“Appeal allowed, matter remitted” is a common outcome, and a frustrating one for a party who expected the Supreme Court to finish the case. It reflects the division of labour between a trial court that hears witnesses and an appellate court that reviews the record.
The power
On the hearing of an appeal, the Supreme Court shall inquire into the matter and may (a) adjourn the hearing from time to time; or (b) affirm, reverse or modify the judgement; or (c) give such judgement as ought to have been given in the first instance; or (d) remit the case in whole or in part for further hearing; or (e) order a new trial.
Section 6 makes an appeal a rehearing on the evidence below, and section 8 gives supplemental powers to receive further evidence and draw inferences. The Court therefore prefers, where it can, to give the judgment that ought to have been given under paragraph (c), because that ends the litigation. It remits under paragraph (d) when it cannot.
When the Court remits
| Situation | Order |
|---|---|
| Trial Judge decided liability on a wrong legal test and made no findings on the facts the right test requires | Remit for further hearing on those facts |
| Liability upheld or established but damages were never assessed, or were assessed on a wrong basis | Remit for assessment of damages, often to the same Judge |
| Judge exercised a discretion wrongly, for example on a stay, an adjournment or costs, and the discretion must be exercised afresh on the facts | Remit for the discretion to be re-exercised, or the Court exercises it itself if the material is complete |
| Proceedings dismissed summarily, for want of prosecution or on a preliminary point, without a hearing on the merits | Reinstate and remit for trial |
| Trial miscarried through a denial of natural justice, a wrongly admitted or excluded body of evidence, or an apprehension of bias | New trial under s 16(e), before a different Judge |
| Criminal conviction quashed but a properly conducted trial could convict | New trial under s 28 |
| Judicial review allowed; decision-maker’s decision quashed | Matter remitted to the decision-maker, not the Court, to decide again according to law |
Remittal, new trial and judgment compared
A new trial starts again: the evidence is heard afresh and the earlier findings fall away, subject to any point of law the Supreme Court decided. A remittal for further hearing keeps what was properly decided and sends back only the part that must be redone, so the existing evidence stands and the National Court hears more only if needed. Judgment under section 16(c) ends the case in the Supreme Court. The order will say which it is, and the reasons explain what is left open. Section 28 governs new trials in criminal appeals, and section 28(2) allows orders for custody or bail pending the retrial. See whether the Supreme Court can order a new trial and what orders the Court can make on appeal.
What happens in the National Court
The Registrar sends the sealed Supreme Court order to the National Court, and the successful party applies to have the matter relisted, usually by a letter to the Registrar or a notice of motion referring to the order. The National Court is bound by the Supreme Court’s judgment on every point it decided, under Constitution section 155(2)(a) and Schedule 2.9, and its task is to do what the order directs and nothing more. A party cannot use the remitted hearing to reopen issues the Supreme Court has settled, or to amend pleadings without leave. Where the order remits “for rehearing before another Judge” the Chief Justice or the listings Judge assigns one; where it is silent, the same Judge usually continues, particularly for an assessment of damages where the Judge has heard the evidence. Section 2 of the Act does not prevent the original Judge from rehearing, since it disqualifies Judges from sitting in the Supreme Court on their own decisions, not from resuming a matter in the National Court.
Costs and time
The Supreme Court usually orders the costs of the appeal in favour of the successful appellant and reserves or leaves to the National Court the costs of the first hearing and the rehearing, since who ultimately wins is not yet known. Time for any further appeal runs from the National Court’s new judgment, and that judgment can be appealed in the ordinary way; the Supreme Court’s earlier decision cannot. See who pays the costs of an appeal and enforcing a Supreme Court judgment.
Sources
- Supreme Court Act (Chapter 37) — ss 2, 6, 8, 16, 28
- Constitution — s 155(2); Schedule 2.9
- Supreme Court Rules 2012 — O 13 r 16(2)
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.