Application for conditional leave to appeal to the Privy Council dismissed with costs

Summary

The Court of Appeal has dismissed an application for conditional leave to appeal to the Privy Council against a judgment of the Court of Appeal dated 7 March 2005. The Court found the transitional provisions in the Supreme Court Act 2003 do not operate in favour of a prospective appellant, merely because the High Court delivered a judgment in the matter before 31 December 2003. The appeal to the Court of Appeal must have also been heard before 1 January 2004, even if judgment was delivered later, for a further right of appeal to the Privy Council to exist.

Facts

On 29 January 2004, the CIR filed an appeal in the Court of Appeal against a decision of the High Court delivered by Venning J on 11 December 2003. The appeal was heard on 15 February 2005, and a judgment allowing the appeal was delivered on 7 March 2005. The respondent filed an application for conditional leave to appeal to the Privy Council.

Appeals to the Privy Council were abolished by the Supreme Court Act 2003, section 42 of which provides:

42 Ending of appeals to Her Majesty in Council

1. No appeal to her Majesty in Council lies or may be brought from or in respect of any civil or criminal decision of a New Zealand court made after 31 December 2003 -
   1. whether by leave or special leave of any court or of her Majesty in Council, or otherwise; and
   2. whether by virtue of any Act of Parliament of the United Kingdom or of New Zealand, or the Royal prerogative, or otherwise.
2. Subsection (1) is subject to section 50.

The Supreme Court Act contains a transitional provision in respect of decisions of the Court of Appeal made before 1 January 2004 or made after 31 December 2003 in a proceeding whose hearing was completed before 1 January 2004. The saving provision is section 50 of the Supreme Court Act. Of particular relevance is subsection1(a) which provides as follows:

50. Privy Council may still determine appeals in certain existing proceedings

1. The Privy Council may hear and determine, or continue to hear and determine, -
   1. an appeal against a final judgment of the Court of Appeal made before 1 January 2004, or made after 31 December 2003 in a proceeding whose hearing was completed before 1 January 2004, where
      1. the matter in dispute on the appeal amounts to or is of the value of $5,000 or upwards; or
      2. the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $5,000 or upwards;

The respondent contended that its case came within the dispensing scope of section 50(1)(a) submitting that on a proper construction of the provision, the reference to the "proceeding whose hearing was completed" is a reference to the High Court proceeding and the High Court hearing. On this approach a right of appeal would lie to the Privy Council because the High Court proceeding was heard and determined before 1 January 2004.

Decision

The Court held that it was inconceivable that Parliament, in repatriating appeals by way of the Supreme Court Act, could have intended to continue a right of appeal against a decision of the Court of Appeal, not by reference to the timing of that decision but by reference to a lower Court's decision in respect of which an appeal right had been exercised and dealt with.

If there was an ambiguity, it would have to be in terms of the possibility that the words "whose hearing" in section 50(1)(a) could mean "whose hearing in the High Court," but the Court considered that was not tenable, because all exemptions from the section 42 barrier, described in section 50(1), relate to final judgments or decisions of the Court of Appeal. There was no exemption for decisions of the High Court, notwithstanding that the New Zealand (Appeals to the Privy Council) Order 1910, Rule 2(c) provided for a right of appeal directly from the High Court. The Supreme Court Act has only preserved appeals from the Court of Appeal in limited circumstances, and abolished appeals from the High Court, so it cannot be the case that Parliament intended the disposal of the proceedings in the High Court to have significance.

The Court dismissed the application for conditional leave and ordered costs of $1,500 in favour of the Commissioner.