Court of Appeal (Civil) Rules 2005

Reprint
as at 3 June 2014

Coat of Arms of New Zealand

Court of Appeal (Civil) Rules 2005

(SR 2005/69)

Silvia Cartwright, Governor-General

Order in Council

At Wellington this 21st day of March 2005

Present:
Her Excellency the Governor-General in Council


Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

These rules are administered by the Ministry of Justice.


Pursuant to section 51C of the Judicature Act 1908, Her Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, and with the concurrence of the Right Honourable the Chief Justice and at least 2 other members of the Rules Committee (of whom at least 1 was a Judge of the High Court), makes the following rules.

Contents

1 Title

2 Commencement

Part 1
Preliminary and general matters

3 Interpretation

4 Application of rules

5 Directions

6 Effect of non-compliance with rules

7 Judge may exercise certain powers under rules

7A Judges to be identified

8 Correction of accidental slip or omission

9 Heading, point size, and margin

10 Filing and service of documents

11 Affidavits

12 Stay of proceedings and execution

12A Practice note about electronic format

Part 2
Applications for leave to appeal

Application of Part

13 Application of this Part

Making applications for leave to appeal

14 Time for making application for leave

15 Form of application for leave

16 When application for leave is brought

17 Matters to be stated in application for leave

18 Documents required to accompany application for leave

19 Leave required for amendments to application for leave

Applications for leave opposed by respondent

20 Respondent opposes application for leave

21 Allocation of hearing date

22 Case for application for leave

23 Written submissions on application for leave

24 Bundle of authorities

25 Oral submissions on application for leave

Applications for leave where respondent consents

26 Respondent consents to application for leave

Abandonment of applications for leave

26A Abandonment of applications for leave

26B Effect of failing to pay fees of Court

Determination of applications for leave

27 Determination of application for leave

Part 3
Appeals

Application of Part

28 Application of this Part

Commencement of appeals

29 Time for appeal

29A Extension of time for appealing

30 Form of appeal

31 Mode of bringing appeal

32 Mode of bringing cross-appeal

33 Respondent who intends to support decision appealed against on other ground

34 Amendment of grounds of appeal

Steps to be taken before hearing

35 Security for costs: general

36 Security for costs: legal aid

37 Consequences of failure to comply with requirement to pay security for costs

38 Allocation of hearing date

39 Obligations of parties in preparing case on appeal

40 Filing and form of case on appeal

40A Reuse of case on appeal used for leave application

40B Evidence included in case on appeal

40C Evidence volume

40D Exhibits volume

41 Written submissions on appeals

42 Bundle of authorities

42A Issues

Termination before hearing

43 Appeal abandoned if not pursued

44 Abandonment of appeal by party

Matters of evidence and information

45 Application for leave to adduce further evidence

46 Court may call for exhibits, etc, and request report from court or tribunal of first instance

Part 4
Determination of appeals

47 Appeals to be by way of rehearing

48 Powers of Court in hearing appeals

49 Delivery of judgment

50 Notification of result of appeal to other courts

51 Judgments to be sealed, dated, and served

52 When judgment takes effect

53 Costs at discretion of Court

53A Principles applying to determination of costs

53B Categorisation of appeals

53C Appropriate daily recovery rates

53D Determination of reasonable time

53E Increased costs and indemnity costs

53F Refusal of, or reduction in, costs

53G Principles applying to costs on application for leave to appeal

53H Disbursements

53I Joint and several liability for costs

53J Costs in court appealed from

54 Repayment of judgment sum and interest

Part 5
Revocation and transitional provision

55 Revocation

56 Transitional provision

Schedule 1
Forms

Schedule 2
Time allocations


Rules

1 Title
  • These rules are the Court of Appeal (Civil) Rules 2005.

2 Commencement
  • These rules come into force on 1 May 2005.

Part 1
Preliminary and general matters

3 Interpretation
  • (1) In these rules, unless the context otherwise requires,—

    appellant includes a person who would, on the giving of leave to appeal, be the appellant in the appeal

    court appealed from means the court or tribunal from which the appeal is brought directly to the Court of Appeal, whether as of right or by leave

    Court of Appeal or Court means the Court of Appeal of New Zealand

    Judge means a Judge of the Court

    legal aid means legal aid under the Legal Services Act 2000

    Registrar

    • (a) means the Registrar of the Court; and

    • (b) includes a Deputy Registrar of the Court

    Registry means the registry of the Court

    respondent includes a person who would, on the giving of leave to appeal, be the respondent in the appeal

    working day means a day that is not—

    • (a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, or Waitangi Day; or

    • (b) a day in the period commencing on 25 December in one year and ending on 15 January in the next year.

    (2) In any judgment, order, direction, or other document forming part of any proceeding, unless the context otherwise requires,—

    month means a calendar month

    working day has the meaning given by subclause (1).

4 Application of rules
  • (1) These rules apply to all proceedings of the Court, except proceedings to which the Court of Appeal (Criminal) Rules 2001 apply.

    (2) These rules apply subject to any express provision in the enactment under which the appeal is brought or is sought to be brought.

    Compare: SR 1997/180 r 3

5 Directions
  • (1) The Court may give any directions that seem necessary for the just and expeditious resolution of any matter that arises in a proceeding.

    (2) The Court may extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding on any terms that the Court thinks just.

    (3) The Court may exercise a power conferred by subclause (2)—

    • (a) whether on application by a party or on the Court’s own initiative; and

    • (b) whether for reasons of urgency or for any other reason; and

    • (c) in the case of an extension of the time referred to in that subclause, whether before or after that time has expired.

    (4) If any matter arises in a proceeding for which no form of procedure is prescribed by these rules, the Court must dispose of the matter as nearly as practicable in accordance with the provisions of these rules affecting any similar matter, or, if there are no such provisions, in the manner that the Court thinks best calculated to promote the ends of justice.

    (5) The Court may give directions to determine the form of documents to be filed in proceedings.

    Compare: SR 1997/180 r 25; SR 2004/199 r 5

6 Effect of non-compliance with rules
  • (1) A document that does not comply with these rules may be received for filing only by leave of a Judge or the Registrar.

    (2) Non-compliance with any of these rules does not render void the application or the appeal in which the non-compliance has occurred, but the application or the appeal may be set aside either wholly or in part or amended or otherwise dealt with in any manner and on any terms that the Court decides.

    (3) The Court may, in any manner that it thinks fit,—

    • (a) direct a party to remedy the non-compliance; and

    • (b) if a party was not present or represented in Court when the direction was given, direct the Registrar to transmit its direction to the party.

    (4) Subclause (2) is subject to subclause (1).

    Compare: SR 1997/180 r 27; SR 2004/199 r 6

7 Judge may exercise certain powers under rules
  • (1) A Judge may exercise—

    • (a) a power conferred on the Court by these rules to give directions or to decide a matter, except the determination of an application for leave to appeal or an appeal:

    • (b) the power conferred on the Court by rule 30(2) of the Supreme Court Rules 2004.

    (2) A Judge may, on application, review any decision of the Registrar under these rules.

    (3) An application under subclause (2) must be made within 10 working days after the Registrar’s decision.

    Compare: SR 2004/199 r 7

    Rule 7(1): substituted, on 1 April 2008, by rule 4 of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

7A Judges to be identified
  • Every judgment, minute, or direction must identify on the face of it the Judge or Judges who made the decision or minute or gave the direction.

    Rule 7A: inserted, on 7 August 2006, by rule 4 of the Court of Appeal (Civil) Amendment Rules 2006 (SR 2006/181).

8 Correction of accidental slip or omission
  • (1) This rule applies if—

    • (a) any judgment or order or the reasons for any judgment or order contain a clerical mistake or an error arising from an accidental slip or omission (whether the mistake, error, slip, or omission was made by an officer of the Court or not); or

    • (b) any judgment or order is drawn up in a way that does not express what was actually decided and intended.

    (2) The Court or the Registrar may correct the judgment or order or the reasons for the judgment or order on—

    • (a) the Court’s or Registrar’s own initiative; or

    • (b) an interlocutory application made for that purpose.

    (3) The Registrar may correct the judgment or order or the reasons for the judgment or order in accordance with subclause (2) only if the judgment or order in question was made by the Registrar.

9 Heading, point size, and margin
  • (1) The first page of each document filed in the Registry must have a heading comprising—

    • (a) the words In the Court of Appeal of New Zealand; and

    • (b) the name of each appellant, followed by the word Appellant; and

    • (c) the name of each respondent, followed by the word Respondent.

    (2) Every document must be in legible type of not less than 12 point size.

    (3) Every page of a document must have a margin that must be—

    • (a) at least one quarter of the width of the paper; and

    • (b) on the left-hand side of the page (unless the page is on the reverse side of the paper, in which case the margin must be on the right-hand side of the page).

    Compare: SR 1997/180 r 15; SR 2004/199 r 8

10 Filing and service of documents
  • (1) A document may be filed in the Registry—

    • (a) by delivering it to the Registry by hand; or

    • (b) by sending it to the Registry—

      • (i) by mail to a postal address published by the Registrar; or

      • (ii) by fax to a fax number published by the Registrar; or

      • (iii) by email to an email address published by the Registrar.

    (2) A document may be served on a party—

    • (a) at the address for service notified by the party in the proceeding in the court appealed from, or at an address for service notified by the party for the purposes of the appeal; or

    • (b) by sending it by mail to a postal address supplied by the party for the purposes of the appeal; or

    • (c) by fax to a fax number supplied by the party for the purposes of the appeal; or

    • (d) by email to an email address supplied by the party for the purposes of the appeal.

    (3) If a document is, in accordance with this rule, filed by sending it by mail to the Registry, the document is filed on the day on which the Registry receives it.

    (4) If a document is, in accordance with this rule, served by sending it by mail to a postal address, the document is served on the earlier of—

    • (a) the fifth working day after the day on which it is sent by mail; or

    • (b) the day on which it is received.

    (5) If a document is, in accordance with this rule, filed or served by sending it to a fax number or to an email address, the document is filed or served at the time it is received by the relevant fax or email system.

    (6) However, if the document is received by the relevant fax or email system on a day that is not a working day or at a time that is not between 9 am and 5 pm, the document is filed or served at 9 am on the first working day after that receipt.

    (7) Despite subclauses (1) and (2),—

    Compare: SR 2004/199 r 10

11 Affidavits
  • (1) Affidavits made in matters heard or pending in the court or tribunal of first instance or in the court appealed from may be used in the Court of Appeal.

    (2) The provisions of the High Court Rules concerning affidavits apply, with any necessary modifications, to affidavits in the Court of Appeal.

    (3) Affidavits in the Court of Appeal may be sworn before—

    • (a) the Registrar; or

    • (b) any of the persons authorised to take affidavits under rule 521 of the High Court Rules.

    Compare: SR 1997/180 r 16

12 Stay of proceedings and execution
  • (1) None of the matters referred to in subclause (2) operate as—

    • (a) a stay of a proceeding in which a decision was given; or

    • (b) a stay of execution of that decision.

    (2) The matters are—

    • (a) an application for leave to appeal; or

    • (b) the giving of that leave; or

    • (c) an appeal.

    (3) Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on application,—

    • (a) order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or

    • (b) grant any interim relief.

    (4) An order or a grant under subclause (3) may—

    • (a) relate to execution of the whole or part of the decision or to a particular form of execution:

    • (b) be subject to any conditions that the court appealed from or the Court thinks fit, including conditions relating to security for costs.

    (5) If the court appealed from refuses to make an order under subclause (3), the Court may, on application, make an order under that subclause.

    (6) If the court appealed from makes an order under subclause (3), the Court may, on application, vary or rescind that order.

    (7) The Court may, at any time, vary or rescind an order made by it under this rule.

    Compare: SR 1997/180 r 9; SR 2004/199 r 30

12A Practice note about electronic format
  • If, under these rules, or with the authority of the court, any document or bundles of documents are to be served or filed electronically by any party, the party must have regard to any practice note issued from time to time by the President of the Court of Appeal about electronic formats.

    Rule 12A: inserted, on 3 June 2014, by rule 4 of the Court of Appeal (Civil) Amendment Rules 2014 (LI 2014/126).

Part 2
Applications for leave to appeal

Application of Part

13 Application of this Part
  • (1) This Part applies if leave of the Court is required before a person may bring an appeal.

    (2) [Revoked]

    (3) In this Part, leave includes special leave.

    Rule 13(2): revoked, on 7 August 2006, by rule 5 of the Court of Appeal (Civil) Amendment Rules 2006 (SR 2006/181).

Making applications for leave to appeal

14 Time for making application for leave
  • (1) Whenever an enactment provides that the Court may grant leave to appeal against a decision, an application for that leave must be made to the Court within the appropriate period specified in subclause (2).

    (2) The appropriate period is,—

    • (a) where leave may be given only by the Court, 20 working days after the decision is given:

    • (b) where the Court may give leave only if the court appealed from refuses leave, 20 working days after that refusal:

    • (c) where the Court or the court appealed from may give leave, 20 working days after the decision is given or, as the case requires, 20 working days after the court appealed from refuses leave.

    (3) For the purposes of subclauses (1) and (2), a period begins when the decision to which it relates is given, whether or not—

    • (a) reasons for the decision are then given or are given later; or

    • (b) formal steps, such as entering or sealing the decision, are necessary or are taken after the decision is given.

    (4) A respondent who wishes to cross-appeal must apply for leave to cross-appeal within 10 working days after the date on which a copy of the appellant’s application for leave is served on the respondent.

    (5) [Revoked]

    (6) This rule does not apply to an application for an extension of time under rule 29A.

    Compare: SR 1997/180 r 5; SR 2004/199 r 11

    Rule 14(1): substituted, on 1 July 2008, by rule 4(1) of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

    Rule 14(2): substituted, on 1 July 2008, by rule 4(1) of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

    Rule 14(3): substituted, on 7 August 2006, by rule 6(2) of the Court of Appeal (Civil) Amendment Rules 2006 (SR 2006/181).

    Rule 14(5): revoked, on 7 August 2006, by rule 6(3) of the Court of Appeal (Civil) Amendment Rules 2006 (SR 2006/181).

    Rule 14(6): substituted, on 1 July 2008, by rule 4(2) of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

15 Form of application for leave
  • An application for leave to appeal or cross-appeal must be in form 1 of Schedule 1 or in a form to similar effect.

    Rule 15: amended, on 1 July 2008, by rule 11 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

16 When application for leave is brought
  • (1) An application for leave to appeal is brought only when—

    • (a) the applicant files the application in the Registry—

      • (i) by delivering it by hand to the Registry; or

      • (ii) by sending it by mail to a postal address published by the Registrar; and

    • (b) a copy of the application is served on every person who was a party to the proceeding in the court appealed from.

    (2) The applicant is responsible for serving the application.

    (3) The Registrar must promptly transmit a copy of the application to the Registrar of the court appealed from.

    Compare: SR 2004/199 r 13

17 Matters to be stated in application for leave
  • (1) An application for leave to appeal must state—

    • (a) the specific grounds of the appeal; and

    • (b) why the Court should give leave; and

    • (c) the judgment that the applicant seeks for the appeal, if leave is granted.

    (2) If the appeal relates only to a part of the decision concerned, that part must be identified in the application.

    Compare: SR 2004/199 r 15

18 Documents required to accompany application for leave
  • (1) An application for leave to appeal must be accompanied by—

    • (a) a copy of the decision to which the appeal relates; and

    • (b) a copy of any separate reasons for the decision (if available); and

    • (c) if that decision was given on appeal, a copy of every decision previously given in the proceeding on matters of relevance to the appeal; and

    • (d) a copy of any separate reasons for every decision referred to in paragraph (c); and

    • (e) any affidavit relevant to the application.

    (2) The documents referred to in subclause (1)(a) to (d) need not be served.

    (3) The applicant must serve an affidavit filed under subclause (1)(e).

    Compare: SR 2004/199 r 16

19 Leave required for amendments to application for leave
  • (1) A party may amend an application for leave only with the leave of the Court.

    (2) In seeking leave to amend the application for leave under subclause (1), the party must, unless the Court otherwise directs, submit a draft of the application that sets out all the proposed grounds and incorporates the amendments sought.

    (3) At any time before giving leave to appeal, the Court may grant the party leave to amend the application for leave.

    Compare: SR 2004/199 r 21

Applications for leave opposed by respondent

20 Respondent opposes application for leave
  • (1) If the respondent opposes the application for leave to appeal, the respondent must, within the time specified in subclause (2), file and serve—

    • (a) a memorandum setting out why the Court should not give leave; and

    • (b) any affidavit relevant to the respondent’s opposition to the application.

    (2) The time is 10 working days after the date on which a copy of the application for leave is served on the respondent.

21 Allocation of hearing date
  • The Registrar must, after consultation with the parties, promptly allocate a hearing date for the application for leave to appeal.

    Compare: SR 2004/199 r 22

22 Case for application for leave
  • (1) The applicant must prepare the case for the application for leave to appeal.

    (2) The case must comprise all documents filed under rules 16, 18, and 20.

    (3) The applicant may not include in the case any document that is not relevant to the grounds to be argued on the application for leave.

    (4) Subject to subclause (3), rules 40(3) to (5), 40B, 40C, and 40D apply, with all necessary modifications, to the case.

    (5) The applicant must file in the Registry 4 copies of the case at the same time as the applicant files the applicant’s written submissions under rule 23.

    (6) The applicant must serve a copy of the case at the same time as the applicant serves the applicant’s written submissions.

    Rule 22(4): substituted, on 1 July 2008, by rule 5 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

23 Written submissions on application for leave
  • (1) The applicant must, within 20 working days after filing the application for leave to appeal,—

    • (a) file in the Registry 4 copies of the applicant’s written submissions in support of the application; and

    • (b) serve a copy of those written submissions on the other party.

    (2) The applicant’s written submissions under subclause (1)—

    • (a) must be contained in a document of not more than 10 pages, using 1.5 line spacing; and

    • (b) must set out clearly and succinctly—

      • (i) a narrative of the facts of the case relevant to the appeal:

      • (ii) the points of law or fact involved:

      • (iii) the decision to be appealed against:

      • (iv) the reason why the Court should give leave to appeal.

    (3) A party who wishes to make written submissions in response to the applicant’s written submissions must, within 15 working days after the date of service under subclause (1)(b),—

    • (a) file in the Registry 4 copies of that party’s written submissions; and

    • (b) serve a copy of those written submissions on the applicant.

    (4) The written submissions referred to in subclause (3)—

    • (a) must be contained in a document of not more than 10 pages, using 1.5 line spacing; and

    • (b) must set out clearly and succinctly the reasons that support the arguments advanced in response.

    (5) This rule is subject to any contrary direction given by the Court in a particular case.

    Compare: SR 2004/199 r 20

    Rule 23(2)(a): amended, on 1 April 2008, by rule 5(1) of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

    Rule 23(4)(a): amended, on 1 April 2008, by rule 5(2) of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

24 Bundle of authorities
  • (1) The applicant must, not later than 5 working days before the hearing date allocated under rule 21,—

    • (a) file in the Registry 4 copies of a bundle of authorities that consists only of the authorities that the applicant considers essential to the applicant’s argument in support of the application for leave; and

    • (b) serve a copy of the bundle on the other party.

    (2) If any authorities that the respondent considers essential to the respondent’s argument in relation to any application for leave are not included in the bundle filed under subclause (1), the respondent must, not later than 3 working days before the date allocated for the hearing of the application,—

    • (a) file in the Registry 4 copies of a bundle of those authorities; and

    • (b) serve a copy of the bundle on the other party.

    (3) If an official report (for example, NZLR, CLR, AC, SCR) of a case is available, that report is to be used for the bundle of authorities.

    (4) A bundle of authorities under subclause (1) or subclause (2) must be filed in the Registry—

    • (a) by delivering it to the Registry by hand; or

    • (b) by sending it to the Registry by mail to a postal address published by the Registrar.

    (5) A bundle of authorities under subclause (1) or subclause (2) must be served—

    • (a) by delivering it by hand to the other party’s address for service; or

    • (b) by sending it by mail to the postal address supplied by the other party for the purposes of the appeal.

    Compare: SR 2004/199 r 23

25 Oral submissions on application for leave
  • (1) Oral submissions made at the hearing of an application for leave to appeal may not exceed—

    • (a) 15 minutes, in the case of the applicant’s opening submission:

    • (b) 15 minutes, in the case of the respondent’s submission:

    • (c) 5 minutes, in the case of the applicant’s submission in reply.

    (2) In determining the application for leave, the Court must consider—

    • (a) the written submissions before it; and

    • (b) the matters raised at the hearing.

    (3) Subclause (1) is subject to any contrary direction given in a particular case by a Judge.

    Compare: SR 2004/199 r 24

Applications for leave where respondent consents

26 Respondent consents to application for leave
  • (1) If the respondent consents to the application for leave to appeal, the respondent must, within the time specified in subclause (2), file and serve a memorandum notifying that consent.

    (2) The time is 10 working days after the date on which the copy of the application for leave is served on the respondent.

    (3) The Registrar must promptly submit the application for leave and the memorandum referred to in subclause (1) to a Judge for directions on how the application is to be dealt with.

    (4) The Judge may give a direction that—

    • (a) modifies, or dispenses with, any of the steps for an application for leave that are set out in rules 22 to 25; and

    • (b) the application for leave is—

      • (i) to be heard orally; or

      • (ii) to be determined by the Court on the papers.

    (5) If the Judge gives a direction under subclause (4)(b)(i) that the application for leave is to be heard orally,—

    • (b) rules 22 to 25 apply subject to any directions given by the Judge under subclause (4)(a).

    (6) If the Judge gives a direction under subclause (4)(b)(ii) that the application for leave is to be determined by the Court on the papers,—

    • (a) the Court may consider and determine the application for leave in any manner it thinks fit; and

    • (b) rules 22 and 23 apply subject to any directions given by the Judge under subclause (4)(a).

Abandonment of applications for leave

  • Heading: inserted, on 1 January 2011, by rule 4 of the Court of Appeal (Civil) Amendment Rules 2010 (SR 2010/392).

26A Abandonment of applications for leave
  • (1) An applicant for leave to appeal may, at any time, abandon an application by filing in the Registry a notice advising that the applicant—

    • (a) does not intend to pursue the application further; and

    • (b) abandons any right to prosecute the application and the proposed appeal.

    (2) The notice must be signed by—

    • (a) the applicant personally; or

    • (b) the applicant's solicitor or counsel.

    (3) The abandonment of an application does not affect the power of the Court or a Judge to make any order as to costs in respect of the application.

    Rule 26A: inserted, on 1 January 2011, by rule 4 of the Court of Appeal (Civil) Amendment Rules 2010 (SR 2010/392).

26B Effect of failing to pay fees of Court
  • (1) This rule applies when the Registrar or a Judge determines that the fee payable on filing an application for leave to appeal is not to be waived and the applicant for leave to appeal then fails to comply with regulation 7(2)(a) of the Court of Appeal Fees Regulations 2001.

    (2) When this rule applies, the application for leave to appeal is to be treated as abandoned on the expiry of 2 months from the later of the date of the determination of—

    • (a) the Registrar, under regulation 5 of the Court of Appeal Fees Regulations 2001; or

    • (b) the Judge, under section 100B of the Judicature Act 1908, in circumstances where the applicant for leave to appeal exercised the right to review the Registrar's decision.

    (3) A Judge, on application made within 20 working days of the date on which the application for leave to appeal was treated as abandoned under subclause (2), may, if the interests of justice so require, reinstate the application for leave to appeal, but only if the fee has been paid before the application under this subclause is made.

    (4) This rule is subject to section 100B of the Judicature Act 1908 but overrides rules 5(2) and 6.

    Rule 26B: inserted, on 1 January 2011, by rule 4 of the Court of Appeal (Civil) Amendment Rules 2010 (SR 2010/392).

Determination of applications for leave

27 Determination of application for leave
  • (1) The Court may—

    • (a) give leave to appeal; or

    • (b) refuse to give leave to appeal.

    (2) If the Court gives leave to appeal,—

    • (a) the Court may make the leave subject to any conditions that it considers appropriate, including conditions relating to security for costs; and

    • (b) the Court need not give its reasons for giving leave.

    (3) If the Court refuses to give leave to appeal, it must state its reasons for refusing to give leave to appeal, but those reasons may be stated briefly and in general terms only.

    (4) The Court may refuse to give the appellant leave to appeal but may give the respondent leave to cross-appeal, in which case the party who, before the giving of that leave, was the respondent must then be treated as the appellant.

    (5) The Registrar must promptly advise the parties and the Registrar of the court appealed from whether or not leave has been given.

Part 3
Appeals

Application of Part

28 Application of this Part
  • This Part applies to—

    • (a) appeals to the Court as of right; and

    • (b) appeals to the Court where leave to appeal has been given, except where these rules provide otherwise.

Commencement of appeals

29 Time for appeal
  • (1) A party must bring an appeal,—

    • (a) in the case of an appeal to the Court as of right, within 20 working days after the date of the decision against which the party wishes to appeal; or

    • (b) in the case of an appeal where leave to appeal or, as the case may be, cross-appeal has been given by the court appealed from or by the Court,—

      • (i) within the time specified by that court or by the Court when giving leave; or

      • (ii) if no time was specified by that court or by the Court, within 20 working days after the date of the decision giving leave.

    (2) A party who is entitled to bring a cross-appeal to the Court as of right and who wishes to bring the cross-appeal must bring the cross-appeal within 10 working days after the date on which a copy of the notice of appeal is served on the party.

    (3) For the purposes of subclause (1), the date of the decision is the date on which the decision is given,—

    • (a) whether reasons for the decision are then given or are given later; or

    • (b) whether or not formal steps, such as entering or sealing the decision, are necessary or are taken after the decision is given.

    (4) [Revoked]

    Rule 29(4): revoked, on 1 July 2008, by rule 6 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

29A Extension of time for appealing
  • (1) If the appeal period prescribed by an enactment or the period prescribed by rule 29(1) or (2) has expired, a party who wishes to appeal may apply for an extension of time in which to appeal.

    (2) If the other party consents to an extension of time and signifies that consent on an application to extend time, the Court or a Judge may—

    • (a) grant an extension of time in which to appeal; or

    • (b) direct that the application be dealt with as if it were an application for leave to appeal under Part 2 to which consent has been given in terms of rule 26.

    (3) If the Court or a Judge grants an extension of time under subclause (2)(a), the party wishing to appeal must bring the appeal—

    • (a) within the time specified by the Court or the Judge when granting the extension; or

    • (b) if no time is specified by the Court or the Judge, within 20 working days after the day of the decision granting the extension of time.

    (4) If the other party does not consent to an extension of time, the party wishing to appeal must apply under Part 2 for an extension of time in which to appeal.

    (5) An application under subclause (4) must be made and treated as if it were an application under Part 2 for leave to appeal, and Part 2 applies with all necessary modifications.

    Rule 29A: inserted, on 1 July 2008, by rule 7 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

30 Form of appeal
  • (1) A notice of appeal or cross-appeal must be in form 2 of Schedule 1 or in a form to similar effect.

    (2) If a notice of appeal or cross-appeal is defective, a Judge may require the party who has filed the notice to remedy the defect within a specified period of not less than 10 working days.

    (3) If the defect is not remedied within the specified period, the appeal is to be treated as having been abandoned.

    Rule 30(1): amended, on 1 July 2008, by rule 11 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

    Rule 30(2): added, on 1 April 2008, by rule 6 of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

    Rule 30(3): added, on 1 April 2008, by rule 6 of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

31 Mode of bringing appeal
  • (1) An appeal is brought only when—

    • (a) the appellant files the notice of appeal in the Registry—

      • (i) by delivering it by hand to the Registry; or

      • (ii) by sending it by mail to a postal address published by the Registrar; and

    • (b) a copy of the notice of appeal is served on every person who is a party to the proceeding in the court appealed from.

    (2) The appellant is responsible for serving the notice of appeal.

    (3) The Registrar must promptly—

    • (a) transmit a copy of the notice of appeal to the Registrar of the court appealed from; and

    • (b) advise the Registrar of that court of the date on which the notice of appeal was filed in the Registry.

    (4) If the appeal relates only to a part of the decision concerned, that part must be identified in the notice of appeal.

    (5) A notice of appeal is not required if the proceeding is a case stated under the authority of an enactment or is a proceeding removed from the High Court under section 64 of the Judicature Act 1908.

    Compare: SR 1997/180 r 7

32 Mode of bringing cross-appeal
  • (1) A cross-appeal is brought only when—

    • (a) the respondent files the notice of cross-appeal in the Registry—

      • (i) by delivering it by hand to the Registry; or

      • (ii) by sending it by mail to a postal address published by the Registrar; and

    • (b) a copy of the notice of cross-appeal is served on every person who is a party to the proceeding in the court appealed from.

    (2) The respondent is responsible for serving the notice of cross-appeal.

    (3) The Registrar must promptly—

    • (a) transmit a copy of the notice of cross-appeal to the Registrar of the court appealed from; and

    • (b) advise the Registrar of that court of the date on which the notice of cross-appeal was filed in the Registry.

    (4) If the cross-appeal relates only to a part of the decision concerned, that part must be identified in the notice of cross-appeal.

    Compare: SR 1997/180 r 8

33 Respondent who intends to support decision appealed against on other ground
  • (1) If the respondent intends to support the decision appealed against on a ground other than the one upon which it was based, the respondent must, within the time specified in subclause (2), file and serve a memorandum setting out the ground upon which the respondent intends to support the decision appealed against.

    (2) The time is 10 working days after the date on which the appellant’s notice of appeal is served on the respondent.

    (3) If the respondent brings a cross-appeal, the memorandum referred to in subclause (1) may be included in the notice of cross-appeal.

34 Amendment of grounds of appeal
  • (1) An appellant may amend the grounds of appeal by filing and serving a memorandum amending those grounds.

    (2) However, the grounds of appeal may be amended only by leave of the Court if—

    • (a) the Registrar has allocated a hearing date under rule 38; or

    • (b) the appeal to the Court has been brought by leave.

    (3) The leave of the Court to amend the grounds of appeal is not required under subclause (2) if the other party consents to the amendment of those grounds.

Steps to be taken before hearing

35 Security for costs: general
  • (1) This rule applies to every appeal except—

    • (a) an appeal to which rule 36 applies; and

    • (b) an appeal where the Court has fixed security for costs under rule 27(2)(a).

    (2) The appellant in an appeal to which this rule applies must, within the time specified in subclause (3), pay to the Registrar security for the respondent’s costs in the Court.

    (3) The time is 20 working days after the notice of appeal has been filed in the Registry.

    (4) If there is more than 1 respondent, each of them is entitled to security for their costs in the Court (unless they have the same solicitor, in which case they must be treated, for the purposes of calculating the amount of security, as a single respondent).

    (5) The amount of security payable under subclause (2) is—

    2 × a

    where—

    • a is the daily recovery rate for category 3 proceedings that is specified in Schedule 2 of the High Court Rules.

    (6) However, the Registrar may, on application, if satisfied that the circumstances warrant it, make an order—

    • (a) increasing the amount of security:

    • (b) reducing the amount of security:

    • (c) dispensing with security:

    • (d) deferring the date by which security must be paid.

    (7) An application under subclause (6)—

    • (a) must be made and served within 20 working days after the notice of appeal has been filed in the Registry; and

    • (b) may be made on an informal basis.

    (8) The Registrar must notify the respondent as soon as—

    • (a) the appellant pays security:

    • (b) an order is made under subclause (6).

    (9) If a respondent has brought a cross-appeal, this rule and rules 36 and 37 must be read as if references to—

    • (a) an appellant were references to that respondent; and

    • (b) the appeal were references to the cross-appeal; and

    • (c) the respondent were references to the respondent on the cross-appeal.

    Compare: SR 1997/180 r 11

36 Security for costs: legal aid
  • (1) This rule applies to every appeal in which the appellant has applied for, or been granted, legal aid at the time the appeal is brought.

    (2) An appellant who has been granted legal aid at the time the appeal is brought does not need to pay security for the respondent’s costs in the Court.

    (3) An appellant whose application for legal aid has not been determined at the time the appeal is brought does not need to pay security for the respondent’s costs in the Court while that application is pending.

    (4) As soon as the application is determined, the appellant must promptly give the Registrar and the respondent written advice of the outcome.

    (5) If the application is granted, the appellant does not need to pay security for the respondent’s costs in the Court.

    (6) If the application is declined, rule 35 applies to the appeal with the following (and any other necessary) modifications:

    • (a) the time specified in rule 35(3) within which the appellant must pay to the Registrar security for the respondent’s costs in the Court is 20 working days after the date on which the appellant’s application for legal aid is declined; and

    • (b) the time specified in rule 35(7)(a) within which an application to the Registrar may be made for the making of an order under rule 35(6) is 20 working days after the date on which the appellant’s application for legal aid is declined.

37 Consequences of failure to comply with requirement to pay security for costs
  • (1) The Court may, on application, make an order striking out an appeal if security for costs is not paid by the time payment is due.

    (2) The appellant may not apply for the allocation of a hearing date under rule 38(1) if the appellant is in default of any obligation to pay security for costs.

38 Allocation of hearing date
  • (1) A party may, at any time, apply to the Registrar for the allocation of a hearing date.

    (2) Subclause (1) is subject to rule 37(2).

    (3) The party applying to the Registrar for the allocation of a hearing date (the applicant) must, at the same time, supply to the Registrar—

    • (a) a copy of the decision appealed against, unless the case on appeal has already been filed or is being simultaneously filed; and

    • (b) written advice of the estimated time of hearing, which must be expressed as follows:

      • (i) 1 hour or less:

      • (ii) 2 hours or less:

      • (iii) one day (4.5 hours):

      • (iv) more than 1 day (specifying number of days); and

    • (c) if applicable, a request for the appeal to be heard by a Court of 5 Judges, giving reasons for that request.

    (4) The applicant must promptly serve the other party with a copy of—

    • (a) the application under subclause (1); and

    • (b) any advice or request under subclause (3)(b) or (c).

    (5) The Registrar must—

    • (a) after consultation with the parties, allocate a hearing date; and

    • (b) give the parties written notification of that hearing date; and

    • (c) if a request was made under subclause (3)(c), advise whether the request was granted.

    (6) If an appeal is to be heard by a Court of 5 Judges, rules 40(1), 41(1), and 42(1) and (2) must be read as if the references to 4 copies were references to 6 copies.

    (7) This rule is subject to rule 43.

    Compare: SR 1997/180 r 12; SR 2004/199 r 32

39 Obligations of parties in preparing case on appeal
  • (1) The appellant must prepare the case on appeal in consultation with the respondent.

    (2) The parties may not include in the case on appeal any document that is not relevant to the grounds to be argued on the appeal.

    (3) The parties must endeavour to avoid the unnecessary duplication of documents.

    (4) If the parties do not agree on whether a document should be excluded, the document must be included but the fact of the disagreement must be noted and may be taken into account for the purpose of fixing costs.

    Compare: SR 2004/199 r 34

40 Filing and form of case on appeal
  • (1) The appellant must—

    • (a) file in the Registry 4 copies of the case on appeal; and

    • (b) as soon as practicable after complying with paragraph (a), serve a copy of the case on appeal on the other party.

    (2) The case on appeal must be filed on the earlier of—

    • (a) a date not later than 30 working days before the date allocated for the hearing of the appeal; or

    • (b) a date that is within 3 months after the appeal is brought.

    (3) The pages contained in a case on appeal must be A4 in size and every page must be numbered consecutively from volume to volume.

    (4) Each volume must—

    • (a) be bound by cloth binding or by a flexibinding or a spiral binding process; and

    • (b) be limited to a maximum of 250 pages; and

    • (c) have a title page as the cover showing—

      • (i) a heading; and

      • (ii) the names of the solicitors; and

      • (iii) the address for service of each party; and

    • (d) have a table of contents that—

      • (i) appears immediately after the title page; and

      • (ii) consists of a complete list of all documents contained in the case on appeal.

    (5) If there is more than 1 volume, there is to be a separate volume containing only—

    • (a) the notice of appeal or the order or orders of the court giving leave:

    • (b) the notice of cross-appeal (if any):

    • (c) the pleadings:

    • (d) all relevant decisions that have been made in the proceeding:

    • (e) any separate reasons for the decisions described in paragraph (d):

    • (f) all relevant orders made in the proceeding.

    (6) If the period commencing on 25 December in one year and ending on 15 January in the next year includes any days in the 3-month period calculated in accordance with subclause (2)(b), that 3-month period is extended by the number of those days.

    Rule 40: substituted, on 1 April 2008, by rule 7 of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

    Rule 40(2)(b): amended, on 1 July 2013, by rule 4(1) of the Court of Appeal (Civil) Amendment Rules 2013 (SR 2013/209).

    Rule 40(6): inserted, on 1 July 2013, by rule 4(2) of the Court of Appeal (Civil) Amendment Rules 2013 (SR 2013/209).

40A Reuse of case on appeal used for leave application
  • (1) If a case on appeal was prepared for the hearing of an application for leave, that case may be reused for the hearing of the appeal—

    • (a) if the Registrar so approves; and

    • (b) subject to any directions that the Registrar or a Judge may impose.

    (2) If subclause (1)(a) applies, a supplementary case on appeal may be prepared containing additional documents relevant to the appeal but which were not relevant to the application for leave.

    Rule 40A: inserted, on 1 April 2008, by rule 7 of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

40B Evidence included in case on appeal
  • (1) If the appeal involves a question of fact, the evidence on the question that was taken in the court appealed from must be included in the case on appeal by showing—

    • (a) in a volume the evidence given by witnesses (in this rule and in rules 40C and 40D called the evidence volume); and

    • (b) in another volume any related exhibits (in this rule and in rules 40C and 40D called the exhibits volume).

    (2) Only evidence that is relevant to an issue in the appeal may be shown in the evidence volume or the exhibits volume.

    (3) The fact that a witness’s evidence or an exhibit has been omitted from the evidence volume or the exhibits volume does not prevent a party from referring to that evidence or exhibit at the hearing of the appeal.

    Rule 40B: inserted, on 1 April 2008, by rule 7 of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

40C Evidence volume
  • (1) The evidence volume must set out the evidence of witnesses in the order in which the evidence was given and must, for each witness, set it out in the following order:

    • (a) copies of whichever of the following are applicable:

      • (i) affidavits:

      • (ii) written statements:

      • (iii) transcripts of oral evidence in chief:

    • (b) transcripts of supplementary evidence in chief (if any):

    • (c) transcripts of cross-examination (if any):

    • (d) transcripts of re-examination (if any).

    (2) A copy of an affidavit that is included under subclause (1)(a)(i) must be stripped of any exhibits.

    (3) If, in an affidavit or in a written statement included under subclause (1)(a), a witness has produced or referred to an exhibit, the affidavit or statement must be marked, in the margin next to the relevant passage, with a cross-reference to the page in the exhibits volume where that exhibit is shown.

    (4) The index to the evidence volume must refer, by page number, to the commencement of the evidence in chief, cross-examination, and re-examination of each witness.

    Rule 40C: inserted, on 1 April 2008, by rule 7 of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

40D Exhibits volume
  • (1) The exhibits volume must set out the exhibits in the following order:

    • (a) if there was a common bundle of documents, the exhibits included in that bundle, in the order in which they were included in that bundle:

    • (b) other exhibits, in chronological order, or any other order that is logical for the appeal.

    (2) The index to the exhibits volume must show the following details for each exhibit:

    • (a) the date of the exhibit:

    • (b) a brief description of the exhibit:

    • (c) the witness who produced the exhibit, unless the exhibit was in the common bundle of documents:

    • (d) a cross-reference, by page number, to the evidence volume where—

      • (i) the production of the exhibit is recorded; or

      • (ii) if the exhibit was included in the bundle of documents, the first reference to the exhibit is recorded:

    • (e) the number of the page in the exhibits volume where the exhibit commences.

    Rule 40D: inserted, on 1 April 2008, by rule 7 of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

41 Written submissions on appeals
  • (1) Each party to an appeal must file in the Registry 4 copies of the party’s written submissions, which must be contained in a document of not more than 30 pages, using 1.5 line spacing, that sets out—

    • (a) at the beginning of the document, a summary of the argument; and

    • (b) a narrative of facts relevant to the issues on appeal; and

    • (c) the party’s submissions, including submissions as to costs; and

    • (d) at the end of the document, a list of authorities to be cited by the party.

    (2) The appellant’s written submissions must, whenever appropriate, be accompanied by a chronology; but if counsel are unable to agree on the chronology, the respondent must include, with the respondent’s written submissions, a memorandum detailing areas of disagreement.

    (3) The appellant’s written submissions must be filed and served on the other party not later than 20 working days before the date allocated for the hearing of the appeal.

    (4) The respondent’s written submissions must be filed and served on the other party not later than 10 working days before the date allocated for the hearing of the appeal.

    (5) In any case where a respondent has brought a cross-appeal—

    • (a) the respondent is to be treated as the appellant for the purposes of subclause (3); and

    • (b) the appellant is to be treated as the respondent for the purposes of subclause (4).

    (6) This rule is subject to any contrary direction given by the Court in a particular case.

    Compare: SR 2004/199 r 36

    Rule 41(1): amended, on 1 April 2008, by rule 8(1) of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

    Rule 41(1)(c): substituted, on 1 April 2008, by rule 8(2) of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

42 Bundle of authorities
  • (1) The appellant must, at the time of filing the appellant’s written submissions under rule 41(1),—

    • (a) file in the Registry 4 copies of a bundle of authorities that consists only of the authorities that the appellant considers essential to the appellant’s case; and

    • (b) serve a copy of the bundle on the other party.

    (2) If any authorities that the respondent considers essential to the respondent’s case are not included in the bundle filed under subclause (1), the respondent must, at the time of filing the respondent’s written submissions under rule 41(4),—

    • (a) file in the Registry 4 copies of a bundle of those authorities; and

    • (b) serve a copy of the bundle on the other party.

    (3) If an official report (for example, NZLR, CLR, AC, SCR) of a case is available, that report is to be used for the bundle of authorities.

    (4) A bundle of authorities under subclause (1) or subclause (2) must be filed in the Registry—

    • (a) by delivering it to the Registry by hand; or

    • (b) by sending it to the Registry by mail to a postal address published by the Registrar.

    (5) A bundle of authorities under subclause (1) or subclause (2) must be served—

    • (a) by delivering it by hand to the other party’s address for service; or

    • (b) by sending it by mail to the postal address supplied by the other party for the purposes of the appeal.

    Compare: SR 2004/199 r 37

42A Issues
  • (1) The parties to an appeal must attempt to agree on a list of issues to be determined on the appeal.

    (2) If the parties reach agreement, the appellant must, not later than 5 working days before the date allocated for the hearing of the appeal, file and serve on the other party the agreed list of the issues.

    (3) If the parties cannot reach agreement, each party must, not later than 5 working days before the date allocated for the hearing of the appeal, file and serve on the other party a list of the issues as the filing party perceives them to be.

    (4) This rule is subject to any contrary direction given by the Court in a particular case.

    Rule 42A: inserted, on 1 April 2008, by rule 9 of the Court of Appeal (Civil) Amendment Rules 2008 (SR 2008/17).

Termination before hearing

43 Appeal abandoned if not pursued
  • (1) An appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within 3 months after the appeal is brought.

    (2) The Court, on application, may—

    • (a) grant an extension of the period referred to in subclause (1); and

    • (b) grant 1 or more further extensions of any extended period.

    (3) An application for the grant of an extension may be made before the expiry of the period to which the application relates or within 3 months after that expiry; but no extension may be granted on an application that is made later than 3 months after that expiry.

    (4) This rule overrides rules 5(2) and 6.

    (5) If any days in the period commencing on 25 December in one year and ending on 15 January in the next year are comprised in the 3-month period calculated in accordance with subclause (1) or subclause (3), that 3-month period is extended by the number of those days.

    Compare: SR 1997/180 r 10; SR 2004/199 r 38

    Rule 43(1): replaced, on 4 February 2013, by rule 4(1) of the Court of Appeal (Civil) Amendment Rules 2012 (SR 2012/404).

    Rule 43(5): inserted, on 4 February 2013, by rule 4(2) of the Court of Appeal (Civil) Amendment Rules 2012 (SR 2012/404).

44 Abandonment of appeal by party
  • (1) A party may, at any time, abandon an appeal brought by the party by filing in the Registry a notice advising that the party—

    • (a) does not intend to prosecute the appeal further; and

    • (b) abandons all further proceedings concerning that appeal.

    (2) The notice must be signed by—

    • (a) the party personally; or

    • (b) the party’s solicitor or counsel.

    (3) The abandonment of an appeal does not affect the power of the Court to make any order as to costs in respect of the appeal.

    Compare: SR 2004/199 r 39

Matters of evidence and information

45 Application for leave to adduce further evidence
  • (1) The Court may, on the application of a party, grant leave for the admission of further evidence on questions of fact by—

    • (a) oral examination in Court; or

    • (b) affidavit; or

    • (c) depositions taken before an examiner or examiners in accordance with rules 369 to 376 of the High Court Rules.

    (2) The parties and their counsel are entitled to be present at, and take part in, the examination of a witness.

    Compare: SR 1997/180 r 24; SR 2004/199 r 40

46 Court may call for exhibits, etc, and request report from court or tribunal of first instance
  • (1) The Court may require the court or tribunal of first instance or the court appealed from to provide the Court with any document, exhibit, or thing produced in or connected with the proceeding.

    (2) The Registrar must, if the Court so directs, request the Judge of the court of first instance or the presiding officer of the tribunal to provide the Court with any report in writing requested by the Court.

    (3) The Registrar must disclose the report—

    • (a) to the parties unless the Court otherwise directs; and

    • (b) to any other person on the direction of the Court.

    (4) To enable the Judge or presiding officer to prepare the report, the Registrar must provide the Judge or presiding officer with any document concerning the proceeding and in the Registrar’s possession if—

    • (a) the Judge or presiding officer requests the document; or

    • (b) the Court directs the Registrar to provide the document.

    Compare: SR 2004/199 r 41

Part 4
Determination of appeals

47 Appeals to be by way of rehearing
  • All appeals are to be by way of rehearing.

    Compare: SR 1997/180 r 18

48 Powers of Court in hearing appeals
  • (1) The Court may—

    • (a) direct the service of a notice of appeal or cross-appeal on—

      • (i) a party to the proceeding appealed from who has not been served; or

      • (ii) a person who is not a party; and

    • (b) in the meantime, postpone or adjourn the hearing of the appeal on any terms that may seem just, and give any judgment and make any orders that might have been given or made if the persons served in this manner had originally been parties.

    (2) The Court has all the powers and duties of the court of first instance concerning procedure, including the amendment of pleadings.

    (3) The Court may draw inferences of fact.

    (4) The Court may give any judgment and make any order which ought to have been given or made, and make any further or other orders that the case may require.

    (5) The powers of the Court may be exercised—

    • (a) even though the notice of appeal or cross-appeal may state that only part of a decision is appealed from; and

    • (b) in favour of all or any respondents or parties although they may not have appealed from the decision or contended that it should be varied; and

    • (c) despite any interlocutory ruling or order that has not been appealed.

    (6) Nothing in this rule limits any other powers of the Court.

    Compare: SR 1997/180 r 19

49 Delivery of judgment
  • (1) The Court may—

    • (a) deliver its judgment orally; or

    • (b) reserve its judgment.

    (2) A judgment that is delivered orally is given when a Judge or Judges deliver it in open Court.

    (3) A judgment that is reserved may be delivered—

    • (a) in open Court; or

    • (b) through the Registrar.

    (4) If subclause (3)(a) applies,—

    • (a) a Judge who was a member of the Court that heard the appeal must nominate and record on the judgment a date and time when the judgment will be delivered (delivery time):

    • (b) as soon as the Registrar is informed of the delivery time, the Registrar must attempt to notify the parties, by telephone or otherwise, of the fact that the Court intends to deliver the judgment in open Court and of the delivery time:

    • (c) any 2 Judges of the Court (whether or not members of the Court that heard the appeal) may, at the delivery time, deliver the judgment on behalf of the Court:

    • (d) the parties do not need to appear or be represented when the judgment is delivered:

    • (e) the judgment is given when it is delivered in open Court.

    (5) If subclause (3)(b) applies,—

    • (a) a Judge who was a member of the Court that heard the appeal must nominate and record on the judgment a date and time when the judgment will be delivered (delivery time):

    • (b) as soon as the Registrar is informed of the delivery time, the Registrar must attempt to notify the parties, by telephone or otherwise, of the fact that the Court intends to deliver the judgment through the Registrar and of the delivery time:

    • (c) the judgment must for all purposes be treated as having been given at the delivery time.

    (6) The Registrar must, if requested to do so by a party,—

    • (a) send to the party immediately after the delivery time or, in the case of a judgment delivered orally, as soon as practicable after the judgment is transcribed, a copy of the judgment by email or facsimile or post; or

    • (b) make a copy of the judgment available for collecting from the Registry immediately after the delivery time or, in the case of a judgment delivered orally, as soon as practicable after the judgment is transcribed.

    (7) If a party who has given an address for service does not make a request under subclause (6), the Registrar must immediately after the delivery time, or in the case of a judgment delivered orally as soon as practicable after the judgment is transcribed, post a copy of the judgment to that party.

    (8) A failure by the Registrar to comply with subclause (4)(b), (5)(b), (6), or (7) does not affect the validity of the judgment or its delivery time.

    (9) A copy of the judgment signed by at least 1 Judge who was a member of the Court that heard the appeal must be retained by the Registry.

    (10) This rule applies to judgments on appeals and applications for leave to appeal. The rule does not apply to minutes, interlocutory orders, or directions.

    Rule 49: substituted, on 7 August 2006, by rule 7 of the Court of Appeal (Civil) Amendment Rules 2006 (SR 2006/181).

50 Notification of result of appeal to other courts
  • The Registrar must, promptly after the result of an appeal is known, notify that result to the Registrar of the court appealed from and to the Registrar of any other court or tribunal that determined a matter in the proceeding.

    Compare: SR 1997/180 r 23; SR 2004/199 r 43

51 Judgments to be sealed, dated, and served
  • (1) Every judgment must be drawn up in a form approved by the Registrar, who must seal it with the seal of the Court.

    (2) Form 3 of Schedule 1 may be used.

    (3) A judgment may be sealed—

    • (a) in accordance with a direction given by the Court relating to the sealing of the judgment; or

    • (b) if no direction is given, at any time after the judgment has been given.

    (4) Despite subclause (3)(b), a judgment may not be sealed, except with the leave of the Court, if there is an existing application for the recall or reopening of the judgment that has not been determined.

    (5) A sealed judgment must state—

    • (a) the date on which, in accordance with rule 49, the judgment is given; and

    • (b) the date on which it is sealed.

    (6) Neither the parties nor their representatives have a right to appear before the Court on an application for the recall or reopening of a judgment, but the Court may, if it thinks fit, authorise the parties, their representatives, or both, to appear.

    Rule 51(2): amended, on 1 July 2008, by rule 11 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

52 When judgment takes effect
  • (1) A judgment takes effect when it is given.

    (2) Unless a Judge otherwise directs, no step may be taken on a judgment before it has been sealed.

    (3) A party may apply for leave to appeal to the Supreme Court even though the judgment sought to be appealed against has not been sealed, as long as the party takes steps to ensure that the judgment is sealed promptly after the application for leave is filed.

    (4) In this rule—

    • (a) subclause (2) overrides subclause (1):

    • (b) subclause (3) overrides subclause (2).

53 Costs at discretion of Court
  • The Court may, in its discretion, make any orders that seem just concerning the whole or any part of the costs and disbursements of—

    • (a) an appeal; or

    • (b) an application for leave to appeal.

    Rule 53: substituted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53A Principles applying to determination of costs
  • Subject to the overriding discretion conferred on the Court by rule 53, in making awards of costs the Court should normally be guided by the following general principles:

    • (a) the party who fails with respect to an appeal should pay costs to the party who succeeds:

    • (b) an award of costs should reflect the complexity and significance of the appeal:

    • (c) costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the appeal:

    • (d) an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the appeal:

    • (e) what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the actual solicitor or counsel involved, or on the time actually spent by the solicitor or counsel involved, or on the costs actually incurred by the party claiming costs:

    • (f) an award of costs should not exceed the costs incurred by the party claiming costs:

    • (g) so far as possible, the determination of costs should be predictable and expeditious.

    Compare: 1908 No 89 Schedule 2 r 47

    Rule 53A: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53B Categorisation of appeals
  • (1) For the purposes of rule 53A(b), appeals may be classified as falling within one of the following 2 categories:

    • (a) standard appeals, which are appeals of average complexity requiring counsel of skill and experience considered average in the Court of Appeal:

    • (b) complex appeals, which are appeals that because of their complexity or significance require senior counsel.

    (2) The Court or a Judge may at any time determine in advance the applicable category in relation to an appeal.

    Compare: 1908 No 89 Schedule 2 r 48

    Rule 53B: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53C Appropriate daily recovery rates
  • (1) For the purposes of rule 53A(c), the following are the appropriate daily recovery rates for the categories of appeal referred to in rule 53B:

    • (a) for a standard appeal, the current rate for a category 2 proceeding in the High Court, as set out in Schedule 2 of the High Court Rules:

    • (b) for a complex appeal, the current rate for a category 3 proceeding in the High Court, as set out in Schedule 2 of the High Court Rules, together with any uplift of up to 50% that the Court considers appropriate.

    (2) If the rate for a category 2 or 3 proceeding in the High Court Rules is altered by amendment to the High Court Rules, the new rate applies under these rules on and from the date the alteration comes into force.

    (3) The appropriate daily recovery rates are calculated, in accordance with the principle referred to in rule 53A(d), on the basis of being two-thirds of the actual daily rates referred to in that paragraph.

    Compare: 1908 No 89 Schedule 2 r 48A

    Rule 53C: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53D Determination of reasonable time
  • (1) For the purposes of rule 53A(c), a reasonable time for a step in an appeal is—

    • (b) the time assessed as likely to be required for the particular step, if Schedule 2 does not apply.

    (2) A determination of what is a reasonable time for a step under subclause (1)(a) must be made by reference—

    • (a) to band A, if a normal amount of time for the particular step is considered reasonable; or

    • (b) to band B, if a comparatively large amount of time for the particular step is considered reasonable.

    Compare: 1908 No 89 Schedule 2 r 48B

    Rule 53D: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53E Increased costs and indemnity costs
  • (1) Despite rules 53A to 53D, the Court may make an order—

    • (a) increasing costs otherwise payable under those rules (increased costs); or

    • (b) that the costs payable are the actual costs and disbursements reasonably incurred by a party (indemnity costs).

    (2) The Court may order a party to pay increased costs if—

    • (a) the nature of the appeal or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band B; or

    • (b) the party opposing costs has contributed unnecessarily to the time or expense of the appeal or step in it by—

      • (i) failing to comply with these rules or a direction of the Court; or

      • (ii) taking or pursuing an unnecessary step or an argument that lacks merit; or

      • (iii) failing, without reasonable justification, to accept a legal argument; or

      • (iv) failing, without reasonable justification, to accept an offer to settle or dispose of the appeal; or

    • (c) the appeal concerned a matter of public interest and it was reasonably necessary for the party claiming costs to bring the appeal or participate in the appeal in the interests of the public or a section of the public; or

    • (d) some other reason exists which justifies the Court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.

    (3) The Court may order a party to pay indemnity costs if—

    • (a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending an appeal or a step in an appeal; or

    • (b) the party has ignored or disobeyed an order or direction of the Court or breached an undertaking given to the Court or another party; or

    • (c) costs are payable from a fund, the party claiming costs is a necessary party to the appeal affecting the fund, and the party claiming costs has acted reasonably in the appeal; or

    • (d) the person in whose favour the order of costs is made was not a party to the appeal and has acted reasonably in relation to it; or

    • (e) the party claiming costs is entitled to indemnity costs under a contract or deed; or

    • (f) some other reason exists which justifies the Court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.

    (4) If the Court makes an order that a party pay indemnity costs, it may order that the costs be subject to taxation (a taxation order).

    (5) If the Court makes a taxation order, the taxation must be carried out by the Registrar.

    (6) Rules 54 to 59 of the High Court Rules apply to any such taxation, with all necessary modifications.

    Compare: 1908 No 89 Schedule 2 r 48C

    Rule 53E: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53F Refusal of, or reduction in, costs
  • Despite rules 53A to 53D, the Court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

    • (a) the nature of the appeal or the step in the appeal is such that the time required by the party claiming costs will be substantially less than the time allocated under band A; or

    • (b) the property or interests at stake in the appeal were of exceptionally low value; or

    • (c) the issues at stake were of little significance; or

    • (d) although the party claiming costs has succeeded overall, that party has failed in relation to an issue which significantly increased the costs of the party opposing costs; or

    • (e) the appeal concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the appeal; or

    • (f) the party claiming costs has contributed unnecessarily to the time or expense of the appeal or step in it by—

      • (i) failing to comply with these rules or a direction of the Court; or

      • (ii) taking or pursuing an unnecessary step or an argument that lacks merit; or

      • (iii) failing, without reasonable justification, to accept a legal argument; or

      • (iv) failing, without reasonable justification, to accept an offer to settle or dispose of the appeal; or

    • (g) some other reason exists which justifies the Court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

    Compare: 1908 No 89 Schedule 2 r 48D

    Rule 53F: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53G Principles applying to costs on application for leave to appeal
  • (1) If the Court refuses to give leave to appeal, the applicant will normally be liable for costs in accordance with the principle stated in rule 53A(a).

    (2) If the need for an application for leave to appeal arises from a default on the applicant’s part, the respondent will normally be entitled to costs with respect to the application at the time it is determined, unless the respondent’s opposition to it was in the circumstances unreasonable, in which case there will normally be no order as to costs.

    (3) If the need for an application for leave to appeal does not arise from a default on the applicant’s part and the Court gives leave to appeal, the Court will normally reserve costs pending the outcome of the appeal.

    (4) If the Court gives leave to appeal but the appeal is subsequently dismissed, the respondent will normally be entitled to costs with respect to the application for leave to appeal (if reserved).

    (5) The following provisions apply where an appeal is allowed following a determination by the Court to give leave and to reserve costs with respect to the application for leave to appeal (the application):

    • (a) if the respondent consented to the application, the respondent will normally be entitled to costs with respect to the application:

    • (b) if the respondent opposed the application, there will normally be no award of costs with respect to the application, unless the respondent’s opposition was in the circumstances unreasonable, in which case the respondent will normally be liable for costs with respect to the application.

    (6) In this rule, an application for leave to appeal includes an application for an extension of time under rule 29A.

    Rule 53G: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53H Disbursements
  • (1) The Court may direct the Registrar to exercise the Court’s powers to order a party (party A) to pay another party (party B) disbursements.

    (2) If the Court orders party A to pay party B usual disbursements, the order—

    • (a) encompasses—

      • (i) party B’s disbursements as defined in rule 48H(1) of the High Court Rules; and

      • (ii) party B’s counsel’s reasonable travelling and accommodation expenses; and

    • (b) is taken to empower the Registrar to fix the types and amounts of disbursements if the parties are unable to agree on them.

    Rule 53H: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53I Joint and several liability for costs
  • The liability of each of 2 or more parties ordered to pay costs is joint and several, unless the Court otherwise directs.

    Compare: 1908 No 89 Schedule 2 r 50

    Rule 53I: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

53J Costs in court appealed from
  • Nothing in rules 53 to 53I affects the Court’s powers with respect to quashing or varying any orders for costs made in the court appealed from.

    Rule 53J: inserted, on 1 July 2008, by rule 8 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

54 Repayment of judgment sum and interest
  • (1) If an appellant has, in accordance with a judgment of a court appealed from, paid a judgment debt and any interest payable on that debt, and the appellant successfully appeals from that judgment, the Court may make the orders described in subclause (2).

    (2) The Court may, in its discretion, make any orders that seem just concerning—

    • (a) the repayment of the amount paid by the appellant; and

    • (b) the payment of interest to the appellant on the amount paid by the appellant under the judgment during the period commencing on the date of the payment and ending with the date of the repayment.

    Compare: SR 1997/180 r 22; SR 2004/199 r 45

Part 5
Revocation and transitional provision

55 Revocation
  • The Court of Appeal (Civil) Rules 1997 are revoked.

56 Transitional provision
  • (1) These rules apply to—

    • (a) all existing proceedings; and

    • (b) all proceedings brought on or after the date of commencement of these rules.

    (2) Despite subclause (1)(a), these rules do not apply to an existing proceeding if the Registrar or a Judge, on an application made in accordance with subclause (4), considers that the application of these rules to the proceeding, or to any particular matter or step in the proceeding, would lead to an unjust result.

    (3) If these rules do not apply to an existing proceeding, the Court of Appeal (Civil) Rules 1997 (as in force immediately before the commencement of these rules) apply—

    • (a) despite their revocation by rule 55; and

    • (b) as if these rules had not been made.

    (4) An application under subclause (2) may be made on an informal basis.

    (5) In this rule, existing proceeding means a proceeding brought before the date of commencement of these rules.


Schedule 1
Forms

rr 15, 30, 51

Form 1
Application for leave to bring civil appeal

r 15

(Standard heading—see rule 9)

I, [full name], the applicant, give notice that I am applying for [special] leave to appeal to the Court against [state particulars of the decision against which you wish to appeal, including the date on which, and the court where, it was given].

I am seeking to appeal against [state whether you wish to appeal against all or part of the decision; if just part, identify that part].

I am making my application for [special] leave under section [number] of the [name] Act [year].

*I applied for leave to appeal to the Court of Appeal in the [name] Court, but that application was declined on [date].

The specific grounds of my appeal are [state grounds].

The Court of Appeal should grant me leave to appeal because [state reasons].

The judgment I seek from the Court of Appeal, if leave is granted, is [specify the form of judgment you seek].

I rely on the following affidavit(s) in support of my application for leave:

  • [list deponents, and the date on which each swore his or her affidavit].

*I am legally aided.

*I am not legally aided.

*I have applied for legal aid.

*Insert whichever is applicable.

Dated this [date] day of [month] [year].

...........................
Signature of appellant or
appellant’s solicitor or
counsel

My address for service is [insert address]:

...............................................

Notes
  • 1 In the case of an application for leave to cross-appeal, modify this form as appropriate.

  • 2 An application for leave must be accompanied by—

    • (a) a copy of the decision to which the appeal relates; and

    • (b) a copy of any separate reasons for the decision (if available); and

    • (c) if that decision was given on appeal, a copy of every decision previously given in the proceeding on matters of relevance to the appeal; and

    • (d) a copy of any separate reasons for every decision referred to in paragraph (c); and

    • (e) any affidavit relevant to the application.

Form 2
Notice of appeal

r 30

(Standard heading—see rule 9)

I, [full name], the appellant in the proceeding identified above, give notice that I am appealing to the Court against [state particulars of the decision against which you wish to appeal, including the date on which, and the court where, it was given; if that decision was given on appeal, also state particulars of every decision previously given in the proceeding on matters relevant to that appeal, and the date on which, and the court where, the decision (or each decision) was given].

  • 1 What are the specific grounds of your appeal?

    [If your appeal is brought by leave and the court giving leave has set out the grounds of, or questions on, appeal, those grounds or questions must be specified.]

  • 2 What judgment do you seek from the Court of Appeal?

*I am bringing this appeal pursuant to leave to appeal given by the [name of court] on [date].

*I am legally aided.

*I am not legally aided.

*I have applied for legal aid.

*Insert as applicable.

Dated this [date] day of [month] [year].

...........................
Signature of appellant or
appellant’s solicitor or
counsel

My address for service is [insert address]:

...............................................

Notes
  • 1 In the case of a cross-appeal, modify this form as appropriate.

  • 2 If the appeal or cross-appeal relates only to a part of the decision appealed against, that part must be identified in this notice: see rules 31(4) and 32(4).

  • 3 If you have applied for legal aid for this appeal, you must promptly give the Registrar written notice of the outcome of the application for legal aid.

Form 3
Judgment for sealing

r 51

(Standard heading—see rule 9)

At [time] on [date], the Court of Appeal of New Zealand, comprising the Honourable Justice [name], the Honourable Justice [name], and the Honourable Justice [name], delivered a judgment on an appeal from a decision of [court appealed from] given on [date of decision appealed against].

The Court of Appeal determined:

[state the terms of the judgment]

...........................
(Deputy) Registrar

Sealed on [date]:

Schedule 2
Time allocations

r 53D

  • Schedule 2: added, on 1 July 2008, by rule 10 of the Court of Appeal (Civil) Amendment Rules (No 2) 2008 (SR 2008/141).

Steps Allocated days or part days
   AB

Applications for leave to appeal*

   
1

Commencement of application for leave to appeal

 1.01.5
2

Commencement of application for leave to cross-appeal

 0.40.6
3

Preparation of memorandum of opposition to item 1 or 2

 0.20.5
4

Preparation for hearing of defended application

 1.02.0
5

Appearance at hearing of defended application

 

Appearance in Court measured in half days

6

Second and subsequent counsel if allowed by Court

 

50% of allowance for appearance for principal counsel

Applications for extension of time where application granted under rule 29A(2)(a)

   
7

Preparation of application

 0.20.5
8

Consent to application

 0.20.2

Appeals

   
9

Commencement of appeal—

   
 (a)as of right 1.52.0
 (b)following giving of leave 0.50.5
10

Preparation of case on appeal

 1.02.0
11

Preparation for and attendance at pre-hearing or case management conference

 0.30.3
12

Preparation for hearing of appeal

 3.06.0
13

Appearance at hearing of appeal

 

Appearance in Court measured in days

14

Second and subsequent counsel if allowed by Court

 

50% of allowance for appearance for principal counsel

*Including applications for extension of time not granted under rule 29A(2)(a)

Rebecca Kitteridge,
Acting for Clerk of the Executive Council.


Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 24 March 2005.


Court of Appeal (Civil) Amendment Rules (No 2) 2008

(SR 2008/141)

Anand Satyanand, Governor-General

At Wellington this 26th day of May 2008

Present:
His Excellency the Governor-General in Council

Pursuant to section 51C of the Judicature Act 1908, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, and with the concurrence of the Right Honourable the Chief Justice and at least 2 other members of the Rules Committee (of whom at least 1 was a Judge of the High Court), makes the following rules.

Rules

2 Commencement
  • These rules come into force on 1 July 2008.

9 Transitional provision
  • (1) Rules 53 to 53J of the principal rules as substituted by rule 8 of these rules apply to any costs determination made after the commencement of these rules, regardless of whether the step in respect of which costs are determined occurred before that commencement.

    (2) Despite subclause (1), if after the commencement of these rules the Court makes an order as to costs in respect of an appeal wholly heard before that commencement, the order must be made as if rule 8 had not been made.

Martin Bell,
for Clerk of the Executive Council.

Date of notification in Gazette: 29 May 2008.


Reprints notes
1 General
  • This is a reprint of the Court of Appeal (Civil) Rules 2005 that incorporates all the amendments to those rules as at the date of the last amendment to them.

2 Legal status
  • Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.

3 Editorial and format changes