Creating a system of appeal, review, and complaint
This is a single section from Chapter 28. Read the full chapter here.
What type of appeal should be granted?
Legislation should identify the type of appeal procedure to be adopted where existing appeal procedures cannot be relied on.
If new legislation does not rely on an existing appeal procedure, the appeal model that is most appropriate to the context of the legislation should be identified. The most commonly used models are “re- hearings” or “hearings de novo”.
- Re-hearing: The appeal is heard on the record of evidence considered by the previous decision maker, but the appellate body has the discretion to re-hear some or all of the evidence and to admit new evidence. Re-hearings are generally appropriate where specific legal or factual errors are the focus.
- Hearing de novo: In a hearing de novo (from the beginning again), the appellate body may approach the case afresh and the appellant receives an entirely new hearing. Hearings de novo will generally only be appropriate when there is a reasonable possibility that the first instance decision maker may have incorrectly ascertained the facts.
Re-hearings will generally be cheaper and faster than hearings de novo, but will still involve significant time and cost.
Two other appeal models are appeals by way of “case stated” and pure appeals (or “stricto sensu”). These two models can be restrictive in terms of the evidence that the court can consider and what outcomes can be achieved and it is now very rare to provide for them in statutes. Legal advisers and the Ministry of Justice should be consulted if an appeal model other than either a re-hearing or hearing de novo is being considered.