Contents

Chapter 7
Other elements of legislative design

Appeals

7.63There 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.505  This was confirmed by the Court of Appeal in NZ Bus v Commerce Commission.506  Since the Supreme Court decision in Siemer v Heron507  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 66.508  A further appeal to the Supreme Court may only be granted by way of leave from that Court under the Supreme Court Act 2003.509
7.64An appeal under s 66 is as of right on questions of both fact and law, and is undertaken by way of rehearing.510  It is available both to defendants and the enforcement body taking the proceedings.
7.65The 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.511  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.512
7.66Furthermore, 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.513  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.514
7.67Any 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.515  For summary offences, the Summary Proceedings Act 1957 states how evidence must be heard where the appeal concerns questions of fact, 516  and the Crown’s right of appeal is more circumscribed than the defendant’s.517  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.518
7.68The 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.519  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.520  By contrast, appellate bodies have tended to exercise wider powers in the civil jurisdiction.521  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.522  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.523
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.524  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?

505Section 66 provides: “The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the [High Court], subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.”
506[2008] 3 NZLR 433 (CA) at [65].
507[2011] NZSC 133, [2012] 1 NZLR 309.
508The Law Commission is currently reviewing the Judicature Act 1908: Law Commission Review of the Judicature Act: Towards a Consolidated Courts Act (NZLC IP29, Wellington, 2012) at [11.1]. Its final report is due in December 2012.
509Supreme Court Act 2003, s 12. The Supreme Court must be “satisfied that it is necessary in the interests of justice for the Court to hear and determine the proposed appeal.” This is where: (a) the appeal involves a matter of general or public importance; or (b) a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; or (c) the appeal involves a matter of general commercial significance: s 13(1)–(2). A statute may exclude an appeal to the Supreme Court by stating that the decision of the Court of Appeal is final (see for example s 428(3) of the Maritime Transport Act 1994) but no civil penalty regimes contain such provisions.
510The appeal is decided on the record of the evidence given in the court below, although the appellate court has discretion to rehear evidence or receive further evidence. It must come to its own finding on the evidence and is not restricted by any findings the lower court has made, but acknowledges the advantage enjoyed by the first instance decision-maker which may have seen and heard the witnesses. This is in contrast to an appeal de novo, in which the appellant receives an entirely new hearing and the appeal body is not bound by the presumption that the decision appealed from is correct. See Shotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZLR 437 (CA) at 439–441 and Hutton v Palmer [1990] 2 NZLR 260 (CA) at 268.
511Legislation Advisory Committee, above n 475 at [13.1.1].
512Above at [13.4.1]. See also Law Commission Tribunal Reform (NZLC SP20, 2008) at [8.8].
513Generally only second-tier appeals should be confined to matters of law: Law Commission, above at [8.9]. And see Legislation Advisory Committee, above n 475 at [13.3.2].
514Law Commission, above n 512 at [8.10]. These issues are discussed in T Endicott “Questions of Law” (1998) 114 LQR 292.
515Section 385(1): Where the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; where the decision was wrong on a question of law; where there was a miscarriage of justice; or where the trial was a nullity. While the grounds are broadly worded, the Supreme Court has emphasised the limited supervisory role played by the appellate court especially on matters of fact: Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13].
516Section 119(2).
517Summary Proceedings Act 1957, ss 115, 115A.
518On the earlier of a date appointed by the Governor-General by Order in Council, or two years after the date the Act received the Royal assent (17 October 2011): Criminal Procedure Act 2011, s 2.
519R Nobles and D Schiff “The Right to Appeal and Workable Systems of Justice” (2002) 65 MLR 676 at 689 onwards.
520Above at 690.
521Nobles and Schiff, above n 519 at 684 onwards.
522Nobles and Schiff, above n 519 at 685. Although in the civil jurisdiction courts may also be exhorted to take a more deferential approach to questions of fact. See for example statements of Lord Jauncey in Clark Boyce v Mouat [1993] 2 NZLR 641 (PC) at 647.
523H L Dalton “Taking the Right to Appeal (More or Less) Seriously” (1985–86) 65 Yale LJ 62 at 103–104.
524Securities Act 1978, s 55D, Securities Markets Act 1988, s 42U, Takeovers Act 1993, s 33N. So for example in a case under the Commerce Act 1986, Hammond J in the Court of Appeal observed that the Commerce Commission had sought in the High Court a declaration, an order cancelling the agreement, an injunction and orders for pecuniary penalties. The appeal to the Court of Appeal was a general appeal from a series of determinations: New Zealand Bus Ltd v Commerce Commission [2008] 3 NZLR 433 (CA) at [65].