NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
The threshold is higher for a second appeal, particu- larly for leave to appeal to the Supreme Court, which will only be granted if hearing the appeal is necessary in the interests of justice (ie, it involves a matter of general importance or commercial significance, or to avoid a substantial miscarriage of justice). 10.3 Procedure for Taking an Appeal The procedure for taking an appeal depends on the specific court, tribunal or authority involved, as well as any relevant legislation. Generally, the process begins by filing a notice of appeal or an application for leave to appeal in the appropriate court or tribunal. The timeframe for lodging an appeal is typically gov- erned by the enactment conferring the right of appeal or, if the enactment is silent, by the applicable court rules. The triggering event for the appeal period is usually the date the decision appealed against is given or communicated to the appellant, regardless of when reasons are provided or when formal steps, such as entering or sealing the decision, occur. 10.4 Issues Considered by the Appeal Court at an Appeal Appeals are often by way of rehearing. This means the appeal court is able to consider all the material presented to the original decision-maker and come to its own judgment. This evidence is presented to the appeal court by way of a transcript of the original hearing; the court does not hear from the witnesses directly a second time. New evidence will only be admitted, with leave of the appeal court, where there are special reasons for doing so. The appeal court may defer to the original decision- maker on its assessment of the credibility of witnesses (having heard from them first hand) or its assessment of the facts, if the original decision-maker is an expert body. Where the decision under appeal involves the exercise of judicial discretion, the appellant must show that the judge erred in law, failed to consider a relevant point (or considered an irrelevant point) or was plainly wrong.
Certain decisions may only be appealed on points of law, including decisions of the Environment Court and Immigration Tribunal. 10.5 Court-Imposed Conditions on Granting an Appeal New Zealand courts typically have the power to make any order they think just on granting an appeal or leave to appeal, including by imposing conditions. Condi- tions commonly include payment of security for costs, but may also include any other requirements the court considered appropriate in the circumstances. 10.6 Powers of the Appellate Court After an Appeal Hearing New Zealand appellate courts have broad powers to make any order they think just. In general, when grant- ing an appeal, the appellate court will quash the deci- sion of the court at first instance (in whole or in part) and substitute its own. An appellate court may also direct the first instance court to rehear the matter (or any part of the matter). 11. Costs 11.1 Responsibility for Paying the Costs of Litigation Parties are responsible for paying their own litigation costs, including legal fees and court filing and hearing fees, unless they arrange other funding. Where a party is successful, they are usually entitled to scale costs and disbursements (see 4.6 Costs of Interim Applications/Motions ). The court has broad discretion as to costs, and may reduce scale costs or increase a costs award up to the actual costs, disbursements and witness expenses reasonably incurred by a party (see 11.2 Factors Considered When Awarding Costs ). Disbursements are expenses incurred for a proceed- ing that would ordinarily be charged separately from legal professional services in a solicitors’ bill of costs. They include court fees and expert witness fees. The courts often encourage parties to agree the costs and disbursement to be paid. If agreement cannot be
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