Can application for leave to appeal be determined by the judge whose decision is being appealed?

Question

Appeals to the next level court may first require leave to appeal.

Say in New Zealand, where a party wants to appeal a decision of the High Court to the Court of Appeal, they may need to apply to the Court of Appeal for leave to appeal. Whether or not leave is required depends on the statute that governs the matter.

Moreover, in some circumstances, leave to appeal needs to be applied for to the same level court where the decision to be appealed was made. Section 56(3) of the Senior Courts Act 2016 goes:

No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

(emphasis added)

So, say Bob is suing Rob in the High Court. Rob applied for a direction (for example, he wants to join Alice to the case). Bob objected. Judge Judy made an interlocutory order where the direction that Rob sought is granted. Bob is unhappy and wants to appeal to the Court of Appeal. But to do this, Bob first needs to obtain leave from the High Court. If this is declined, then and only then Bob can apply for leave appeal to the Court of Appeal directly (upon the grant of which he can finally file the appeal itself).

Now this may create an interesting collision. What if the application for leave to appeal filed in the High Court gets in the hands of the same judge that made the decision that the appeal is against?

As per answers to this question, judges will not enjoy if their decisions get overturned. Therefore, they may be personally interested in rejecting the application for leave to appeal, especially if the decision was made publicly available.

The High Court has published its Recusal Guidelines here. One possible ground for recusal in this situation goes:

5. Recusal where opinions earlier expressed

5.1 A judge should consider recusing him or herself if the case concerns a matter upon which the judge has made public statements of firm opinion on the issue before the court.

5.2 An expression of opinion in an earlier case or in an earlier stage of a proceeding is not of itself a ground for recusal.

So, given that judge Judy's decision has been published, does that hit 5.1 above in a way that 5.2 does not overweight it? Should judge Judy now consider recusing herself from hearing the application for leave to appeal?

Can judge Judy not hear the application for leave to appeal for any other reason?

This question is not tightly attached to New Zealand — answers re other comparable jurisdictions are welcome.

Answer 1

In England and Wales, where you have to seek permission from the lower court (which is the normal situation as you describe) it would almost always be the judge who made the decision who decides whether or not to give permission. In many cases judges do give permission to appeal from their own decisions.

This is particularly likely where the decision was a difficult one and/or the law was unclear.

I have been successful with the argument "another judge might come to a different decision" (literally just that). The judge agreed and gave me permission to appeal. You would usually have to construct a slightly better argument.

Answer 2

Yes

It's not uncommon. In fact I am aware of at least one case where the trial judge referred it to appeal before he made his decision on the basis that whichever way he decided the law was so unsettled that grounds for appeal would occur. In that case the court of appeal called up the trial judge to sit on the 3 judge appeal a) because he knew the case and b) because you don't get to not make a decision because it's hard sonny-jim.