Court of Appeal (Civil) Amendment Rules 2008

2008/17

Crest

Court of Appeal (Civil) Amendment Rules 2008

Dame Sian Elias, Administrator of the Government

Order in Council

At Wellington this 18th day of February 2008  

Present:
Her Excellency the Administrator of the Government in Council

Pursuant to section 51C of the Judicature Act 1908, Her Excellency the Administrator of the Government, 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

1 Title
  • These rules are the Court of Appeal (Civil) Amendment Rules 2008.

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

3 Principal rules amended
4 Judge may exercise certain powers under rules
  • Rule 7 is amended by revoking subclause (1) and substituting the following subclause:

    • (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.

5 Written submissions on application for leave
  • (1) Rule 23(2)(a) is amended by omitting not exceed 10 pages and substituting be contained in a document of not more than 10 pages, using 1.5 line spacing.

    (2) Rule 23(4)(a) is amended by omitting not exceed 10 pages and substituting be contained in a document of not more than 10 pages, using 1.5 line spacing.

6 Defective notice of appeal
  • Rule 30 is amended by adding the following subclauses as subclauses (2) and (3):

    • (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.

7 New rules 40 to 40D substituted
  • Rule 40 is revoked and the following rules are substituted:

    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 6 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.

    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.

    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.

    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.

    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.

8 Written submissions on appeals
  • (1) Rule 41(1) is amended by inserting , using 1.5 line spacing, after 30 pages.

    (2) Rule 41(1) is amended by revoking paragraph (c) and substituting the following paragraph:

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

9 New rule 42A inserted
  • The following rule is inserted after rule 42:

    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.

Diane Morcom,
Clerk of the Executive Council.

Explanatory note

This note is not part of the rules, but is intended to indicate their general effect.

These rules, which come into force on 1 April 2008, amend the Court of Appeal (Civil) Rules 2005 to—

  • empower a single Judge of the Court of Appeal to exercise the power of the Court to grant a stay of proceeding or interim relief (rule 4):

  • require 1.5 line spacing to be used for submissions (rules 5 and 8(1)):

  • empower a Judge of the Court of Appeal to require defects in notices of appeal to be remedied within a specified period. If the defects are not remedied, the appeal is to be treated as having been abandoned (rule 6):

  • in the case of an appeal involving a question of fact, prescribe the way in which the evidence previously given on the question is to be included in the case on appeal (rule 7):

  • clarify that the question of costs may be addressed in a party's written submissions (rule 8(2)):

  • require the parties to list the issues to be determined on the appeal (rule 9).


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 21 February 2008.

These rules are administered by the Ministry of Justice.