Other elements of legislative design
There seems little doubt that appeals from civil pecuniary penalty proceedings fall within the general right of appeal to the Court of Appeal contained in s 66 of the Judicature Act 1908. Section 66 provides for the Court of Appeal to have appellate jurisdiction over “any judgment, decree, or order” of the High Court.
This was confirmed by the Court of Appeal in NZ Bus v Commerce Commission
Since the Supreme Court decision in Siemer v Heron
it is also clear that any appeals on interlocutory decisions or orders made in the High Court are brought before the Court of Appeal under s 66.
A further appeal to the Supreme Court may only be granted by way of leave from that Court under the Supreme Court Act 2003.
An appeal under s 66 is as of right on questions of both fact and law, and is undertaken by way of rehearing.
It is available both to defendants and the enforcement body taking the proceedings.
The alternative approach would be for each statute to specify the appeal route for civil pecuniary penalty proceedings. Such specification might be desirable if there was a need to restrict appeals for reasons such as cost, delay, the significance of the subject matter, the specialist competence and expertise of the first-instance decision maker, or the need for finality.
However, our initial view is that it is appropriate for civil pecuniary penalties to be subject to the broad right of appeal in s 66. They are a comparatively novel form of action which involves the imposition of sizeable monetary penalties. As such it may be likely that challenges will be brought relating both to procedural matters and penalty setting. This warrants full supervisory oversight by the Court of Appeal. A general appeal on fact and law ensures there is an opportunity to correct both factual and legal errors, while an appeal by way of rehearing strikes an appropriate balance between correcting errors and resolving appeals expeditiously.
Furthermore, the Court of Appeal hears the first-tier appeal from a civil pecuniary penalty decision. In principle then the appeal right should not be confined, unless one of the factors listed in the preceding paragraph applies.
The Commission has previously expressed the view that a cautious approach should be taken to limiting appeals to questions of law, because of the difficulties that may arise in trying to distinguish between matters of fact and law.
Any argument for narrowing the appeal route for civil pecuniary penalties might be based on their “quasi-criminal” nature. Criminal appeal rights have more formal restrictions. For example, the Crimes Act 1961 sets out four specific grounds for allowing an appeal against conviction for an indictable offence.
For summary offences, the Summary Proceedings Act 1957 states how evidence must be heard where the appeal concerns questions of fact,
and the Crown’s right of appeal is more circumscribed than the defendant’s.
When the relevant provisions of the Criminal Procedure Act 2011 come into force they will mainly consolidate and update existing appellate processes without making major substantive reforms.
The more formal restrictions on the right to appeal in the criminal law relate to the need to afford deference to the jury (or the initial fact-finder) on factual matters.
The jury is expressly given the task of determining whether the defendant is factually guilty or not. It is thought more competent to determine factual issues, for example by virtue of having seen the witnesses first-hand.
By contrast, appellate bodies have tended to exercise wider powers in the civil jurisdiction.
Richard Nobles and David Schiff cite, for example, the decline in civil juries as leading to an increase in the ability of appeal courts to review civil proceedings.
As currently drafted, s 66 facilitates broad oversight of civil appeals, which might be particularly appropriate for civil pecuniary penalty proceedings. For example, if the government’s disproportionate power in civil pecuniary penalty proceedings distorts trial outcomes, then the right of appeal may serve as a corrective measure.
7.69For these reasons, we consider that appeals from civil pecuniary penalties should continue to be brought under the broadly framed right in s 66. Narrowing the right of appeal available for civil pecuniary penalties may also cause practical difficulties. In particular, declarations of liability under a number of existing regimes can give rise to other types of order – such as compensation orders – in addition to civil pecuniary penalties. Any argument to restrict civil pecuniary penalty appeal rights due to their quasi-criminal nature may not carry for the other available orders. To provide for a range of appeal rights under such a statutory scheme would be complex.
Q40 Do you agree that appeals from civil pecuniary penalties should continue to be brought under the broadly framed right in s 66 of the Judicature Act 1908?