From Discretion to Deference: A Necessary Simplification of New Zealand’s Appellate Landscape

Abstract

A consensus grows; New Zealand’s appellate landscape is in a confused state. The current appellate exercise involves placing rich, multifaceted and complex decisions into narrow, separate and distinct categories. An appellant’s prospects of success depend on these rigid categorisations. Refusal to acknowledge the flaws of this approach has lead to judicial divergence. Inconsistent judicial application perplexes lawyers, academics, and litigants alike. Reform is necessary. To achieve this reform, I propose formal judicial recognition of respectful deference.

Respectful deference involves jettisoning the troublesome categories, encouraging appellate courts to apply broad, contextual reasoning. It searches for the unique circumstances of a case — not which label fits best. The merits of each case will determine an appellant’s prospects. And there is good news. New Zealand is already headed in this direction. Recent cases have implicitly departed from the congeries of categorisation and into the fertile pastures of contextual reasoning. By explicitly recognising this departure, respectful deference will ensure greater fairness and simplicity for all who encounter New Zealand’s appellate landscape.