Appeals of penalties imposed by the High Court
17.1At present, all pecuniary penalties, bar one, are imposed by the High Court. 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. Section 66 provides that the Court of Appeal has appellate jurisdiction over “any judgment, decree, or order” of the High Court. An appeal under section 66 is brought 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. Section 66 also deals with appeals on interlocutory decisions or orders made in the High Court.
17.2A further appeal to the Supreme Court may be granted by way of leave under the Supreme Court Act 2003.
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.
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:
… 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. 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. Generally, only second-tier appeals should be limited to matters of law.
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. 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. 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.