Court of Appeal Act 1882
Court of Appeal Act 1882
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Court of Appeal Act 1882
Court of Appeal Act 1882
Public Act |
1882 No 30 |
|
Date of assent |
13 September 1882 |
|
Contents
An Act to establish a Court of Appeal for the Colony of New Zealand.
BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:—
1 Short Title.
The Short Title of this Act is “The Court of Appeal Act, 1882.”
2 Interpretation.
In the construction of this Act, unless there is anything in the subject or context repugnant thereto, the several words mentioned in clause two of “The Supreme Court Act, 1882,”
shall have and include the same meanings as in that Act, and the term “inferior Court”
in this Act shall mean and include all Courts of judicature within the colony of inferior jurisdiction to the Supreme Court.
3 Constitution of the Court.
There shall be a Court of record in the colony, which shall be called the Court of Appeal of New Zealand.
4 Judges.
The Judges of the Supreme Court of the said colony for the time being shall be the Judges of the Court of Appeal.
5 Quorum of Judges.
Any two or more of the said Judges shall have power to act as the Court of Appeal, provided that two Judges at least shall concur in every decision of such Court.
6 Judgments to be in accordance with the opinion of the majority.
The judgment of the Court shall be in accordance with the opinion of the majority of the Judges present. The Chief Justice, or in his absence the senior Judge, shall preside in the said Court.
7 Decision appealed from to be affirmed when Judges equally divided.
If the Judges present shall be equally divided in opinion, the judgment, decree, or order appealed from or under review shall be deemed to be affirmed.
8 Time and place of sittings.
The Court shall hold its sittings at such times and places as shall be from time to time fixed by the Governor in Council, and proclaimed in the Government Gazette twenty-one days at least before the times so fixed respectively.
9 Adjournment of Court.
The Court shall have power to adjourn its sittings from time to time till such time and to such place as to it shall seem fit.
10 Adjournment in cases of absence of some of the Judges.
Whenever, by reason of the absence of all or any one or more of the Judges of the Court of Appeal at the time appointed for the sitting of the said Court, or any adjournment thereof, it shall be necessary to adjourn the sitting of the said Court to a future day, it shall be lawful for any one or more of the Judges of the said Court at the time appointed for such sitting, or at the time of any adjournment thereof, or for the Registrar of the said Court in case none of the Judges thereof shall be present, to adjourn or further adjourn such sitting to such future day and hour as such Judge or Judges or such Registrar shall think fit.
11 Power to remit proceedings to the Supreme Court.
The Court of Appeal shall have power to remit any proceedings in any cause pending before it to the Supreme Court or a single Judge thereof.
12 Judgments of Court of Appeal may be enforced by the Supreme Court.
All orders, judgments, and decrees of the Court of Appeal may be enforced by the Supreme Court as if they had been made by the Supreme Court.
CIVIL JURISDICTION (1.) Removal of Proceedings from the Supreme Court
13 Proceedings in Supreme Court may be removed into Court of Appeal by consent.
The Supreme Court may by consent of the parties order the removal into the Court of Appeal of the following proceedings, that is to say,—
(1.)
Any rule nisi granted;
(2.)
Any notice of motion made;
(3.)
Any petition presented;
(4.)
Any special case stated;
(5.)
Any question of law ordered to be argued;
(6.)
Facts stated by a jury that has not found for either party: and on removal the Court of Appeal shall have the same power to adjudicate on the proceedings as the Supreme Court had.
14 Decision of Court of Appeal final as regards tribunals of the colony.
On the removal of any case from the Supreme Court to the Court of Appeal under section thirteen of this Act, the decision of the Court of Appeal shall be final as regards the tribunals of the colony, and the same judgment shall be entered up in the Supreme Court, and the same execution and other consequences and proceedings shall follow thereon, as if the decision had been given in the Supreme Court: Provided that the Court of Appeal may give leave to either party to appeal to the Privy Council.
(2.) Appeals from Decisions of the Supreme Court
15 Court may hear appeals from judgments and orders of the Supreme Court.
The said Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order, save as hereinafter mentioned, of the Supreme Court, subject to the provisions of this Act, and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.
16 No appeal on appeals from inferior Courts without leave.
The determination of the Supreme Court on appeals from inferior Courts shall be final unless leave to appeal from the same to the Court of Appeal shall be given.
(3.) Appeals from Inferior Courts
17 Direct appeal from decision of inferior Courts.
If either party in any cause in any inferior Court having extended jurisdiction shall be dissatisfied with the determination or direction of the Court in point of law, or upon the admission or rejection of any evidence, and shall intimate the same and state the ground or grounds of dissatisfaction to the Judge of the said Court either at the hearing of the cause or within six days after such determination or direction, and the Judge shall certify under his hand such ground or grounds of dissatisfaction, and that such ground or grounds seem in his opinion to involve some question of law of considerable difficulty or great importance, the party so dissatisfied may appeal directly to the Court of Appeal; and on notice of such appeal and of such certificate and grounds being given to the other party or his solicitor, and also on security being given, such proceedings shall be had, such case stated and settled, and such judgment or order shall be made by the said Court of Appeal, as if the said appeal had been made to the Supreme Court; and the judgment of the Court of Appeal on the said appeal shall be final.
CRIMINAL JURISDICTION (1.) Trial at Bar
18 Trial at bar.
When any bill of indictment has been found in the Supreme Court or at a Circuit Court thereof, or any inquisition has been found, or any criminal information been granted against any person for any crime or misdemeanour, if it shall be made to appear to the Supreme Court on affidavit on the part of the accused or of the prosecutor that the case is one of extraordinary importance or difficulty, and that it is desirable that it should be tried before the Judges at bar, the Supreme Court may grant a rule nisi, and, if no sufficient cause be shown, may make the same absolute for the removal of such indictment, inquisition, or information, and the proceedings thereon, into the Court of Appeal, and for the trial of the same at bar at the next or other sitting of such Court of Appeal, and may direct that a special or common jury, as the Supreme Court shall think fit, be summoned from the judicial district in which the alleged offence was committed or the accused was apprehended, or from the judicial district in which such sitting of the Court of Appeal shall take place (or from some other judicial district if sufficient reason be shown to the Court), to serve upon such trial; and such proceedings, as nearly as may be, shall thereupon be had as upon a trial at bar in England; and the said Court of Appeal shall have the same jurisdiction, authority, and power in respect thereof as the Queen’s Bench Division of Her Majesty’s High Court of Justice has in England in respect of a trial at bar.
(2.) Appeals from Convictions
19 Appeal from judgment of Supreme Court on conviction.
Any party aggrieved by the judgment of the Supreme Court on any conviction or order removed into such Court or on appeal against any such order may appeal to the Court of Appeal, and the same proceedings shall be taken for the transmission of the documents into such last-mentioned Court, and for the hearing and determining of such appeal, as in civil cases, and the said Court of Appeal shall have power to give such judgment upon such appeal as the said Supreme Court might have done, besides judgment for the costs of the appeal.
(3.) Cases reserved by the Judges
20 Power of Judge of Supreme Court to reserve cases.
When any person shall have been convicted of any treason, felony, or misdemeanour, before any Court presided over by a Judge of the Supreme Court, such Judge may in his discretion reserve any question of law which shall have arisen on the trial, or within thirty days thereafter, for the consideration of the Court of Appeal, and thereupon he shall have authority to respite execution of the judgment on such conviction, or postpone the judgment until such question shall have been considered and decided, as he may think fit; and in either case the Court in its discretion shall commit the person convicted to prison, or shall take a recognizance of bail with one or two sufficient sureties, and in such sum as the Court shall think fit, conditioned to appear at such time as the Court shall direct, and receive judgment, or to render himself in execution as the case may be.
21 Powers and procedure of Court on reserved cases. Bail.
The Court of Appeal shall have full power and authority to hear and finally determine every such question of law as last mentioned, and thereupon to reverse, affirm, or amend any judgment which shall have been given on the indictment, information, or inquisition on the trial whereof such question has arisen, or to avoid any such judgment, and to order an entry to be made on the record that, in the judgment of the said Court of Appeal, the party convicted ought not to have been convicted, or to arrest the judgment, or to order judgment to be given thereon at the next sittings of the Court in which the case was tried if no judgment shall have been given before that time, as it shall be advised, or to make such other order as justice may require; and such judgment and order, if any, of the said Court of Appeal shall be certified under the hand of the presiding Judge to the Registrar or other proper officer of the Court in which the case was tried, who shall enter the same on the record in proper form: and a certificate of such entry under the hand of such Registrar or officer shall be delivered or transmitted by him to the gaoler in whose custody the person convicted shall be, if he has not been admitted to bail, or to whose custody he ought to be committed if the conviction should be affirmed, and, if the judgment shall have been reversed, avoided, or arrested, such certificate shall be a sufficient warrant to the said gaoler to discharge the person so convicted, if in custody, out of his custody; or, if the person convicted shall have been admitted to bail, the Court or Judge which shall have so admitted him shall, on the production of such certificate, vacate the recognizances of bail; and, if the judgment shall have been affirmed, or so altered that execution is to follow thereon against the party convicted, such certificate shall be sufficient warrant to such gaoler as aforesaid to execute and carry out such judgment so affirmed or so altered as aforesaid; and, if the Court of Appeal shall direct the Court before whom such person was convicted to give judgment, then such last-mentioned Court shall at its next sittings, on the production of such certificate, proceed to give judgment accordingly.
22 Counsel may be heard, and judgment shall be given in open Court.
On the hearing of any question so reserved as last aforesaid the Court of Appeal shall hear the party convicted and the party prosecuting, or their counsel, or either of them, if they or either of them appear; and shall pronounce judgment in open Court, whether the parties or either of them have appeared, in person or by counsel, or not.
23 Judge of Supreme Court may reserve for Court of Appeal questions reserved by inferior Courts.
In case the Judge of any inferior Court shall have reserved any question of law for the opinion of the Supreme Court, the Judge of the Supreme Court before whom such question shall be brought may, if he think fit, reserve the same for the consideration and determination of the Court of Appeal; and the same proceedings, so far as they are applicable, shall thereupon be had as if the question had been reserved by the Judge of the Supreme Court at a sitting of the Circuit Court before him: Provided that in every such case the said Court of Appeal, on hearing and determining such question, shall direct the Judge of the inferior Court to give judgment at his next sittings, and he then shall give judgment pursuant to the determination of the Court of Appeal thereon.
(4.) Practice of the Court
24 Rules regulating practice of the Court.
Subject to the power of revocation and alteration hereinafter contained, the practice and procedure of the Court of Appeal shall be regulated by the rules contained in the Schedule hereto, except only in those matters as to which any other practice and procedure is provided by this Act.
25 Power to make new rules.
It shall be lawful for the Judges of the Court of Appeal, or any three of them, from time to time, by other rules to be made for that purpose, to alter or revoke the said rules or any of them, or any other rules which may hereafter be in force; and also from time to time to make such additional rules touching the practice and procedure of the Court in all causes and matters within the jurisdiction of the Court as the Judges may deem advisable, and all rules so made or altered shall have the same force and effect as if they had been inserted in the Schedule to this Act.
MISCELLANEOUS
26 Governor may appoint officers.
The Governor may from time to time appoint such Registrars, Deputy-Registrar, ushers, clerks, criers, and other officers as may be required for the conduct of the business of the Court, who shall severally hold office during the Governor’s pleasure, provided that, until such appointment by the Governor, it shall be competent for any Registrar, Deputy-Registrar, usher, clerk, crier, or other officer for the time being of the Supreme Court to act in the like capacity within his district in the Court of Appeal.
27 Powers and duties of officers.
All such Registrars and other officers as in the last section mentioned shall have in respect of such Court of Appeal such powers and duties as the said Court of Appeal shall prescribe by rules made under the provisions of this Act.
28 Court seal.
The Court shall have in the custody of the Registrar or Deputy-Registrar a seal for the sealing of writs, orders, decrees, office copies, certificates, reports, and other instruments issued by such Registrar and requiring to be sealed.
29 Power to settle fees.
The Judges of the Court of Appeal, or any three of them, shall have power from time to time, with the consent of the Governor in Council, to settle a scale of fees, and with such approval as aforesaid to alter such scale, and all fees payable under this Act shall be taken and deemed to be fees of the Supreme Court. Until a scale has been settled, the fees for proceedings in the Court of Appeal shall be the same as those in the Supreme Court in respect of similar proceedings.
30 Operation.
This Act shall come into operation on the first day of January, one thousand eight hundred and eighty-three.
31 Repeal.
“The Court of Appeal Act, 1862,”
and “The Court of Appeal Act Amendment Act, 1870,”
are hereby repealed; but this repeal shall not affect proceedings pending or incomplete under the said Acts, or either of them, and such proceedings may be carried on and completed as if this Act had not been passed.
Schedule Rules
Sec. 24.
1.
Bills of exceptions and proceedings in error shall be abolished.
2.
All appeals to the Court of Appeal shall be by way of rehearing, and shall be brought by notice of motion in a summary way, and no petition, case, or other formal proceeding other than such notice shall be necessary. The appellant may, by the notice of motion, appeal from the whole or any part of any judgment or order, and the notice of motion shall state whether the whole or any part only of such judgment or order is complained of, and, in the latter case, shall specify such part.
3.
The notice of appeal shall be served upon all parties directly affected by the appeal, and it shall not be necessary to serve parties not so affected, but the Court of Appeal may direct notice of the appeal to be served on all or any parties to the action or other proceeding, or upon any person not a party; and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may seem just, and may give such judgment and make such order as might have been given or made if the persons served with such notice had been originally parties. Any notice of appeal may be amended at any time as to the Court of Appeal may seem fit.
4.
Notice of appeal from any judgment, whether final or interlocutory, shall be a fourteen days’ notice, and notice of appeal from an interlocutory order shall be a seven days’ notice.
5.
The Court of Appeal shall have all the powers and duties as to amendment and otherwise of the Court of first instance, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an Examiner or Commission. Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial, or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Court. The Court of Appeal shall have power to give any judgment, and make any order which ought to have been made, and to make such further or other order as the case may require. The powers aforesaid may be exercised by the said Court notwithstanding that the notice of appeal may be that part only of the decision may be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal, or of any other proceedings in the Court, as may seem just.
6.
It shall not under any circumstances be necessary for a respondent to give notice of motion by way of cross-appeal, but, if a respondent intends upon the hearing of the appeal to contend that the decision of the Court below should be varied, he shall, within the time specified in the next rule, or such time as may be prescribed by special order, give notice of such intention to any parties who may be affected by such contention. The omission to give such notice shall not diminish the powers conferred by the Act upon the Court of Appeal, but may in the discretion of the Court be ground for an adjournment of the appeal, or for a special order as to costs.
7.
Subject to any special order which may be made, notice by a respondent under the last preceding rule shall, in the case of any appeal from a final judgment, be an eight days’ notice, and, in the case of an appeal from an interlocutory order, a four days’ notice.
8.
The party appealing from a judgment or order shall produce to the proper officer of the Court of Appeal the judgment or order, or an office copy thereof, and shall leave with him a copy of the notice of appeal to be filed, and such officer shall thereupon set down the appeal by entering the same in the proper list of appeals; and it shall come on to be heard according to its order in such list, unless the Court of Appeal or a Judge thereof shall otherwise direct, but so as not to come into the paper for hearing before the day named in the notice of appeal.
9.
The time for appealing from any order or decision made or given in the matter of the winding-up of a company under the provisions of “The Companies Act, 1882,”
or any Act amending the same, or any order or decision made in the matter of any bankruptcy, or in any other matter not being an action, shall be the same as the time limited for an appeal from an interlocutory order under Rule 15.
10.
Where an ex parte application has been refused by the Court below, an application for a similar purpose may be made to the Court of Appeal ex parte at its next sitting.
11.
When any question of fact is involved in an appeal, the evidence taken in the Court below bearing on such question shall, subject to any special order, be brought before the Court of Appeal as follows: (a.) As to any evidence taken by affidavit by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed; (b.) As to any evidence given orally by the production of a copy of the Judge’s notes, or such other materials as the Court may deem expedient.
12.
Where any evidence has not been printed in the Court below, the Court below may order the whole or any part thereof to be printed for the purpose of the appeal. Any party printing evidence for the purpose of an appeal without such order shall bear the costs thereof, unless the Court of Appeal shall otherwise order.
13.
If upon the hearing of an appeal a question arise to the ruling or direction of the Judge to a jury, the Court shall have regard to verified notes or other evidence, and to such other materials as the Court may deem expedient.
14.
No interlocutory order or rule from which there has been no appeal shall operate so as to bar or prejudice the Court of Appeal from giving such decision upon the appeal as may seem just.
15.
No appeal from any interlocutory order shall, except by special leave of the Court of Appeal, be brought after the expiration of thirty days, and no other appeal shall, except by such leave, be brought after the expiration of one year. The said respective periods shall be calculated from the time at which the judgment or order is signed, entered, or otherwise perfected, or in the case of the refusal of an application from the date of such refusal. Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Court of Appeal.
16.
An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the Court appealed from, or any Judge thereof, or the Court of Appeal may so order, and no intermediate act or proceeding shall be invalidated, except so far as the Court appealed from may direct.
17.
Every application to the Court of Appeal shall be by motion, and the provisions of the Code of Civil Procedure for the Supreme Court as to motions shall apply thereto.
18.
Due security for costs, and for the performance of the judgment of the Court of Appeal, shall, within six days after the notice of appeal has been given, be given to the satisfaction of the Registrar of the Court appealed from, unless the Court of first instance otherwise orders; and if no such security be given the notice of appeal shall be deemed abandoned.
Affidavits
19.
Affidavits made in matters pending in the Supreme Court may be used in the Court of Appeal.
20.
Affidavits made in the matter of an appeal after notice of appeal given, or leave to appeal granted, shall be intituled “In the Court of Appeal of New Zealand.”
21.
Affidavits made “In the Court of Appeal”
must be filed with the Registrar of the Court for the time being; and a copy of every such affidavit must be transmitted by the appellant to each Judge of the Court along with the special case.
Costs of Proceedings
22.
The costs of proceedings in the Court of Appeal shall be according to the following scale:—
Drawing and settling case: Under £200, £2 2s.; £200 to £500, £5 5s.; over £500, £7 7s.
Cost of printing: Whatever the amount paid.
Setting down and arguing case to judgment: Under £200, £15 15s.; £200 to £500, £35; over £500, £60.
If case is from a distance: £50 per cent extra.
If affidavits allowed, or evidence taken orally, Court of Appeal to fix costs of such.
If money not claimed, Court to decide under what scale, according to importance of case.
If different questions involved, Court may apportion costs.
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Versions
Court of Appeal Act 1882
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