Court of Appeal (Civil) Amendment Rules 2018

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2018/253

Coat of Arms of New Zealand

Court of Appeal (Civil) Amendment Rules 2018

Patsy Reddy, Governor-General

Order in Council

At Wellington this 10th day of December 2018

Present:
Her Excellency the Governor-General in Council

These rules are made under section 148 of the Senior Courts Act 2016

(a)

on the advice and with the consent of the Executive Council; and

(b)

with the concurrence of the Right Honourable the Chief Justice and at least 2 other members of the Rules Committee continued under section 155 of the Senior Courts Act 2016 (of whom at least 1 was a Judge of the High Court).

Contents

1Title
2Commencement
3Principal rules
4Rule 3 amended (Interpretation)
5New rule 3A inserted (Transitional, savings, and related provisions)
3ATransitional, savings, and related provisions
6Rule 4 amended (Application of rules)
7Rule 5 amended (Directions)
8New rule 5A inserted (Registrar’s powers)
5ARegistrar’s powers
9Rule 6 replaced (Effect of non-compliance with rules)
6Effect of non-compliance with rules
10Rule 7 replaced (Judge may exercise certain powers under rules)
7Judge may exercise certain powers under rules or other enactments
11Rule 8 amended (Correction of accidental slip or omission)
12New rule 8A inserted (Recalling or reopening judgment)
8ARecalling or reopening judgment
13Rule 9 amended (Heading, point size, and margin)
14Rule 10 amended (Filing and service of documents)
15New rules 10A and 10B inserted
10APractice note about electronic format
10BInformal applications
16Rule 12 amended (Stay of proceedings and execution)
17Rule 12A revoked (Practice note about electronic format)
18Cross-heading above rule 13 revoked
19Cross-heading above rule 14 revoked
20Rule 14 replaced (Time for making application for leave)
14Time for making application for leave
21New rule 16A inserted (Extension of time for applying for leave)
16AExtension of time for applying for leave
22New rules 19A and 19B inserted
19ARespondent must respond to application for leave
19BDisposal of application for leave
23Rules 20 to 22 and cross-heading above rule 20 revoked
24Rule 23 replaced (Written submissions on application for leave)
23Written submissions on contested application for leave
25Rule 24 revoked (Bundle of authorities)
26Rule 25 amended (Oral submissions on application for leave)
27Rule 26 and cross-heading above rule 26 revoked
28Cross-heading above rule 26A revoked
29Rule 26A amended (Abandonment of applications for leave)
30Rule 26B amended (Effect of failing to pay fees of Court)
31Cross-heading above rule 27 revoked
32Rule 27 amended (Determination of application for leave)
33New Part 2A inserted
27AApplication of this Part
27BMode of bringing interlocutory application
27CProcess for disposing of interlocutory applications
34New rule 28A inserted (Interpretation in this Part)
28AInterpretation in this Part
35Rule 29 amended (Time for appeal)
36Rule 29A amended (Extension of time for appealing)
37Rule 30 amended (Form of appeal)
38Rule 31 amended (Mode of bringing appeal)
39New rule 33A inserted (Notice of appearance by respondent)
33ANotice of appearance by respondent
40Rule 35 amended (Security for costs: general)
41Rule 36 amended (Security for costs: legal aid)
42Rule 37 amended (Consequences of failure to comply with requirement to pay security for costs)
43Rule 38 amended (Allocation of hearing date)
44Rule 39 amended (Obligations of parties in preparing case on appeal)
45Rule 40 amended (Filing and form of case on appeal)
46Rule 40A revoked (Reuse of case on appeal used for leave application)
47New rule 40E inserted (Written synopsis of argument on appeal)
40EWritten synopsis of argument on appeal
48Rule 41 revoked (Written submissions on appeals)
49Rule 42 replaced (Bundle of authorities)
42Bundle of authorities
50Rule 42A amended (Issues)
51Rule 43 amended (Appeal abandoned if not pursued)
52Rule 44 amended (Abandonment of appeal by party)
53New rule 44A inserted (Court’s power to strike out or stay appeal)
44ACourt’s power to strike out or stay appeal
54Rule 45 amended (Application for leave to adduce further evidence)
55New rule 47A inserted (Outline of oral argument on appeal)
47AOutline of oral argument on appeal
56Rule 49 amended (Delivery of judgment)
57Rule 51 amended (Judgments to be sealed, dated, and served)
58Rule 52 amended (When judgment takes effect)
59New rule 52B inserted (Disposition of amounts held for security for costs)
52BDisposition of amounts held for security for costs
60New Part 4A heading inserted
61Rule 53A amended (Principles applying to determination of costs)
62Rule 53G amended (Principles applying to costs on application for leave to appeal)
63New rule 53GA inserted (Principles applying to costs on interlocutory applications)
53GAPrinciples applying to costs on interlocutory applications
64Rule 54 renumbered (Repayment of judgment sum and interest)
65Part 5 heading amended
66Rule 56 amended (Transitional provision)
67New Schedule 1AA inserted
68Schedule 1 replaced
69Schedule 2 replaced
Explanatory note
Administrative Information

Rules

1 Title

These rules are the Court of Appeal (Civil) Amendment Rules 2018.

2 Commencement

These rules come into force on 1 March 2019.

3 Principal rules

These rules amend the Court of Appeal (Civil) Rules 2005 (the principal rules).

4 Rule 3 amended (Interpretation)

(1)

In rule 3(1), insert in their appropriate alphabetical order:

affidavit includes an affirmation

application for leave to appeal means an application brought under Part 2

informal application means an application made in the manner described in rule 10B

interlocutory application

(a)

means an application brought under these rules relating to any procedural matter; and

(b)

includes an application for an order striking out an appeal; but

(c)

does not include—

(i)

an application for leave to appeal; or

(ii)

an informal application

month means a calendar month

specified number of court copies and specified number of party copies have the meanings set out in rule 28A

(2)

In rule 3(1), definition of legal aid, replace “2000” with “2011”.

(3)

In rule 3(1), replace the definition of working day with:

working day has the same meaning as in section 4(1) of the Senior Courts Act 2016

(4)

Replace rule 3(2) with:

(2)

In any judgment, order, direction, or other document forming part of a proceeding, unless the context otherwise requires, the terms month and working day have the same meanings as given to those terms in subclause (1).

5 New rule 3A inserted (Transitional, savings, and related provisions)

After rule 3, insert:

3A Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

6 Rule 4 amended (Application of rules)

Revoke rule 4(2).

7 Rule 5 amended (Directions)

(1)

In rule 5(1), after “arises in a proceeding”, insert “, whether on application by a party or on the Court’s own initiative”.

(2)

After rule 5(3), insert:

(3A)

An application under subclause (3)(a) may be an informal application, unless these rules state otherwise.

8 New rule 5A inserted (Registrar’s powers)

After rule 5, insert:

5A Registrar’s powers

(1)

The Registrar may, unless otherwise directed by a Judge,—

(a)

exercise any power given to the Registrar by these rules, an Act, or regulations:

(b)

decline to accept a document for filing—

(i)

that contains plainly abusive material unless that material is removed:

(ii)

that plainly should have been filed in another court instead:

(c)

extend the time for complying with any rule, direction, or order of the Court—

(i)

by consent; or

(ii)

by up to 5 working days, despite the absence of consent.

(2)

The Registrar’s power under subclause (1)(c)—

(a)

may be exercised before the time for complying with the rule, direction, or order ends or after that time has ended; and

(b)

is in addition to any express power to extend time under these rules.

(3)

A Judge may—

(a)

review the Registrar’s exercise of any power, on an informal application made by a person affected within 20 working days after the date of the Registrar’s decision; and

(b)

confirm, modify, or revoke that decision.

9 Rule 6 replaced (Effect of non-compliance with rules)

Replace rule 6 with:

6 Effect of non-compliance with rules

(1)

If a document does not comply with these rules, the document cannot be accepted for filing unless a Judge or the Registrar gives leave for the document to be filed.

(2)

An application or an appeal is not invalid merely because there has been a failure to comply with these rules in the course of the application or appeal.

(3)

However, the Court may set aside, amend, or deal with the application or appeal, or part of the application or appeal, in any other manner and on any terms that the Court thinks appropriate.

10 Rule 7 replaced (Judge may exercise certain powers under rules)

Replace rule 7 with:

7 Judge may exercise certain powers under rules or other enactments

A Judge may exercise—

(a)

any power given to a Judge by these rules or any Act or regulations:

(b)

any power exercisable by the Registrar.

11 Rule 8 amended (Correction of accidental slip or omission)

Replace rule 8(1)(a) with:

(a)

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

12 New rule 8A inserted (Recalling or reopening judgment)

After rule 8, insert:

8A Recalling or reopening judgment

(1)

The Court may, on an interlocutory application or on its own initiative, recall or reopen a judgment given in writing or orally, at any time before a formal record of it is drawn up and sealed.

(2)

Neither the parties nor their representatives have a right to appear before the Court on an application for a judgment to be recalled or reopened, unless the Court otherwise directs.

13 Rule 9 amended (Heading, point size, and margin)

(1)

In rule 9(1)(a), after ““In the Court of Appeal of New Zealand””, insert “and, in te reo Māori, the words “I te Kōti Pira ō Aotearoa””.

(2)

In rule 9(2), after “12 point size”, insert “or be in neat and legible handwriting”.

(3)

In rule 9(3)(b), delete “(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)”.

(4)

After rule 9(3), insert:

(4)

All documents must be printed or handwritten using only 1 side of every page except for authorities and the case on appeal, which may be double-sided.

14 Rule 10 amended (Filing and service of documents)

(2)

(3)

In rule 10(5), delete “to a fax number or” and “fax or”.

(4)

In rule 10(6), delete “fax or”.

(5)

In rule 10(7)(a), replace “rules” with “rule”.

(6)

Replace rule 10(7)(b) and (c) with:

(b)

a bundle of authorities must be filed and served in accordance with rule 42.

15 New rules 10A and 10B inserted

After rule 10, insert:

10A Practice note about electronic format

A party who, under these rules or with the authority of the Court, is to file and serve a document or bundle of documents electronically, must comply with the Senior Courts Civil Electronic Document Protocol (published on the Courts of New Zealand Internet site, see www.courtsofnz.govt.nz).

10B Informal applications

(1)

Where these rules, or a judgment, order, minute, or other direction of the Court, provides for a party or other person to make an informal application, the party or person may make that application by letter or by email.

(2)

The letter or email does not need to be in any particular form.

(3)

An informal application made by letter may be hand delivered to the Registry or sent to a postal address published by the Registrar.

(4)

An informal application made by email may be sent to an email address published by the Registrar.

(5)

A person making an informal application is not required to pay a fee for that application.

16 Rule 12 amended (Stay of proceedings and execution)

In rule 12(3), (5), and (6), replace “on application,” with “on an interlocutory application,”.

17 Rule 12A revoked (Practice note about electronic format)

Revoke rule 12A.

18 Cross-heading above rule 13 revoked

Revoke the cross-heading above rule 13.

19 Cross-heading above rule 14 revoked

Revoke the cross-heading above rule 14.

20 Rule 14 replaced (Time for making application for leave)

Replace rule 14 with:

14 Time for making application for leave

(1)

If an enactment provides that the Court of Appeal may give leave to appeal against a decision, an application for that leave must be made to the Court—

(a)

within the time specified in the enactment; or

(b)

if the enactment does not specify the time within which the application must be made, within the appropriate time specified in subclause (2).

(2)

The appropriate time is,—

(a)

where leave may be given only by the Court, 20 working days after the date of the decision against which the party wishes to appeal:

(b)

where the Court may give leave only if the court appealed from refuses leave, 20 working days after the date of that court’s decision refusing leave:

(c)

where either the Court or the court appealed from may give leave, 20 working days after the date of the decision against which the party wishes to appeal or, as the case may require, 20 working days after the date of that court’s decision refusing leave.

(3)

For the purposes of subclauses (1) and (2), the date of a decision is the date on which the decision is given, whether or not—

(a)

reasons for the decision are given then or 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.

21 New rule 16A inserted (Extension of time for applying for leave)

After rule 16, insert:

16A Extension of time for applying for leave

(1)

If the application for leave to appeal is not brought within the time specified in rule 14, the applicant may file an interlocutory application for an extension of that time.

(2)

The applicant must, promptly after filing an application for an extension of time, serve a copy of the application on the respondent.

(3)

If an application for leave to appeal has not already been filed, that application and the application for an extension of time may be included in a single application.

(4)

Rules 19A, 19B, and 23 apply, with all necessary modifications, to an application under this rule.

22 New rules 19A and 19B inserted

After rule 19, insert:

19A Respondent must respond to application for leave

(1)

The respondent must, within 10 working days after the date on which the respondent is served with a copy of the application for leave to appeal, file and serve a memorandum stating whether the respondent consents to or opposes the application.

(2)

If the respondent opposes the application, the memorandum that is filed and served must—

(a)

state the grounds of opposition; and

(b)

be accompanied by any affidavit relevant to the issues.

(3)

If the respondent does not comply with this rule within the time specified in subclause (1), or any extended time permitted under these rules, the applicant must promptly—

(a)

notify the Registrar; and

(b)

file an affidavit proving service of the application in accordance with these rules.

19B Disposal of application for leave

(1)

If the respondent consents to the application for leave to appeal, a Judge may give leave to appeal and give any consequential directions.

(2)

If the respondent opposes the application or the respondent does not comply with rule 19A,—

(a)

rules 23 to 27 apply; and

(b)

the application must be determined on the papers, unless a Judge otherwise directs.

23 Rules 20 to 22 and cross-heading above rule 20 revoked

Revoke rules 20 to 22 and the cross-heading above rule 20.

24 Rule 23 replaced (Written submissions on application for leave)

Replace rule 23 with:

23 Written submissions on contested application for leave

(1)

Where an application under this Part is contested, the applicant must, within 20 working days after filing the application for leave to appeal,—

(a)

file in the Registry 3 copies of the applicant’s written submissions in support of the application accompanied by any authorities that the applicant considers are essential to the submissions; and

(b)

serve a copy of those written submissions and authorities on the other party.

(2)

The applicant’s written submissions under subclause (1) must set out, clearly and succinctly,—

(a)

a narrative of the facts of the case relevant to the appeal; and

(b)

the points of law or fact involved; and

(c)

the decision to be appealed against; and

(d)

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 being served under subclause (1)(b),—

(a)

file 3 copies of the party’s written submissions accompanied by any additional authorities that the party considers are essential to the submissions; and

(b)

serve a copy of those written submissions and authorities on the applicant.

(4)

In each case, the submissions must be contained in a document of not more than 10 pages, using 1.5 line spacing.

(5)

The parties to an application for leave to appeal are not required to prepare a case on appeal for that application.

(6)

This rule is subject to any directions that the Court may give.

25 Rule 24 revoked (Bundle of authorities)

Revoke rule 24.

26 Rule 25 amended (Oral submissions on application for leave)

(1)

Before rule 25(1), insert:

(1AA)

If a Judge directs that the application for leave to appeal is to be determined by an oral hearing, the Registrar must allocate a hearing date for the application and notify the parties of that date.

(2)

Revoke rule 25(2).

27 Rule 26 and cross-heading above rule 26 revoked

Revoke rule 26 and the cross-heading above rule 26.

28 Cross-heading above rule 26A revoked

Revoke the cross-heading above rule 26A.

29 Rule 26A amended (Abandonment of applications for leave)

In rule 26A(2)(b), replace “solicitor or counsel” with “lawyer”.

30 Rule 26B amended (Effect of failing to pay fees of Court)

In rule 26B(3), after “A Judge, on”, insert “an interlocutory”.

31 Cross-heading above rule 27 revoked

Revoke the cross-heading above rule 27.

32 Rule 27 amended (Determination of application for leave)

In rule 27(2)(b), replace “need not” with “may, but does not have to,”.

33 New Part 2A inserted

After rule 27, insert:

Part 2A Interlocutory applications

27A Application of this Part

All interlocutory applications to the Court (other than an application for leave to appeal under Part 2) must be made in accordance with the rules in this Part, unless these rules provide otherwise or a Judge directs that a different procedure is to be used.

27B Mode of bringing interlocutory application

(1)

An interlocutory application must be in form 3 of Schedule 1.

(2)

The application is brought by—

(a)

filing the application in the Registry, with any supporting affidavits; and

(b)

promptly serving copies of the documents filed on each opposite party.

27C Process for disposing of interlocutory applications

Rules 19A to 26A and 27 apply, with all necessary modifications, to an interlocutory application under this Part as if it were an application for leave to appeal.

34 New rule 28A inserted (Interpretation in this Part)

After rule 28, insert:

28A Interpretation in this Part

In this Part,—

specified number of court copies means,—

(a)

if the record is electronic, 1 paper copy and 1 electronic copy:

(b)

if the appeal is to be heard by a Court of 3 Judges and the record is not electronic, 4 paper copies:

(c)

if the appeal is to be heard by a Court of 5 Judges and the record is not electronic, 6 paper copies

specified number of party copies means,—

(a)

if the record is electronic, 1 paper copy and 1 electronic copy:

(b)

if the record is not electronic, 1 paper copy.

35 Rule 29 amended (Time for appeal)

(1)

Before rule 29(1), insert:

(1AA)

A party must bring an appeal—

(a)

within the time specified in the enactment under which the appeal is brought; or

(b)

if the enactment does not specify the time within which the appeal must be brought, within the appropriate time specified in subclause (1).

(2)

In rule 29(1), replace “A party must bring an appeal,— ” with “The appropriate time is,— ”.

36 Rule 29A amended (Extension of time for appealing)

(1)

In rule 29A(1), replace “may apply for” with “may make an interlocutory application for”.

(2)

Revoke rule 29A(2).

(3)

In rule 29A(3), delete “under subclause (2)(a)”.

37 Rule 30 amended (Form of appeal)

After rule 30(1), insert:

(1A)

A notice of appeal or cross-appeal must be signed by the appellant or respondent personally or by that party’s lawyer.

38 Rule 31 amended (Mode of bringing appeal)

After rule 31(5), insert:

(6)

If subclause (5) applies, the proceeding will be dealt with in accordance with the directions of a Judge.

39 New rule 33A inserted (Notice of appearance by respondent)

After rule 33, insert:

33A Notice of appearance by respondent

The respondent must file and serve a notice of appearance in form 4 of Schedule 1 within 10 working days after the date on which the appellant’s notice of appeal is served on the respondent.

40 Rule 35 amended (Security for costs: general)

(1)

In rule 35(4), replace “solicitor” with “lawyer”.

(2)

In rule 35(7)(b), replace “made on an informal basis” with “an informal application”.

(3)

After rule 35(9), insert:

(10)

The Registrar may, on an informal application, extend the time for complying with subclause (7)(a).

(11)

The Registrar may at any time, on an informal application, revoke any requirement to pay security for costs on proof that the party required to pay security is legally aided.

41 Rule 36 amended (Security for costs: legal aid)

(1)

In rule 36(4), after “written advice”, insert “and proof”.

(2)

In rule 36(6), after “If the application is declined,”, insert “or the application is granted but legal aid is later withdrawn,”.

(3)

In rule 36(6)(a) and (b), after “legal aid is declined”, insert “or legal aid is later withdrawn”.

(4)

After rule 36(6), insert:

(7)

The Registrar may, on an informal application, extend the time for complying with subclause (6)(b).

(8)

The Registrar may require an appellant to provide proof that an application for legal aid has been made.

42 Rule 37 amended (Consequences of failure to comply with requirement to pay security for costs)

(1)

In the heading to rule 37, after “costs” insert or prescribed fees.

(2)

In rule 37(1), replace “on application” with “on an interlocutory application or on its own initiative”.

(3)

In rule 37(2), after “any obligation to pay security for costs”, insert “or prescribed fees”.

43 Rule 38 amended (Allocation of hearing date)

(1)

Replace rule 38(3)(b)(i) to (iv) with:

(i)

1 hour or less; or

(ii)

2 hours or less; or

(iii)

a half day (3 hours); or

(iv)

1 day (4.5 hours); or

(v)

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

(2)

After rule 38(3)(c), insert:

(d)

a brief statement of the issues likely to arise on the appeal, including whether any novel point of law or challenge to established authority is involved.

(3)

Replace rule 38(4)(b) with:

(b)

the written advice under subclause (3)(b); and

(c)

any request made under subclause (3)(c); and

(d)

the statement of issues under subclause (3)(d).

(4)

In rule 38(5), replace “must— ” with “must,— ”.

(5)

Revoke rule 38(6).

44 Rule 39 amended (Obligations of parties in preparing case on appeal)

In rule 39(1), after “consultation with the respondent”, insert “, unless the parties agree otherwise or the Registrar dispenses with this requirement”.

45 Rule 40 amended (Filing and form of case on appeal)

(1)

Replace rule 40(1) and (2) with:

(1)

The appellant must—

(a)

file the specified number of court copies of the case on appeal in the Registry; and

(b)

after complying with paragraph (a), promptly serve the specified number of party copies on the respondent.

(2)

The case on appeal must be filed on the earlier of the following:

(a)

a date that is within 3 months after the appeal is brought:

(b)

a date not later than 30 working days before the date allocated for the hearing of the appeal.

(2)

In rule 40(4)(c), after “have a”, insert “differently coloured”.

(3)

In rule 40(4)(c)(ii), replace “solicitors” with “lawyers”.

(4)

After rule 40(4)(d), insert:

(e)

have a label that—

(i)

is fixed to the spine of the volume in a permanent manner; and

(ii)

shows the number of the volume.

(5)

In rule 40(5)(a), (c), (d), and (e), replace “:” with “; and”.

(6)

Replace rule 40(5)(b) with:

(b)

any notice of cross-appeal; and

(ba)

any memorandum under rule 33; and

(7)

In rule 40(6), replace “subclause (2)(b)” with “subclause (2)(a)”.

(8)

After rule 40(6), insert:

(7)

If the 3-month period or any extended period calculated under subclause (6) expires on a non-working day, the 3-month period is deemed to be extended until the next working day.

46 Rule 40A revoked (Reuse of case on appeal used for leave application)

Revoke rule 40A.

47 New rule 40E inserted (Written synopsis of argument on appeal)

After rule 40D, insert:

40E Written synopsis of argument on appeal

(1)

Each party must file a written synopsis of argument on appeal as follows:

(a)

the appellant’s synopsis must be filed and served not later than 25 working days before the allocated hearing date:

(b)

the respondent’s synopsis must be filed and served not later than 15 working days before the allocated hearing date.

(2)

In each case,—

(a)

the specified number of court copies must be filed; and

(b)

the specified number of party copies must be served.

(3)

The synopsis—

(a)

must not be longer than 25 pages (including appendices), unless a Judge has given the party prior leave to file a longer synopsis; and

(b)

must be in 1.5 line spacing and otherwise comply with the requirements in rule 9; and

(c)

must comply with any relevant practice note that the Court may issue; and

(d)

must be accompanied by a chronology of key dates, if appropriate.

(4)

The Registrar must reject a synopsis if it is longer than 25 pages and is presented for filing without the prior leave of a Judge.

(5)

If a party has not included a point in its synopsis, the party may not argue the point at the hearing of the appeal without the leave of the Court.

(6)

A respondent who cross-appeals must comply with this rule as if the respondent were the appellant and the appellant were the respondent.

48 Rule 41 revoked (Written submissions on appeals)

Rule 41 is revoked.

49 Rule 42 replaced (Bundle of authorities)

Replace rule 42 with:

42 Bundle of authorities

(1)

The appellant must—

(a)

prepare a bundle of authorities that consists only of the authorities that the appellant considers essential to the appellant’s case; and

(b)

file the specified number of court copies of the bundle at the time of filing the synopsis under rule 40E(1)(a); and

(c)

serve the specified number of party copies of the bundle on the respondent at the time of filing the synopsis under rule 40E(1)(a).

(2)

If the respondent considers that the bundle of authorities filed under subclause (1) does not include authorities that the respondent considers essential to the respondent’s case, the respondent must—

(a)

prepare a bundle of the additional authorities that the respondent considers essential; and

(b)

file the specified number of court copies of the bundle at the time of filing the synopsis under rule 40E(1)(b); and

(c)

serve the specified number of party copies of the bundle on the appellant at the time of filing the synopsis under rule 40E(1)(b).

(3)

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

50 Rule 42A amended (Issues)

After rule 42A(3), insert:

(3A)

In each case under subclause (2) or (3) (whichever applies),—

(a)

the specified number of court copies must be filed; and

(b)

the specified number of party copies must be served.

51 Rule 43 amended (Appeal abandoned if not pursued)

(1)

After rule 43(1), insert:

(1A)

Subclause (1) is subject to any suspension or extension of time granted under subclause (1B).

(1B)

The Registrar may, on an informal application made before the end of the 3-month period referred to in subclause (1), suspend the application of this rule for periods of up to 1 month at a time if—

(a)

the applicant has applied for legal aid and the application has yet to be finally determined; or

(b)

an application under rule 35(6) in relation to security for costs or for a waiver of a fee has yet to be determined; or

(c)

a review of a Registrar’s decision on an application under rule 35(6) has yet to be determined; or

(d)

a party is seeking leave to appeal to the Supreme Court against a decision in relation to security for costs.

(2)

In rule 43(2), after “The Court, on”, insert “an interlocutory”.

(3)

Replace rule 43(3) to (5) with:

(3)

The Court may extend a period or an extended period under subclause (2) only if the application for the extension is made—

(a)

before the period or extended period ends; or

(b)

within 3 months after the period or extended period ends.

(4)

If, in relation to an application for an extension, the 3-month period under subclause (3) includes any days that fall within the period starting on 25 December in one year and ending on 15 January in the following year, the 3-month period is extended by the number of those days.

(5)

However, if the 3-month period calculated under subclause (1B) or the extended 3-month period calculated under subclause (3) ends on a non-working day, that period or extended period is extended until the next working day.

(6)

The fact that an appeal is treated as abandoned under subclause (1) does not affect—

(a)

the power of the Court to determine an application for costs; or

(b)

the right of a person to enforce an order for costs, irrespective of whether the order for costs is made before or after the appeal is treated as having been abandoned.

(7)

An extension of time granted under this rule has the effect of reinstating the appeal as at the date that it was treated as abandoned under subclause (1).

(8)

The Registrar’s power to suspend time under subclause (2) is additional to the Registrar’s power under rule 5A(1)(c).

(9)

This rule overrides rules 5(2) and 6.

52 Rule 44 amended (Abandonment of appeal by party)

(1)

Replace rule 44(1) with:

(1)

A party may, at any time, abandon an appeal brought by the party by filing in the Registry a notice in form 5 of Schedule 1 and serving a copy of the notice on the respondent.

(2)

In rule 44(2)(b), replace “solicitor or counsel” with “lawyer”.

53 New rule 44A inserted (Court’s power to strike out or stay appeal)

After rule 44, insert:

44A Court’s power to strike out or stay appeal

(1)

In addition to any express power in these rules to strike out an appeal, the Court may, on an interlocutory application or on its own initiative, make an order striking out or staying an appeal in whole or in part if—

(a)

the appellant is in continuing default in complying with any of these rules or with any procedural direction or order made by a Judge; or

(b)

the appellant has failed to prosecute the appeal with due diligence and dispatch; or

(c)

the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.

(2)

The Court must—

(a)

give the appellant 10 working days’ prior notice of its intention to consider making an order under this rule; and

(b)

give ancillary directions as to the filing and service of any written submissions.

(3)

The Court may make an order under this rule on the papers or after an oral hearing, as the Court thinks fit.

(4)

The Court may order a stay under this rule on any terms that the Court thinks appropriate.

(5)

This rule also applies to cross-appeals.

54 Rule 45 amended (Application for leave to adduce further evidence)

(1)

In rule 45(1), after “The Court may, on the”, insert “interlocutory”.

(2)

In rule 45(2), replace “counsel” with “lawyers”.

(3)

After rule 45(2), insert:

(3)

If the application for leave to adduce further evidence is opposed, it must be referred to a Judge to determine whether the application is to be heard before or at the substantive hearing of the appeal.

55 New rule 47A inserted (Outline of oral argument on appeal)

After rule 47, insert:

47A Outline of oral argument on appeal

(1)

Any party may, at the hearing of an appeal, provide the Court with an outline of the oral argument to be advanced at the hearing.

(2)

The outline must comply with rule 9.

(3)

However, the outline must not be longer than 2 pages.

(4)

The outline must be cross-referenced, as appropriate, to the synopsis of the argument, the judgment appealed from, and the record.

(5)

A copy of the outline must be served on the other party not later than 5 pm on the last day before the hearing.

56 Rule 49 amended (Delivery of judgment)

(1)

In rule 49(4)(b) and (5)(b), replace “must attempt to notify the parties, by telephone or otherwise,” with “must, as soon as practicable, attempt to notify the parties”.

(2)

In rule 49(6)(a), delete “or facsimile”.

57 Rule 51 amended (Judgments to be sealed, dated, and served)

(1)

Replace the heading to rule 51 with Judgments to be sealed and dated.

(2)

Replace rule 51(2) with:

(2)

Form 6 of Schedule 1 must be used.

(3)

After rule 51(2), insert:

(2A)

Wherever practicable, the party seeking to seal a judgment must first consult the opposite party or parties as to the form of the judgment and any order as to costs.

(4)

Revoke rule 51(6).

58 Rule 52 amended (When judgment takes effect)

In rule 52(4), replace “this rule” with “this rule,”.

59 New rule 52B inserted (Disposition of amounts held for security for costs)

Before rule 53, insert:

52B Disposition of amounts held for security for costs

(1)

After the Court delivers its judgment on an appeal, the Registrar must ask the parties to the appeal to advise the Registrar on how the amount held as security for costs (if any) should be disposed of.

(2)

The Registrar, after considering the parties’ advice and if satisfied that there is no reason for the amount to be disposed of in any other way, may direct that the money be disposed of by—

(a)

refunding it to the appellant, if the appeal was successful; and

(b)

paying it to the respondent, if the appeal was unsuccessful.

(3)

If the Registrar is not satisfied as required under subclause (2), the Registrar must direct how the amount is otherwise to be disposed of.

60 New Part 4A heading inserted

After rule 52B (as inserted by rule 59), insert:

Part 4A Costs

61 Rule 53A amended (Principles applying to determination of costs)

(1)

In rule 53A(e), replace “solicitor or counsel” with “lawyer” in each place.

(2)

In rule 53A, insert as subclause (2):

(2)

The principles applying to costs on applications for leave to appeal in rule 53G and the principles applying to costs on interlocutory applications in rule 53GA override the principles in this rule to the extent that the principles in those provisions are inconsistent with or modify the principles in this rule.

62 Rule 53G amended (Principles applying to costs on application for leave to appeal)

After rule 53G(5), insert:

(5A)

The 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 application for leave to appeal.

(5B)

For the purposes of subclause (5A), a reasonable time for a step in an interlocutory application is—

(a)

the time specified for it in Schedule 2; or

(b)

if Schedule 2 does not apply, the time assessed as likely to be required.

63 New rule 53GA inserted (Principles applying to costs on interlocutory applications)

After rule 53G, insert:

53GA Principles applying to costs on interlocutory applications

(1)

The principles applying to costs on an interlocutory application are the same as the principles applying to costs on an application for leave to appeal, and rule 53G applies, with all necessary modifications, to an interlocutory application under Part 2A as if it were an application for leave to appeal.

(2)

The 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 interlocutory application.

(3)

For the purposes of subclause (2), a reasonable time for a step in an interlocutory application is—

(a)

the time specified for it in Schedule 2; or

(b)

if Schedule 2 does not apply, the time assessed as likely to be required.

64 Rule 54 renumbered (Repayment of judgment sum and interest)

Renumber rule 54 as rule 52A and reposition it in its appropriate numerical order.

65 Part 5 heading amended

In the Part 5 heading, after provision, insert relating to rules as made.

66 Rule 56 amended (Transitional provision)

In the heading to rule 56, after provision, insert relating to rules as made.

67 New Schedule 1AA inserted

Insert the Schedule 1AA set out in Schedule 1 of these rules as the first schedule to appear after the last rule of the principal rules.

68 Schedule 1 replaced

Replace Schedule 1 with the Schedule 1 set out in Schedule 2 of these rules.

69 Schedule 2 replaced

Replace Schedule 2 with the Schedule 2 set out in Schedule 3 of these rules.

Schedule 1 New Schedule 1AA inserted

r 67

Schedule 1AA Transitional, savings, and related provisions

r 3A

Part 1 Provisions relating to Court of Appeal (Civil) Amendment Rules 2018

1 Interpretation

In this Part,—

amended rules means the Court of Appeal (Civil) Rules 2005 as in force immediately after the commencement of the amendment rules

amendment rules means the Court of Appeal (Civil) Amendment Rules 2018

specified appeal means—

(a)

an appeal that is in progress at the time the amendment rules commence; and

(b)

includes an application for leave to appeal made before the amendment rules commence and which is pending or in progress at the time of the commencement.

2 Transitional provision

(1)

Specified appeals may be continued and completed under the amended rules, and the amended rules, so far as practicable, apply to those appeals.

(2)

However, to the extent that it is not practicable for any provision of the amended rules to be applied to a specified appeal, the rules as in force immediately before the commencement of the amendment rules, apply to the extent necessary.

(3)

If, in any specified appeal, a question arises as to the application of any of the amended rules or the rules as in force immediately before the commencement of the amendment rules, the Court or, on the direction of the Court, the Registrar may determine the question and make any order that the Court or the Registrar (as the case may be) thinks fit.

Schedule 2 Schedule 1 replaced

r 68

Schedule 1 Forms

rr 15, 27B, 30, 33A, 44(1), 51

Form 1 Application for leave to bring civil appeal

rr 15, 27B, 30, 33A, 44(1), 56

(Insert the standard heading as specified in rule 9)

The appellant gives notice of an application for [special] leave to appeal to the Court against [state particulars of the decision against which the appellant wishes to appeal, including the date on which, and the court where, it was given].

The appellant seeks to appeal against [state whether the appellant wishes to appeal against all or part of the decision; if just part, identify that part].

The appellant makes the application for [special] leave under section [number] of the [name] Act [year].

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

or

*The specific grounds of the appeal are [state grounds].

*Select whichever statement applies.

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

The judgment the appellant seeks from the Court of Appeal, if leave is granted, is [specify the form of judgment the appellant seeks].

The appellant relies on the following affidavit(s) in support of the application for leave:

[State the name of the deponent/s and the date on which each deponent swore their affidavit.]

*The appellant is legally aided.

*The appellant is not legally aided.

*The appellant has applied for legal aid.

*Select whichever statement applies.

Date:

Signature of appellant or appellant’s lawyer:

The appellant’s 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

(Insert the standard heading as specified in rule 9)

The appellant in the proceeding identified above, [full name], gives notice that the appellant is appealing to the Court against [state particulars of the decision against which the appellant wishes 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

The specific grounds of the appeal are:

[If the 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

The appellant seeks the following judgment from the Court of Appeal:

*The appellant is bringing this appeal pursuant to leave to appeal given by the [name of court] on [date].

*The appellant is legally aided.

*The appellant is not legally aided.

*The appellant has applied for legal aid.

*Select whichever statement applies.

Date:

Signature of appellant or appellant’s lawyer:

The appellant’s 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 the appellant has applied for legal aid for this appeal, the appellant must promptly give the Registrar written notice of the outcome of the application for legal aid.

Form 3 Interlocutory application1

r 27B

(Insert the standard heading as specified in rule 9)

The appellant, [full name], gives notice of an application for—

1

[State the order(s) sought, with precision.]

2

The grounds for the application are [state grounds with precision].

3

The appellant relies on the following affidavit(s) (if any) in support of the application:

[State the name of the deponent/s and the date on which each deponent swore their affidavit.]

4

The application is made in reliance on [specify the rule or enactment under which the application is made and any relevant judicial authorities].

Date:

Signature of appellant or appellant’s lawyer:

1Use this form for all applications except an application for leave to appeal under Part 2.

Form 4 Appearance by respondent

r 33A

(Insert the standard heading as specified in rule 9)

1

The respondent [name] gives notice of appearance in respect of this appeal.

2

The respondent’s address for service of any documents or notices in connection with the appeal is—

  • [specify address]

  • [specify any email address]

  • [specify any telephone or mobile number]

Date:

Signature of respondent or respondent’s lawyer:

Form 5 Abandonment of appeal

r 44(1)

(Insert the standard heading as specified in rule 9)

1

The appellant gives notice abandoning this appeal.

2

Costs in respect of the abandonment are agreed/not agreed*.

*Select one.

Date:

Signature of appellant or appellant’s lawyer:

Form 6 Judgment for sealing

r 51

(Insert the standard heading as specified in 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 3 Schedule 2 replaced

r 69

Schedule 2 Time allocations

rr 53D(1), 53G(5B), 53GA(3)

Step in relation to application for leave to appeal, interlocutory application, or appealTime allocated for step
Band ABand B

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 appeal in item 1 or 2

0.40.6
4

Preparation for hearing of defended application

1.02.0
5

Preparation of consent memorandum

0.20.2
6

Appearance at hearing of defended application

Appearance in Court measured in half days

7

Second and subsequent counsel if allowed by Court

50% of allowance for appearance for principal counsel

All other interlocutory applications

8

Commencement of application

0.51.0
9

Preparation of memorandum of opposition

0.20.4
10

Preparation of consent memorandum

0.20.2
11

Preparation for hearing of application

0.51.5
12

Appearance at hearing of defended application

Appearance in Court measured in half days

13

Second and subsequent counsel if allowed by Court

50% of allowance for appearance for principal counsel

Appeals

14

Commencement of appeal—

(a)

as of right

(b)

following giving of leave

 

1.5

0.5

 

2.0

0.5

15Preparation of case on appeal1.02.0
16Preparation for and attendance at pre-hearing or case management conference0.30.3
17Preparation for hearing of appeal3.06.0
18Appearance at hearing of appeal

Appearance in Court measured in days

19Second and subsequent counsel if allowed by Court

50% of allowance for appearance for principal counsel

Michael Webster,
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 amend the Court of Appeal (Civil) Rules 2005 (the principal rules), come into force on 1 March 2019.

The rules make a number of changes to the principal rules that are necessary as a consequence of the enactment of the Senior Courts Act 2016 (the Act), which repealed and superseded the Judicature Act 1908, and a number of miscellaneous and unrelated changes. These include—

  • changes to rule 3, which is the interpretation provision for the principal rules. The changes include definitions of the new terms informal application (an application that may be made by letter or email as set out in new rule 10B) and interlocutory application (which relates to the rules dealing with interlocutory applications in new Part 2A):

  • modifications to the powers and duties of the Registrar to reflect the more extensive powers and duties given to the Registrar by section 64 of the Act. New rule 5A gives the Registrar powers to—

    • decline to accept a document for filing on the grounds that the document contains plainly abusive material, unless that material is removed, or that the document is plainly filed in the wrong court:

    • extend the time within which a person is required to comply with a rule, direction, or order of the Court—

      • with the consent of the affected parties; or

      • despite the Registrar not having the consent of affected parties, by up to 5 days:

  • insertion of new rule 5A(3), which provides for a Judge to review a Registrar’s exercise of a power if an affected person applies for the review within 20 working days after the Registrar’s decision:

  • a replacement rule 7, which concerns the powers that a single Judge or 2 Judges of the Court may exercise, to reflect the powers in section 49(1) and (2) of the Act. Those provisions authorise 2 or more Judges to exercise more extensive powers in defined circumstances than previously, and permit a single Judge to exercise certain powers in uncontested matters:

  • insertion of new rule 8A, which requires an application to recall or reopen a judgment to be made by interlocutory application or on the Court’s own intiative:

  • changes to rule 9(1) and (2) to require the heading to all documents filed in the Registry to include the name of the court in te reo Māori (I te Kōti Pira ō Aotearoa) as well as in English, permit the filing of handwritten documents, and have a margin that must be on the left-hand side of the page only. New rule 9(4) requires all paper documents presented for filing to be in single-side format except for authorities and the case on appeal, which may be double-sided:

  • changes to rule 10(1), (2), (5), and (6), which have the effect that documents can no longer be filed and served by fax:

  • insertion of new rule 10A, which makes it mandatory for a party who files or serves a document or bundle of documents electronically to comply with the Senior Courts Civil Electronic Document Protocol:

  • insertion of new rule 10B, which deals with the manner in which a person may make an informal application where a rule (or a judgment, order, minute, or other direction of the Court) provides for an application to be made in this way. The rule permits the application to be made by letter or email without payment of a fee:

  • a replacement rule 14, which deals with the time within which a person must apply for leave to appeal, to clarify that the times specified in the rule apply subject to any time that may be specified in the enactment under which the application is made:

  • insertion of new rule 16A, which provides for a person to make an interlocutory application for an extension of the time for filing an application for leave to appeal. This is separate from the general rule concerning applications for extension of time (new rule 5A) and also from the rule providing for a party to apply for an extension of the time for bringing an appeal (rule 29A):

  • new rule 19A, which requires the respondent to an application for leave to appeal to advise the Court as to whether the respondent consents to the application or opposes it and, if the application is opposed, requires the respondent to file a memorandum stating on what grounds it is opposed, together with any supporting affidavit:

  • insertion of new rule 19B, which provides for the powers of the Court and of a Judge when determining an application for leave. The rule includes a new power enabling a Judge to grant leave to appeal and give consequential directions if the respondent consents to the application. It also provides that, if the application is opposed or if the respondent has not filed a memorandum as required under new rule 19A, the application will be determined on the papers unless a Judge gives some other direction:

  • a replacement rule 23, which sets out requirements relating to parties’ written submissions on a contested application for leave to appeal. Changes include reducing the number of copies to be filed and served and allowing for authorities to accompany written submissions. The replacement rule also provides that there is no requirement for the parties to an application for leave to appeal to prepare a case on appeal:

  • insertion of new Part 2A, which provides for interlocutory applications. These have not previously been provided for in the rules. The new Part covers all interlocutory applications other than applications for leave to appeal. New rule 27B requires an interlocutory application to be made in new form 3, and rules 19A, 19B, 23, 25, 26A, and 27 apply to the application as if it were an application for leave to appeal:

  • insertion of new rule 33A, which imposes a new obligation on the respondent to an appeal. It requires the respondent to file and serve a response to the notice of appeal, in new form 4, within 10 working days after the date of being served with that notice:

  • insertion of new subclauses (10) and (11) in rule 35, which is the general rule dealing with security for costs. These provisions enable the Registrar to—

    • extend the time for applying to vary the amount of security for costs required to be paid or deferring the date on which it must be paid:

    • revoke a requirement for a party to pay security for costs on proof that the party is legally aided:

  • changes to rule 37(1) and (2), to enable the Court to—

    • make an order striking out an appeal on its own initiative if security for costs is not paid by the time payment is due; and

    • preclude an appellant from applying to the Registrar for the allocation of a hearing date not only if security for costs have not been paid (as currently provided) but also if any prescribed fees are outstanding:

  • insertion of new rule 38(3)(d), which requires a party, when applying to the Registrar to allocate a hearing date, to provide a brief statement of the issues likely to arise on the appeal, including whether any novel point of law or challenge to established authority is involved:

  • changes to rules 39(1) and 40 to modify requirements concerning the appellant’s obligation to consult when preparing the case on appeal, the form of the case on appeal, and the number of copies to be filed and served on other parties:

  • insertion of new rule 40E, which incorporates a number of changes to the rules concerning written synopses of arguments and the use of electronic case books. These changes include the following:

    • the written argument (synopsis) may comprise only 25 pages in total and, if a synopsis exceeds that limit, the Registrar must decline to accept it for filing (unless the relevant party has obtained the prior leave of a Judge to file a longer synopsis):

    • the synopsis must comply with any relevant practice note that the Court may issue:

    • the synopses must be accompanied by a chronology of key dates, if appropriate:

    • a party may not argue a point at the hearing if that point is not included in the synopsis, unless the Court gives leave for the point to be argued:

    • the times for filing synopses are extended from 20 to 25 working days for the appellant and from 10 to 15 days for the respondent:

  • changes to rule 43, which deems an appeal to be abandoned if the appellant does not apply for the allocation of a hearing and file the case on appeal within 3 months after the appeal is brought, to give the Registrar the power to suspend the rule from applying for periods of up to 1 month in specified circumstances (new subclauses (1A) and (1B)). The Registrar may exercise the power on an informal application made by the appellant within the 3-month period after the appeal is brought. This power is in addition to the Registrar’s power to extend time under new rule 5A. The Court’s power to grant an extension under rule 43(2) remains unchanged except that the appellant must apply by interlocutory application:

  • insertion of new subclause (3) in rule 45, which applies when a party files an application to introduce further evidence and the opposite party opposes the application. The new provision requires the application to be referred to a Judge to decide whether the application should be heard before or at the substantive hearing of the appeal. This enables the Court to avoid having to adjourn a substantive hearing because, for example, the other party is surprised or prejudiced by the application or its outcome:

  • insertion of new rule 47A, which permits a party to provide the Court with an outline of the party’s argument (road map) at the hearing. However, a new maximum 2-page limit applies and the outline must be cross referenced to the synopsis, the judgment appealed from, and the record of the case:

  • replacement of Schedule 1 to update existing forms and insert additional forms, which are for—

    • an interlocutory application:

    • a notice of appearance by respondent:

    • the abandonment of an appeal:

    • a judgment for sealing:

  • replacement of Schedule 2. For the purposes of assessing costs, this schedule sets out the times allocated for taking specified steps in relation to an application for leave to appeal, an interlocutory application, and an appeal. These are the times considered reasonable for each step and against which the appropriate daily recovery rate is applied. The updated schedule includes new time allocations (relating to interlocutory applications under new Part 2A and preparing a consent memorandum under new rule 19A) and changes to increase the time allocations for preparing a memorandum of opposition to an application for leave to appeal or cross-appeal.

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 13 December 2018.

These rules are administered by the Ministry of Justice.