Leaving it to Chance? An Examination of Leave Decisions of the Supreme Court

Abstract

The Supreme Court of New Zealand is New Zealand’s highest court. It is the final opportunity in the appellate process. As the highest court, its decisions are binding on all the lower courts. This means that its decisions do not face the same scrutiny as cases that progress up the tiers of appeal. As an independent branch of government it is largely unchecked by the Executive or Legislature with regard to its reaching of decisions in individual cases. Therefore the Court must implement its own changes to its practices. An important impetus for such alterations can come from academic commentary scrutinising the Court’s decisions. Since the Supreme Court was established in 2004, legal commentator Andrew Beck has written a series of articles analysing its process. In particular, he has been critical of the Court’s decisions to grant or decline leave to appeal. First, he has criticised the failure to provide comprehensive reasons when leave is declined. Secondly, he has criticised the Court’s declining of leave in cases which would provide an opportunity to clarify and resolve complex legal issues. Thirdly, he has criticised decisions in which leave has been refused but, nevertheless, the Court has considered the correctness of the Court of Appeal’s decision. The Supreme Court hears appeals only once it has granted leave. It must not grant leave unless it is satisfied the appeal would be “necessary in the interests of justice”. The Supreme Court Act 2003 sets out several criteria for when it would be appropriate for the Court to grant leave. This paper is based on an examination of recent leave decisions of the Supreme Court. It will analyse the validity of Beck’s three criticisms, each of which will be examined in light of the statutory criteria guiding the Supreme Court as well as theoretical considerations such as New Zealand’s constitutional structure and the role of the Supreme Court. The paper will also assess whether the Supreme Court’s leave decisions do exhibit the criticised behaviours and will defend, as well as identify potential improvements to, the Court’s approach to leave decisions ...