Chapter 17

Appeals of penalties imposed by the High Court

17.1At present, all pecuniary penalties, bar one, are imposed by the High Court.462 The Issues Paper asked whether appeals of pecuniary penalties should continue to be brought before the Court of Appeal under the broadly framed right in section 66 of the Judicature Act 1908.463 Section 66 provides that the Court of Appeal has appellate jurisdiction over “any judgment, decree, or order” of the High Court.464 An appeal under section 66 is brought as of right on questions of both fact and law, and is undertaken by way of rehearing.465 It is available both to defendants and the enforcement body taking the proceedings. Section 66 also deals with appeals on interlocutory decisions or orders made in the High Court.466
17.2A further appeal to the Supreme Court may be granted by way of leave under the Supreme Court Act 2003.467
17.3An alternative approach to appeal rights would be for each statute to specify the appeal route for pecuniary penalty proceedings. Currently, none do; however, that might be desirable if there was a need to restrict appeals for reasons of cost, delay, the significance of the subject matter, the specialist competence and expertise of the first-instance decision maker, or the need for finality.468
17.4All submitters who answered this question agreed with our view that it is appropriate for those pecuniary penalties imposed by the High Court to be subject to the broad right of appeal in section 66, for the reasons given in the Issues Paper. They are a comparatively novel form of action that 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 quantum. This warrants full supervisory oversight by the Court of Appeal. It has been noted that:469

… even in civil cases, litigants who find themselves tilting against the overwhelming might of the state, in a forum set up and operated by the state, should have the right to a sober second look.

17.5A general appeal on fact and law ensures 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.470 A cautious approach should be taken to limiting appeals on pecuniary penalties to questions of law, because of the difficulties that may arise in trying to distinguish between matters of fact and law.471 Generally, only second-tier appeals should be limited to matters of law.472
17.6Narrowing the right of appeal for 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 pecuniary penalties.473 Any argument to restrict pecuniary penalty appeal rights because of 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.
17.7As currently drafted, section 66 ensures broad appellate court oversight of pecuniary penalties. This may be contrasted with the closely prescribed criminal appeal rights set out in Part 6 of the Criminal Procedure Act 2011. Criminal appeal rights are more closely prescribed, in part, because of the need to afford deference to initial determinations of fact in criminal trials.474 For the reasons given in this section, we recommend that the general right of appeal in section 66 should apply to all pecuniary penalties imposed by the High Court.
462Section 37 of the Unsolicited Electronic Messages Act 2007 confers jurisdiction on the District Court to hear applications for a pecuniary penalty under that Act.
463Issues with s 66 of the Judicature Act were recently noted by the Law Commission in Review of the Judicature Act: Towards a Consolidated Courts Act (NZLC IP29, 2012) at [11.1]. The section has given rise to substantial difficulties over the years as to what appeals come within its purview: Andrew Beck “When is a judgment not a judgment?” [2007] NZLJ 381. The provision will be reformed by clause 57 of the Judicature Modernisation Bill 2013 (178-2) which, at the time of publication, is awaiting its second reading before Parliament.
464See also New Zealand Bus Ltd v Commerce Commission [2007] NZCA 502, [2008] 3 NZLR 433 at [65]. In full, section 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.
465The 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.
466​See Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 and Waterhouse v Contractors Bonding Ltd [2013] NZCA 151. Clause 57 of the Judicature Modernisation Bill, as it is reported back from the Select Committee, provides that leave of the High Court will be required for appeals against interlocutory orders or decisions of the High Court in respect of any civil proceeding, except those that (a) strike out or dismiss the whole or part of a proceeding, claim, or defence; or (b) grant summary judgment.
467Supreme 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 Maritime Transport Act 1994, s 428(3)), although no pecuniary penalty regimes contain such provisions.
468Legislation Advisory Committee Guidelines on Process and Content of Legislation (2001) at [13.1.1] [LAC Guidelines].
469HL Dalton “Taking the Right to Appeal (More or Less) Seriously” (1985) 95 Yale LJ 62 at 103–104. Dalton considers whether appeals are required to address the risk that the government’s disproportionate power distorts trial outcomes.
470See Law Commission Tribunal Reform (NZLC SP 20, 2008) at [8.8].
471At [8.10]. These difficulties are discussed in T Endicott “Questions of Law” (1998) 114 LQR 292.
472At [8.9]. See also LAC Guidelines, above n 468, at [13.3.2].
473Financial Markets Conduct Act 2013, s 487; and Takeovers Act 1993, s 33N. Also a series of discrete orders made in the High Court may be appealed as a general appeal: see for example New Zealand Bus Ltd v Commerce Commission, above n 464, at [65].
474See Law Commission Civil Pecuniary Penalties (NZLC IP33, 2012) [Issues Paper] at [7.67]–[7.68] and R Nobles and D Schiff “The Right to Appeal and Workable Systems of Justice” (2002) 65 MLR 676 at 689 onwards.