Appellate courts

Contents

Supreme Court | Te Kōti Mana Nui

The Supreme Court 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.

The Supreme Court is New Zealand’s apex court. It has a broad appellate jurisdiction and hears appeals spanning contract, criminal, employment, family, resource management, torts and intellectual property law. 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 (see "Declarations of inconsistency under the New Zealand Bill of Rights Act 1990").

Appeals to the Supreme Court can be heard only with the leave of the Court.[39] To grant leave to appeal, the Court must be satisfied that it 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.[40]

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

Justice Mark O’Regan, who was appointed to the Court in 2014, retired as a judge of the Court in November 2023.[41] In December, Justice Forrie Miller was appointed as his replacement.

In 2023, the Court delivered 19 appeal judgments dealing with 22 substantive appeals, six of which (27 per cent) were criminal appeals and 16 (73 per cent) were civil appeals. The Court allowed four criminal and four civil appeals. The Court dismissed two criminal and 12 civil appeals.

In 2023, the Court delivered 124 leave judgments dealing with 127 leave applications. Of those leave applications, 55 (43 percent) were criminal and 72 (57 percent) were civil applications. The Court granted 15 criminal and 12 civil applications. The Court dismissed 40 criminal and 60 civil applications.

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. There were several developments in 2023 aimed at increasing the transparency of the Court’s work, including live streaming of appeal hearings, publication of substantive appeal submissions online, and holding annual sitting weeks in Auckland and Christchurch. These initiatives are described further in "Supreme Court outreach and transparency initiatives".

Supreme Court statistics

The Courts of New Zealand website
The Courts of New Zealand website publishes all judgments of the Supreme Court. In addition, the website hosts livestreamed and recorded Supreme Court hearings and submissions for Supreme Court hearings. Through the website, the Court provides access to all judgments of the Supreme Court, to livestreamed and recorded hearings, and to the submissions for appeal hearings.

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 of Appeal 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 of Appeal has primary responsibility for direction and consistency in the delivery of criminal justice. The Court’s principal responsibility is to correct errors in conviction and sentence appeals. The Court also issues guideline judgments to provide general direction for sentencing for important criminal offending, usually via a court of five judges and following intervention by interested parties. The Court intends to review sentencing policy for sexual violence offending when appropriate cases come before it.

The Court of Appeal had a busy year, delivering 672 judgments in 2023, while managing a substantial increase in workload in the civil jurisdiction.[42]

In 2023, the Court focused on reducing the delay between filing and hearing dates, including by scheduling additional hearing time, and reducing judgment delivery timeframes.

The composition of criminal appeals is changing, with a shift from pre-trial appeals to conviction and sentence appeals. This impacts on both hearing time required as well as the time taken to dispose of (close) criminal appeals.

The Court of Appeal has 10 permanent judges, supplemented by approximately 20 High Court judges who each sit as divisional members for up to four weeks a year, under s 48(2) of the Senior Courts Act 2016. Divisional members bring current criminal trial experience to the Court. Acting judges provide additional capacity.

In March, the Court of Appeal bench welcomed Justice Jill Mallon to the Court, and in December, Justice Susan Thomas. Justice Forrie Miller was appointed to Supreme Court in December, having served as a judge of the Court of Appeal since 2013.

The Court sits year-round in Wellington and Auckland. Each year it also sits for three weeks in Christchurch and one week in Dunedin as part of its divisional sitting programme.

Criminal rules
The Rules Committee continued work to introduce the Court of Appeal (Criminal) Rules 2024 (which will replace the 2001 Criminal Rules). The New Zealand Law Society, Criminal Bar Association and Crown Law have provided comment on the proposed changes. Work will continue in 2024.

Court of Appeal statistics

Permanent Court of Appeal in Otago
In honour of the 150th anniversary of the University of Otago Faculty of Law, the Court of Appeal sat as the Permanent Court (comprising three Court of Appeal judges) in Dunedin’s historic court building to hear two appeals, one relating to employment law and the other judicial review. The Permanent Court sat in Dunedin once before in 1982.

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. 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.

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.

Te Kooti Pīra Māori | Māori Appellate Court

Te Kooti Pīra Māori | the 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.

In October, Chief High Court Judge Justice Susan Thomas and Chief Judge of the Māori Land Court Caren Fox signed a protocol setting out the process to be followed where questions of tikanga Māori are referred from the High Court to the Māori Appellate Court pursuant to s 99 of the Marine and Coastal Area (Takutai Moana) Act 2011.

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 of 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 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.

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Footnotes

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

[40] Senior Courts Act 2016, s 74.

[41] Justice O’Regan became an acting Supreme Court judge in February 2024.

[42] Court of Appeal Annual Statistics (2023).