Supreme Court of New Zealand


The Supreme Court of New Zealand is the highest court and the court of last resort of New Zealand. It formally came into being on 1 January 2004 and sat for the first time on 1 July 2004. It replaced the right of appeal to the Judicial Committee of the Privy Council, based in London. It was created with the passing of the Supreme Court Act 2003, on 15 October 2003. At the time, the creation of the Supreme Court and the abolition of appeals to the Privy Council were controversial constitutional changes in New Zealand. The Act was repealed on 1 March 2017 and superseded by the Senior Courts Act 2016.
It should not be confused with New Zealand's "old" Supreme Court, which was a superior court that was established in 1841 and continued in 1980 as the High Court of New Zealand. The name was changed in anticipation of the eventual creation of a final court of appeal for New Zealand that would be called the "Supreme Court".

Composition

The inaugural bench were the most senior judges of the New Zealand Court of Appeal at the time. Their appointment to the new Court was said to have been based on seniority and merit. The maximum bench under statute is six judges.
Several acting judges have also been appointed to sit whenever a permanent judge was unable to do so due to illness or a conflict of interest. These judges were appointed from the retired judges of the Court of Appeal and including Justices Sir John Henry, Sir Ted Thomas, former President of the Court of Appeal Sir Ivor Richardson and former Chief Justice Sir Thomas Eichelbaum. Acting judges only sit on substantive appeals, and not applications for leave, due to the requirement for appeals to be heard en banc by five judges.
On 4 May 2005, Attorney General Michael Cullen announced the appointment of Justice Sir John McGrath of the Court of Appeal to the Supreme Court bench as its sixth permanent judge. On 21 February 2006, the Honourable Sir Noel Anderson was appointed to the Supreme Court. Thus the promotion of the most senior Court of Appeal member has continued. This practice was broken with the appointment of Justice Bill Wilson in December 2007 after having served less than a year as a judge of the Court of Appeal.

Eligibility to be a justice of the Supreme Court

Under section 94 of the Senior Courts Act 2016 an existing judge can only be appointed a Supreme Court justice if already a member of the Court of Appeal or the High Court. If the person is not a member of either of those courts, the candidate must be appointed as a High Court judge at the same time as taking office in the Supreme Court.

Background

While the suggestion of ending appeals to the Privy Council had been around since the Statute of Westminster Adoption Act 1947, proposals to end appeals to the Privy Council began in the late 1970s, when a Royal Commission on the judiciary canvassed arguments for replacing the Privy Council. In the early 1980s, Minister of Justice Jim McLay suggested their abolition. Proposals for an indigenous final appellate court can be traced back to 1985. In 1996, Paul East, Attorney-General of the Bolger government, proposed to end the status of the Privy Council as the country's highest court of appeal. The proposal got as far as a Bill being introduced into Parliament. However, this Bill met with little support from within the National Party, and the Bill was not carried over by the next Parliament following the 1996 general election.
The policy was resurrected in 1999 by the Fifth Labour Government of 19992008. A discussion paper, Reshaping New Zealand's Appeal Structure attracted 70 submissions. A year later a Ministerial Action Group was formed to assist Ministers in designing the purpose, structure and make-up of a final court of appeal. The Group's report, Replacing the Privy Council: A New Supreme Court was published in April 2002, before the general election a few months later.
Upon the re-election at the 2002 New Zealand general election, as part of the Labour Party's election manifesto, the Attorney-General, Labour's Margaret Wilson, introduced the Supreme Court Bill to create the Supreme Court and abolish appeals to the Privy Council on 9 December 2002. A Campaign for the Privy Council was established to lobby against the abolition of appeals. Many business and community groups joined the opposition to the ending of appeals. The Monarchist League of New Zealand opposed the abolition of appeals, stating
Margaret Wilson argued in favour of the Bill, stating:

Select Committee

At select committee, the Bill attracted numerous submissions for and against creating the Supreme Court. Notable supporters of the Supreme Court were former President of the Court of Appeal, Lord of Appeal in Ordinary, and Privy Councillor Lord Cooke of Thorndon and former Prime Minister Sir Geoffrey Palmer, while most senior lawyers were opposed to the change. The Monarchist League complained the majority of members of the select committee were motivated by a "republican agenda".

Third reading

The Supreme Court Act 2003 passed its third reading by a relatively small margin – the governing Labour and Progressive parties, supported by the Greens, voted in favour, while the National, New Zealand First, ACT New Zealand, and United Future parties voted against. It received Royal Assent on 17 October 2003, with commencement on 1 January 2004.
In 2008, National leader John Key ruled out any abolition of the Supreme Court and return to the Privy Council.

Referendum petition

After the Opposition parties unsuccessfully called for a national referendum on the matter, Auckland lawyer Dennis J Gates launched a petition for a non-binding citizens initiated referendum on 3 April 2003, asking the question "Should all rights of appeal to the Privy Council be abolished?". The petition failed to gain the 310,000 signatures of registered electors needed and lapsed on 2 July 2004.

Appointments

One issue that was particularly contentious as the Bill was being debated in Parliament was the appointment of judges to the Court, with opposition parties claiming that the Attorney-General would make partisan choices. These concerns were because the entire bench was to be appointed simultaneously, and no clear statement had been made about how they would be selected. However, the level of concern was considerably lessened when Wilson announced that the appointments would be based on merit and seniority. Appointments to the Court were expected and unsurprising. The most senior Justices on the Court of Appeal were appointed to the new Court.

Cases

One of the grounds advanced for the creation of the Court was that it would allow more people to have access to the country's highest appellate court. From 1851 until 2002, the Privy Council made 268 decisions relating to New Zealand. In the ten years from 1992–2002, only 21 decisions had been allowed with respect to New Zealand. The Supreme Court hears many more cases than were heard by the Judicial Committee of the Privy Council due to its jurisdiction being considerably broader. For example, cases in the areas of employment, criminal and family law can be heard by the Supreme Court, whereas previously cases in both areas of law could normally progress no further than the Court of Appeal. The proximity of the Court is another factor that is likely to contribute to it hearing an increased number of appeals and also allows appeals to be heard and determined considerable faster than under the former system.
The Court has heard many applications for leave. It has also heard many substantive appeals. Notable substantive cases include:
The Supreme Court sits in Wellington. Until the Court's new $80.7 million home was built, beside and expanding into the historic High Court building, the court was housed in temporary facilities located in the High Court in Wellington with offices located in Old Government Buildings. The building was formally opened on 18 January 2010 by Prince William.
The upper portion of the building's exterior is surrounded by a bronze screen and red glass facade. The forms were inspired by the intertwining of rātā and pohutukawa trees. The interior follows a similar theme; the court room is oval shaped with tiled walls mimicking the shape of a kauri cone.

Leave

Unlike some other final appellate courts internationally, there is no automatic right of appeal to the Supreme Court of New Zealand. All appeals are by leave granted by the Supreme Court. No lower courts may grant leave to appeal.
Leave is granted or declined based on a number of factors listed in section 74 of the Senior Courts Act, with the overarching principle being that it must be necessary in the interests of justice for the Court to hear the appeal. Leave applications may be determined by any two permanent judges of the court based on the written submission of the parties without an oral hearing; however, they are normally determined by a panel of three. The judges determining the application can decide to hold an oral hearing if they wish.
This system is also in place in the United Kingdom where the Supreme Court of the United Kingdom, the highest court of appeal in the United Kingdom, also must grant leave for appeal for cases to be heard before it. The same is true for appeals to the Court of Final Appeal of Hong Kong. Similarly, most litigants seeking to appeal to the Constitutional Court of South Africa, Supreme Court of the United States, Supreme Court of Canada or High Court of Australia require leave before their case can be heard – although there are some exceptions to this in the latter three courts.

Criticism

Since its foundation, the Supreme Court has been subject to "unprecedented public criticism". The quality of several Supreme Court judgments have been criticised in New Zealand and overseas, and concerns expressed about the impact on the country's case law and international reputation. The major criticisms are the Supreme Court's lack of experience and its membership being drawn initially from the Court of Appeal. Defenders of the court argue that it has provided easier access to the courts. They also note that the argument that the court would not be independent has been disproved by the Supreme Court's willingness to overrule decisions of the Court of Appeal.
Prior to abolition the Privy Council heard up to 12 cases from New Zealand a year. From its creation through May 2012, the Supreme Court heard an average of 29 substantive appeals annually.

List of Judges of the Supreme Court

JudgeTook officeMandatory retirement
1Rt Hon. Chief Justice Dame Helen Winkelmann 14 March 20192032
2Hon. Justice Sir William Young 1 July 201014 April 2022
3Hon. Justice Dame Susan Glazebrook 6 August 20128 February 2026
4Hon. Justice Sir Mark O'Regan 1 September 20142023
5Hon. Justice Dame Ellen France 22 July 20162026
6Hon. Justice Sir Joe Williams 2 May 20192031

Former judges