Court of Appeal (Civil) Amendment Rules 2022

2022/60

Coat of Arms of New Zealand

Court of Appeal (Civil) Amendment Rules 2022

Cindy Kiro, Governor-General

Order in Council

At Wellington this 7th day of March 2022

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 that Act (of whom at least 1 was a Judge of the High Court).

Contents

1Title
2Commencement
3Principal rules
4Rule 3 amended (Interpretation)
5New rules 4A and 4B inserted
4ARegistry hours and Court holidays
4BEmergencies
6Rule 5 amended (Directions)
7Rule 5A amended (Registrar’s powers)
8Rule 8 amended (Correction of accidental slip or omission)
9Rule 10 amended (Filing and service of documents)
10Rule 18 amended (Documents required to accompany application for leave)
11Rule 19A amended (Respondent must respond to application for leave)
12Rule 19B amended (Disposal of application for leave)
13Rule 23 amended (Written submissions on contested application for leave)
14New rule 26C inserted (Court’s power to strike out or stay application for leave)
26CCourt’s power to strike out or stay application for leave
15Rule 27B amended (Mode of bringing interlocutory application)
16Rule 28A revoked (Interpretation in this Part)
17New rule 31A inserted (Documents and fee that must accompany notice of appeal)
31ADocuments and fee that must accompany notice of appeal
18Rule 32 amended (Mode of bringing cross-appeal)
19Rule 33A replaced (Notice of appearance by respondent)
33ANotice of appearance by respondent
20Rule 37 amended (Consequences of failure to comply with requirement to pay security for costs or prescribed fees)
21Rule 38 amended (Allocation of hearing date)
22New rule 39A inserted (Case on appeal and other documents must be provided electronically)
39ACase on appeal and other documents must be provided electronically
23Rule 43 amended (Appeal abandoned if not pursued)
24Rule 45 amended (Application for leave to adduce further evidence)
25Rule 47A amended (Outline of oral argument on appeal)
26Rule 51 amended (Judgments to be sealed and dated)
27Rule 53 amended (Costs at discretion of Court)
28Rule 53B amended (Categorisation of appeals)
29Rule 53C amended (Appropriate daily recovery rates)
30Rule 53D amended (Determination of reasonable time)
31Rule 53G amended (Principles applying to costs on application for leave to appeal)
32Schedule 1AA amended
33Schedule 1 amended
Schedule
New Part 2 inserted into Schedule 1AA
Explanatory note
Administrative Information

Rules

1 Title

These rules are the Court of Appeal (Civil) Amendment Rules 2022.

2 Commencement

These rules come into force on 7 April 2022.

3 Principal rules

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

4 Rule 3 amended (Interpretation)

In rule 3(1), replace the definitions of specified number of court copies and specified number of party copies with:

specified number of court copies means,—

(a)

if the case on appeal will be provided electronically under rule 39A(1), 1 paper copy and 1 electronic copy:

(b)

if the appeal will be heard by a Court of 3 Judges and the case on appeal will not be provided electronically under rule 39A(1), 4 paper copies:

(c)

if the appeal will be heard by a Court of 5 Judges and the case on appeal will not be provided electronically under rule 39A(1), 6 paper copies

specified number of party copies means,—

(a)

if the case on appeal will be provided electronically under rule 39A(1), 1 paper copy and 1 electronic copy:

(b)

if the case on appeal will not be provided electronically under rule 39A(1), 1 paper copy

5 New rules 4A and 4B inserted

After rule 4, insert:

4A Registry hours and Court holidays

(1)

The Registry must be open from 9 am to 5 pm on every day that is not a Court holiday.

(2)

The following are Court holidays for the Court and the Registry:

(a)

the period beginning on Good Friday and ending on the close of the Tuesday after Easter Monday:

(b)

the period beginning on 24 December and ending on the close of 3 January:

(c)

Saturdays and Sundays:

(d)

the Sovereign’s birthday:

(e)

Anzac Day:

(f)

Labour Day:

(g)

Waitangi Day:

(h)

if Anzac Day or Waitangi Day falls on a Saturday or a Sunday, the following Monday:

(i)

the day observed as Wellington Anniversary Day:

(j)

any day that in Wellington is a public holiday or a day observed by the Government as a holiday:

(k)

any day on which the Court or the Registry, or both, are closed under an order made under rule 4B.

(3)

The Holidays Act 2003 overrides subclause (2).

(4)

The Court may sit on a Court holiday if a Judge considers it desirable to do so.

(5)

Despite subclause (4), the Court may sit on a Sunday, Christmas Day, New Year’s Day, or Good Friday only if a Judge considers that the business to be carried out by the Court is extremely urgent.

(6)

If the Court sits on a Court holiday, it may—

(a)

authorise the receipt or issue of any document that complies with these rules; and

(b)

authorise the service of any document received or issued under paragraph (a).

(7)

The Court has a long vacation, which begins on 20 December and ends on the close of 31 January.

(8)

The Court has an Easter vacation, which begins on the Thursday before Good Friday and ends on the close of the Saturday following Easter Sunday.

4B Emergencies

(1)

The President of the Court of Appeal may order the closure of the Court or the Registry if an emergency exists in the place where the Court or the Registry is located.

(2)

The order must specify the dates of the closure, which must not exceed 1 week.

(3)

The President of the Court of Appeal may make orders under subclause (1) for consecutive periods.

(4)

In this rule, an emergency exists in a place if, in respect of that place,—

(a)

an emergency is declared, or an epidemic notice is given, under legislation; or

(b)

a situation exists that—

(i)

is the result of any happening, whether natural or otherwise, including, without limitation, any explosion, earthquake, eruption, tsunami, land movement, flood, storm, tornado, cyclone, serious fire, leakage or spillage of any dangerous gas or substance, technological failure, infestation, plague, epidemic, failure of or disruption to an emergency service or a lifeline utility, or actual or imminent attack or warlike act; and

(ii)

affects, or may affect, the operation of the Court or the Registry.

(5)

The Registrar must ensure that an order made under subclause (1) is immediately advertised in the manner the President of the Court of Appeal directs.

6 Rule 5 amended (Directions)

In rule 5(2), delete “any proceeding or”.

7 Rule 5A amended (Registrar’s powers)

Replace rule 5A(1)(b)(ii) with:

(ii)

if the Court lacks jurisdiction in the matter to which the document relates:

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

In rule 8(2)(b), replace “interlocutory” with “informal”.

9 Rule 10 amended (Filing and service of documents)

After rule 10(7), insert:

(7A)

Despite subclause (1),—

(a)

written submissions (and any accompanying authorities) on a contested application for leave to appeal must be filed in accordance with rule 23; and

(b)

written submissions (and any accompanying authorities) on a contested interlocutory application made in accordance with Part 2A must (by virtue of rule 27C) be filed in accordance with rule 23.

10 Rule 18 amended (Documents required to accompany application for leave)

(1)

In the heading to rule 18, replace “required to” with “and fee that must”.

(2)

After rule 18(1), insert:

(1A)

See also the Court of Appeal Fees Regulations 2001 (for provisions about the filing fee payable or applying for a waiver of the fee).

11 Rule 19A amended (Respondent must respond to application for leave)

(1)

In rule 19A(1), replace “opposes” with “contests”.

(2)

In rule 19A(2), replace “opposes” with “contests”.

12 Rule 19B amended (Disposal of application for leave)

(1)

In rule 19B(1), after “application for leave to appeal”, insert “or does not comply with rule 19A”.

(2)

In rule 19B(2), replace “opposes the application or the respondent does not comply with rule 19A” with “contests the application”.

13 Rule 23 amended (Written submissions on contested application for leave)

(1)

Replace rule 23(1)(a) with:

(a)

file in the Registry 3 paper copies, or 1 paper copy and 1 electronic copy, of—

(i)

the applicant’s written submissions in support of the application; and

(ii)

any authorities that the applicant considers are essential to the submissions; and

(2)

Replace rule 23(3)(a) with:

(a)

file 3 paper copies, or 1 paper copy and 1 electronic copy, of—

(i)

the party’s written submissions; and

(ii)

any additional authorities that the party considers are essential to the submissions; and

14 New rule 26C inserted (Court’s power to strike out or stay application for leave)

After rule 26B, insert:

26C Court’s power to strike out or stay application for leave

(1)

The Court may, on an interlocutory application or on its own initiative, make an order striking out or staying an application for leave to appeal in whole or in part if—

(a)

the applicant 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 applicant has failed to prosecute the application with due diligence and dispatch; or

(c)

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

(2)

The Court must—

(a)

give the applicant 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.

15 Rule 27B amended (Mode of bringing interlocutory application)

(1)

In rule 27B(1), after “Schedule 1”, insert “or in a form to similar effect”.

(2)

In rule 27B(2)(b), replace “opposite” with “other”.

(3)

After rule 27B(2), insert:

(3)

See also the Court of Appeal Fees Regulations 2001 (for provisions about the filing fee payable or applying for a waiver of the fee).

16 Rule 28A revoked (Interpretation in this Part)

Revoke rule 28A.

17 New rule 31A inserted (Documents and fee that must accompany notice of appeal)

After rule 31, insert:

31A Documents and fee that must accompany notice of appeal

(1)

When the notice of appeal is filed, it 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 leave has been granted to appeal that decision, a copy of the decision granting leave; and

(d)

a copy of any separate reasons for the decision granting leave referred to in paragraph (c).

(2)

See also the Court of Appeal Fees Regulations 2001 (for provisions about the filing fee payable or applying for a waiver of the fee).

(3)

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

18 Rule 32 amended (Mode of bringing cross-appeal)

After rule 32(1), insert:

(1A)

See also the Court of Appeal Fees Regulations 2001 (for provisions about the filing fee payable or applying for a waiver of the fee).

19 Rule 33A replaced (Notice of appearance by respondent)

Replace rule 33A with:

33A Notice of appearance by respondent

(1)

The respondent must, within the time specified in subclause (2), file and serve a notice of appearance in form 4 of Schedule 1.

(2)

The time is—

(a)

10 working days after the date on which the appellant’s notice of appeal is served on the respondent; or

(b)

any extended time permitted under these rules.

(3)

If the respondent does not comply with subclause (1), the appellant must promptly—

(a)

notify the Registrar; and

(b)

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

(4)

A respondent who does not comply with subclause (1) is not entitled to be served with notice of any step in the appeal or with copies of any further documents filed in the appeal.

20 Rule 37 amended (Consequences of failure to comply with requirement to pay security for costs or prescribed fees)

After rule 37(2), insert:

(3)

For the purpose of subclause (2), an appellant is not in default of an obligation to pay security for costs or a prescribed fee if—

(a)

a party has applied to the Registrar under rule 35(6) in relation to security for costs, or to the Registrar for a waiver of a fee, and the application has not yet been determined; or

(b)

a party has applied for a review of a Registrar’s decision on an application referred to in paragraph (a) and the review has not yet been determined; or

(c)

a party is seeking leave to appeal or is appealing to the Supreme Court against a decision on a review referred to in paragraph (b), and the application for leave to appeal or the appeal has not yet been determined.

(4)

However, if the circumstances in subclause (3)(a), (b), or (c) apply, see rule 38(5A).

21 Rule 38 amended (Allocation of hearing date)

(1)

Revoke rule 38(3)(a).

(2)

After rule 38(5), insert:

(5A)

However, if the circumstances in rule 37(3)(a), (b), or (c) apply and unless directed by a Judge, the Registrar may not allocate a hearing date until—

(a)

those circumstances no longer apply; and

(b)

the appellant has paid all prescribed fees and security for costs, unless the fees are waived or the requirement for security is dispensed with.

22 New rule 39A inserted (Case on appeal and other documents must be provided electronically)

After rule 39, insert:

39A Case on appeal and other documents must be provided electronically

(1)

The case on appeal must be provided electronically unless a Judge directs otherwise.

(2)

If the case on appeal must be provided electronically, the written synopsis of argument on appeal, bundle of authorities, and list of issues to be determined in the appeal must also be provided electronically, unless a Judge directs otherwise.

23 Rule 43 amended (Appeal abandoned if not pursued)

(1)

Replace rule 43(1A) and (1B) with:

(1A)

Subclause (1) is subject to any extension of time under subclause (4) or (5) or granted by the Registrar or the Court under these rules.

(1B)

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

(a)

the applicant has applied for legal aid and the application has not yet been finally determined or was finally determined within the previous month; or

(b)

a party has applied to the Registrar under rule 35(6) in relation to security for costs, or to the Registrar for a waiver of a fee, and the application has not yet been determined or was determined within the previous month; or

(c)

a party has applied for a review of a Registrar’s decision on an application referred to in paragraph (b) and the review has not yet been determined or was determined within the previous month; or

(d)

a party is seeking leave to appeal or is appealing to the Supreme Court against a decision on a review referred to in paragraph (c), and the application for leave to appeal or the appeal has not yet been determined or was determined within the previous month.

(2)

Replace rule 43(4) and (5) with:

(4)

If the 3-month period calculated under subclause (1) or (3)(b), or any extended period under this rule, includes any days that fall within the period beginning on 25 December in one year and ending on 15 January in the following year, the 3-month period or extended period is extended by the number of those days.

(5)

If the 3-month period calculated under subclause (1) or (3)(b), or any extended period under this rule, ends on a non-working day, the 3-month period or extended period is extended until the next working day.

(3)

In rule 43(8), replace “suspend” with “extend”.

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

In rule 45(3), replace “opposed” with “contested”.

25 Rule 47A amended (Outline of oral argument on appeal)

In rule 47A(4), replace “record” with “case on appeal”.

26 Rule 51 amended (Judgments to be sealed and dated)

Replace rule 51(2) and (2A) with:

(2)

Form 6 of Schedule 1 must be used, but may be modified if necessary.

(2A)

See also the Court of Appeal Fees Regulations 2001 (for provisions about the fee payable or applying for a waiver of the fee).

(2B)

Wherever practicable, the party seeking to seal a judgment must first consult the other party or parties about the wording of the judgment and any order for costs or disbursements.

27 Rule 53 amended (Costs at discretion of Court)

After rule 53(b), insert:

(c)

an interlocutory application.

28 Rule 53B amended (Categorisation of appeals)

In rule 53B(1), replace “rule 53A(b)” with “rule 53A(1)(b)”.

29 Rule 53C amended (Appropriate daily recovery rates)

(1)

In rule 53C(1), replace “rule 53A(c)” with “rule 53A(1)(c)”.

(2)

In rule 53C(3), replace “rule 53A(d)” with “rule 53A(1)(d)”.

30 Rule 53D amended (Determination of reasonable time)

In rule 53D(1), replace “rule 53A(c)” with “rule 53A(1)(c)”.

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

(1)

In rule 53G(1), replace “rule 53A(a)” with “rule 53A(1)(a)”.

(2)

In rule 53G(5)(b), replace “opposed” with “contested”.

32 Schedule 1AA amended

In Schedule 1AA,—

(a)

insert the Part set out in the Schedule of these rules as the last Part; and

(b)

make all necessary consequential amendments.

33 Schedule 1 amended

(1)

In Schedule 1, in the form 1 heading, replace “rr 15, 27B, 30, 33A, 44(1), 56” with “r 15”.

(2)

In Schedule 1, form 1, after note 2, insert:

3

See also the Court of Appeal Fees Regulations 2001 (for provisions about the filing fee payable or applying for a waiver of the fee).

(3)

In Schedule 1, form 2, after note 3, insert:

4

A notice of appeal must be accompanied by—

(a)

a copy of the decision to which the appeal relates; and

(b)

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

(c)

if leave has been granted to appeal that decision, a copy of the decision granting leave; and

(d)

a copy of any separate reasons for the decision granting leave referred to in paragraph (c).

5

See also the Court of Appeal Fees Regulations 2001 (for provisions about the filing fee payable or applying for a waiver of the fee).

(4)

In Schedule 1, form 3, below the footnote, insert:

Notes
1

An interlocutory application must be accompanied by any supporting affidavits.

2

See also the Court of Appeal Fees Regulations 2001 (for provisions about the filing fee payable or applying for a waiver of the fee).

(5)

In Schedule 1, form 4, after the signature line, insert:

Note

If the respondent does not file and serve this notice of appearance within 10 working days after the date on which the notice of appeal was served on them or any extended time permitted under these rules, they will not be entitled to be served with notice of any step in the appeal or with copies of any further documents filed in the appeal.

(6)

In Schedule 1, form 6, after the date of sealing, insert:

Notes
1

See the Court of Appeal Fees Regulations 2001 (for provisions about the fee payable or applying for a waiver of the fee).

2

Wherever practicable, the party seeking to seal a judgment must first consult the other party or parties about the wording of the judgment and any order for costs or disbursements.

3

If the judgment contains an order for costs or disbursements,—

(a)

include a further paragraph in the judgment for sealing, beneath the terms of the judgment, stating that the costs and disbursements referred to in the judgment are as set out in the attached schedule; and

(b)

itemise the costs or disbursements in a schedule attached to the judgment for sealing; and

(c)

provide receipts or other evidence of any disbursements to the Registrar for verification.

Schedule New Part 2 inserted into Schedule 1AA

r 32

Part 2 Provision relating to Court of Appeal (Civil) Amendment Rules 2022

3 Transitional provision

For the purposes of the amendments made to these rules (the principal rules) by the Court of Appeal (Civil) Amendment Rules 2022, clause 2 applies as if—

(a)

amended rules means the principal rules as in force immediately after the commencement of the Court of Appeal (Civil) Amendment Rules 2022; and

(b)

amendment rules means the Court of Appeal (Civil) Amendment Rules 2022; and

(c)

specified appeal—

(i)

means an appeal that is in progress at the time the Court of Appeal (Civil) Amendment Rules 2022 commence; and

(ii)

includes an application for leave to appeal made before the Court of Appeal (Civil) Amendment Rules 2022 commence and that is pending or in progress at the time of the commencement.

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 come into force on 7 April 2022, amend the Court of Appeal (Civil) Rules 2005 (the principal rules).

The rules make changes to the principal rules that are necessary to provide for the Court of Appeal or the Registry being closed because of an emergency where the Court or Registry is located. New rule 4B defines emergency. New rule 4A relates to Registry hours and Court holidays.

The Court of Appeal (Civil) Amendment Rules 2021 updated the principal rules to cater for documents to be filed electronically. These rules include minor amendments related to those changes. Rules 9 and 13, which amend rules 10 and 23 of the principal rules, clarify how many paper copies of documents must be provided to the Court under rule 23 in addition to an electronic copy, and the definitions of specified number of court copies and specified number of party copies have been moved from rule 28A to be listed with other defined terms in rule 3 of the principal rules. New rule 39A specifies that a case on appeal and documents associated with that appeal must be provided electronically, unless a Judge directs otherwise.

New rule 26C sets out the Court’s powers to strike out or stay an application for leave to appeal.

New rule 31A relates to the documents and fee that must accompany the filing of a notice of appeal.

Various rules (mainly, rules that relate to what must be filed) and forms are amended to point to fees payable, and the ability to apply for a waiver of fees, under the Court of Appeal Fees Regulations 2001. The forms in Schedule 1 are amended to add notes, including a list of the documents that must be provided with each form.

Other principal rules amended include—

  • rule 5(2), which is amended to remove a redundant reference to a proceeding:

  • rule 5A, which sets out the Registrar’s powers. Currently, the Registrar may only reject a document that should have been filed in another court. The amendment broadens the Registrar’s power to reject a document for filing on the basis of lack of jurisdiction:

  • rule 8, which is updated to refer to “informal” rather than “interlocutory” applications:

  • rules 19A, 19B, 45, and 53G, which are updated to refer to a respondent “contesting” rather than “opposing” an application for leave. This reflects the wording in section 49(2) of the Senior Courts Act 2016:

  • rule 27B, which explains the process for bringing an interlocutory application. It is amended to allow a party to use a form similar to the form 3 previously specified. A minor amendment is made to refer to “other party” rather than “opposite party”:

  • rule 33A, which is redrafted to include the consequences of a respondent not filing a notice of appearance and what the appellant must do:

  • rule 37, which sets out the consequences of not paying security for costs or prescribed fees on time. The amendments clarify the circumstances when an appellant is not treated as having defaulted on making those payments because certain determinations have not been made:

  • rule 38, which is amended to clarify that a Registrar may not (unless a Judge directs) allocate a hearing date until the appellant has paid all prescribed fees and security for costs (unless waived or dispensed with):

  • rule 43 (appeal abandoned if not pursued), which is amended to update the terminology to refer to the Registrar’s ability to grant “extensions” rather than “suspensions” of time. The changes also solve the timing issues when review judgments, etc, are delivered a few days before the appellant must comply with rule 43(1), allow the period from 25 December to 15 January to be excluded from the calculation of the 3-month period or extended period under that rule, and deal with periods that end on non-working days:

  • rule 47A (outline of oral argument on appeal), in which a minor change is made to the name of one of the items that an outline must be cross-referenced to (“record” is replaced with “case on appeal”):

  • rule 53, which is amended to clarify that the Court may order costs in respect of an interlocutory application:

  • rules 53B, 53C, 53D, and 53G, which are amended to include a subclause in the cross-references.

Issued under the authority of the Legislation Act 2019.

Date of notification in Gazette: 10 March 2022.

These rules are administered by the Ministry of Justice.