Schedule 5 Appeals against decisions of Local Government Commission

s 37

1 Restrictions on appeals

(1)

Proceedings before the Commission are not invalid for want of form and, except as provided in this schedule, no appeal lies from any decision of the Commission.

(2)

Nothing in subclause (1)—

(a)

prohibits or restricts the High Court from exercising a supervisory jurisdiction over the Commission on questions of law; or

(b)

restricts the power of the Commission to refer any disputed question of law to the High Court for decision under section 34 of the Inquiries Act 2013.

Compare: 1974 No 66 s 37ZM

Schedule 5 clause 1(2)(b): amended, on 22 October 2019, by section 33 of the Local Government Act 2002 Amendment Act 2019 (2019 No 54).

2 Appeal to High Court

(1)

If a party to proceedings before the Commission or the Minister is dissatisfied with a decision of the Commission in the proceedings as being erroneous in point of law, the party or the Minister may appeal to the High Court on the question of law.

(2)

The decision of the High Court on the appeal is final.

(3)

Subject to clauses 4 to 9, an appeal under this clause must be dealt with in accordance with rules of court.

(4)

For the purposes of this clause and clauses 4 to 9, a local authority affected by the decision, and a person who has made submissions to the Commission in the proceedings, is to be treated as a party to the proceedings before the Commission.

Compare: 1974 No 66 s 37ZE

3 Appeal in respect of additional points of law

(1)

If a party to an appeal under clause 2, other than the appellant, wishes to contend at the hearing of the appeal that the decision appealed from is erroneous in point of law, other than those set out in the notice of appeal, the party may, within 1 month after the date of the service on the party of a copy of the notice of appeal, lodge a notice to that effect with the Registrar of the High Court in Wellington.

(2)

Clauses 2, 4(2) to (4), 5, 6, 8, and 9 apply, with any modifications that may be necessary, to any notice lodged under this section as if it were a notice of appeal.

Compare: 1974 No 66 s 37ZJ

4 Procedure for appeal

(1)

An appeal under clause 2 must be instituted by the appellant lodging a notice of appeal within 1 month after the date of the decision with—

(a)

the Registrar of the High Court in Wellington; and

(b)

the Chief Executive Officer of the Commission.

(2)

Either before or immediately after the lodging of the notice of appeal, the appellant must serve a copy of the notice of appeal, either personally or by post, on every other party to the proceedings before the Commission.

(3)

Service under subclause (2), if by post, must be by registered letter and, for the purposes of this clause, is deemed, in the absence of proof to the contrary, to be effected at the time when the letter would be delivered in the ordinary course of post.

(4)

A notice of appeal must specify—

(a)

the decision or the part of the decision appealed from; and

(b)

the error of law alleged by the appellant; and

(c)

the question of law to be resolved; and

(d)

the grounds of the appeal, specified with such reasonable particularity as to give full advice to both the court and the other parties of the issues involved.

(5)

The Chief Executive Officer of the Commission must, as soon as practicable after receiving a copy of the notice of appeal, send a copy of the whole of the decision appealed from to the Registrar of the High Court in Wellington.

Compare: 1974 No 66 s 37ZF

5 Preliminary orders

(1)

The High Court may, of its own motion or on the application of a party to the appeal, make 1 or more of the following orders:

(a)

an order directing the Commission to lodge with the Registrar of the High Court in Wellington a document or other written material or an exhibit in the possession or custody of the Commission:

(b)

an order directing the Commission to lodge with the Registrar a report recording, in respect of any matter or issue that the court may specify, any of the findings of fact of the Commission that are not set out or fully set out in its decision:

(c)

an order directing the Commission to lodge with the Registrar a report setting out, in respect of a matter or issue that the court may specify, any reasons or considerations of the Commission to which the Commission had regard but which are not set out in its decision.

(2)

An application under subclause (1) must,—

(a)

in the case of the appellant, be made within 1 month after the date of the lodging of the notice of appeal; or

(b)

in the case of any other party to the appeal, within 1 month after the date of the service on that party of a copy of the notice of appeal.

(3)

The High Court may make an order under subclause (1)—

(a)

only if it is satisfied that a proper determination of the point of law in issue so requires; and

(b)

subject to any conditions that the High Court thinks fit.

Compare: 1974 No 66 s 37ZH

6 Hearing

An appeal is, in all respects, ready for hearing and the Registrar must arrange a date for the hearing as soon as is practicable if a party to the appeal notifies the Registrar of the High Court in Wellington—

(a)

that the notice of appeal has been served on all parties to the proceedings; and

(b)

either—

(i)

that no application has been lodged under clause 5 and that no order has been made under that clause; or

(ii)

that any application lodged under clause 5 has been heard and that any order under that clause has been complied with.

Compare: 1974 No 66 s 37ZL

7 Right to appear

(1)

A party to the proceedings before the Commission who wishes to appear and be heard on the hearing of the appeal must, within 10 days after the date of the service on that party of a copy of the notice of appeal, lodge with the Registrar of the High Court in Wellington a notice of that party’s intention to appear and be heard.

(2)

A party who gives a notice of intention to appear and be heard and the appellant are parties to the appeal and are entitled—

(a)

to be served with every document filed or lodged with the Registrar relating to the appeal; and

(b)

to receive a notice of the date set down for the hearing of the appeal.

Compare: 1974 No 66 s 37ZG

8 Dismissal of appeal

The High Court may dismiss an appeal—

(a)

if the appellant does not appear at the time appointed for the hearing of the appeal; or

(b)

if the appellant does not prosecute the appeal with all due diligence and a party applies to the court for the dismissal of the appeal.

Compare: 1974 No 66 s 37ZI

9 Extension of time

The High Court or a High Court Judge may, in its or the Judge’s discretion, on the application of the appellant or intending appellant or any other party, extend any time provided under this schedule for the lodging of any notice, application, or other document.

Compare: 1974 No 66 s 37ZK