Order 7 Division 8 gives appellants a generous power of amendment, hedged by two separate deadlines that run from different events and expire at different times.
Order 7 Rules 25 and 26
A notice of appeal may, before the date of appointment to settle under Rule 42, be amended without leave by filing a supplementary notice.
A party who files a supplementary notice under Rule 25 shall file and serve it in accordance with Rule 13. The addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment in question, or such further period as has been allowed by a Judge within those 40 days.
They are not the same date
| What you are doing | Deadline | Runs from |
|---|---|---|
| Amending an existing ground, or any other part of the notice | The date of the appointment to settle | The appointment fixed under Rules 33 and 42 |
| Adding a new ground | 40 days | The date of the judgment |
Almost always the 40 days. The appointment to settle is obtained on filing under Rule 33 and is fixed for a date after that — typically well past the 40-day mark.
So in practice: new grounds must be in within 40 days of the judgment; everything else can be tidied up until the appointment.
Where the argument is
Amendment — taking a ground that is already there and expressing it properly. A ground alleging the Judge erred in construing a contractual clause, recast to identify the clause, the construction adopted, and the construction contended for, is the same ground with particulars.
Addition — introducing a complaint not previously made. A ground alleging a denial of natural justice, added to a notice that previously complained only about the construction of a clause, is a new ground.
Ask whether the respondent, reading the original notice, was on notice of the complaint. If the substance was there and only the expression was inadequate, it is amendment. If the respondent could not have known the point was in issue, it is addition.
Expect a respondent to characterise any significant change as an addition. The safer course, where you are still inside the 40 days, is to file the supplementary notice promptly and put the question beyond argument.
Tsang
In Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 the Supreme Court held that an application for leave to appeal an interlocutory judgment must be filed within the 40-day limit, and that a supplementary notice filed outside that limit was incompetent.
The case is cited on objections to competency as often as any other. It fixes both halves of the point: the period is jurisdictional, and a supplementary notice does not enlarge it.
Filing and serving
The supplementary notice must be filed and served in accordance with Rule 13 — that is, served without delay on each party affected by the relief sought or interested in maintaining the judgment, and on the associate to the primary judge.
Serving the associate matters if the amendment brings new material into issue: the exhibit and record provisions in Rules 30 to 32 are keyed to what was before the primary Judge.
It supplements rather than replaces. Entitle it in the appeal, identify the notice of appeal it amends by its filing date, and set out the amendments clearly — which ground is deleted, which is substituted, which paragraph is varied.
Where the amendments are extensive, it is common and sensible to set out the notice as amended in full, so that one document can be read as the operative grounds.
If you are past the appointment date
Rule 25 confers amendment without leave only before the appointment. After that, the route is an application to the Court or a Judge, invoking Order 11 Rule 9, under which a person who desires to take a step for which the manner or form of the procedure is not prescribed may apply to a Judge for directions.
That is a route to a direction, not a right. It cannot relieve against the section 17 time limit in the Act, and it should not be expected to authorise what Rule 26 forbids. Note also that the broad dispensing power in the Rules — the Court or a Judge may dispense with compliance with any of the requirements of the Rules — sits in Order 5, which governs reviews rather than appeals.
Amendment also means abandoning
A supplementary notice can delete grounds as well as refine them. That is the answer to an objection to competency directed at one or two weak grounds: remove them, and the objection loses its target.
Abandoning a ground before the objection is heard also improves the appellant’s position on the costs of that objection.
Does Rule 25 apply to a cross-appeal?
Division 8 is expressed in terms of “a notice of appeal”. A cross-appellant seeking to amend should not assume Rule 25 applies of its own force; the prudent course is to file the supplementary notice and, if the point is taken, apply to a Judge for directions under Order 11 Rule 9.
The 40-day bar in Rule 26 reflects section 17, which by Rule 27 governs the cross-appeal as well. See filing a cross-appeal.
Sources
- Supreme Court Rules 2012 — O 7 rr 13, 25–27, 30–33, 42; O 11 r 9
- Supreme Court Act (Chapter 37) — ss 14, 17
- Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112
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.