Pursuant to sections 58C(1) and 58E(1) of the Judicature Act 1908 ("the Act"), those Judges of the Court of Appeal of New Zealand / Te Koti Pira o Aotearoa ("the Court") holding office under section 57(2) of the Act ("permanent Judges"), have adopted the following procedures. These procedures replace those adopted on 7 October 2011 and notified in the New Zealand Gazette, 13 October 2011, No. 155, page 4446.
1. Assignment of Judges to Divisions of the Court
1.1 The assignment of High Court Judges to divisions of the Court will be:
(a) consistent with their eligibility through nomination by the Chief Justice in terms of sections 58A and 58B of the Act; and
(b) with the concurrence of the Chief Justice and the Chief High Court Judge pursuant to section 58C(3) of the Act.
1.2 The Court will prepare periodically a forward planning programme covering the anticipated sittings of the divisions.
1.3 The programme will provide, in the main, for:
(a) divisions of three permanent Judges (a division so comprised being referred to in this notice as a "Permanent Court"); and
(b) divisions of one permanent Judge and two High Court Judges (a division so comprised being referred to in this notice as a "Divisional Court").
Exceptions will be necessary to allow for Full Courts, inability of a particular Judge to deal with a particular appeal, illness, leave or otherwise as the exigencies of the situation require.
1.4 In the main, criminal appeals will be allocated to a Divisional Court unless the President otherwise directs. This recognises the insights which Judges with current trial experience bring to criminal appeals. The Judge making the decision under section 392A of the Crimes Act 1961 or section 327 or section 329 of the Criminal Procedure Act 2011 may recommend that the appeal be allocated either to a Permanent Court or a Full Court. As well, counsel for the appellant or respondent may request a direction that a particular appeal be allocated to a Permanent Court or a Full Court.
1.5 In the main, longer civil appeals, civil appeals that raise legal issues of public significance and interlocutory applications will be allocated to a Permanent Court and appeals from decisions of Associate Judges and shorter civil appeals that raise mainly factual issues will be allocated to a Divisional Court unless, in either case, the President otherwise directs. Interlocutory applications mean applications for leave to appeal, applications for extension of time and similar applications. Other civil appeals will be allocated either to a Permanent Court or a Divisional Court, as a matter of efficient scheduling. Counsel for the appellant or respondent may request
a direction that a particular appeal be allocated to a Divisional Court, a Permanent Court or a Full Court.
1.6 Assignment of permanent Judges and/or eligible High Court Judges to panels for particular appeals will be by the President who, where appropriate, will consult with other permanent Judges.
1.7 In assigning panels for particular appeals and in deciding whether particular appeals should be allocated to a Permanent Court or a Divisional Court, the President may take into account the following considerations:
(a) The forward planning programme and the availability of Judges.
(b) The equitable sharing of work among the Judges;
(c) The efficient dispatch of the Court's business.
(d) The desirability of dealing with an appeal promptly in any case of urgency (eg an appeal by an appellant serving a short sentence or an appeal against a pretrial ruling in a criminal case).
(e) Considerations of expense and convenience for counsel and parties, where a decision is required to be made whether an appeal be heard in Auckland, Wellington, or Christchurch.
(f) The role of all the permanent Judges in the clarification and development of all areas of the law and recognition of specific areas of judicial expertise.
(g) That it may be desirable for related litigation (appeals arising out of the same facts between the same or some of the same parties) to be dealt with by the same or some of the same Judges.
2. Appeals of Sufficient Significance for a Full Court
2.1 The President will determine whether an appeal is of sufficient significance to warrant the consideration of a Full Court. The President will, where appropriate, consult with other permanent Judges. In the main, an appeal will be allocated to a Full Court only where:
(a) the establishment or revision of sentencing guidelines is proposed; or
(b) the appeal involves issues of evidence, procedure or practice of general application or some other issue which will be of major significance to other cases, particularly where there is no right to apply to
the Supreme Court for leave to appeal against the Court's decision.
2.2 In determining whether an appeal should be allocated to a Full Court, the President may take into account the following considerations:
(a) The forward planning programme and availability of Judges.
(b) The efficient dispatch of the Court's business.
2.3 That one or more of the parties seeks the reconsideration of an earlier judgment of the Court is not, in itself, a reason for allocating the appeal to a Full Court.
2.4 A decision that an appeal be allocated to a Full Court may be reviewed by the President from time to time (for instance for reasons associated with the availability of Judges) and the President may direct that an appeal which has been allocated to a Full Court be reallocated to a Permanent Court or a Divisional Court.
2.5 The permanent Judges will consult regularly to review the criteria, their implementation and the general effect of the allocation to a Full Court on the overall workload of the Court.
2.6 In addition to the above, and as required by section 58D(4)(b) and (c) of the Act, a Full Court will consider references from a Permanent Court or a Divisional Court made pursuant to section 58(6) of the Act and appeals under section 10 of the Court Martial Appeals Act 1953.
References in this notice to "the President" include a Judge acting as President or a Judge nominated by the President to undertake any of the functions of the President referred to in this notice. References to "appeals" include interlocutory applications and references to "appellants" include applicants.
Dated at Wellington this 28th day of March 2014.
MARK O'REGAN, President / Tumuaki, Court of Appeal of New Zealand / Te Koti Pira o Aotearoa.