canada. Court of Appeal judges would only sit on second appeals, which may promote reflective development of the law at this level. The Court of Appeal would also be able to focus on legal policy, rather than correcting errors.
Disadvantages
- The resources of the Court of Appeal may be under-utilised, as its workload will be reduced. The extent of any reduction would depend on how narrowly the grounds for obtaining leave to appeal were framed, and on any changes in legal practice resulting from a more practicable second appeal at the High Court. In addition there is a risk of inconsistencies in decision making at the first level of appeal, as Court of Appeal judges will cease to sit on the first appeal level hearings. Such inconsistency may be addressed by the ability to have a second appeal.
|
|
|
