Practitioners often ask whether filing both documents looks indecisive. It does not. It is the recognised protective course, and in some appeals it is compulsory.
When both are required
In Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555 the Supreme Court held that where an appeal involves questions of law, questions of mixed fact and law, and questions of fact, separate notices (Forms 7 and 8) are required to be filed.
So this is not merely permitted. Where your grounds straddle the categories in section 14(1) of the Supreme Court Act, both documents must be filed.
When it is merely sensible
1. The judgment may be interlocutory. Where it is arguable whether the decision is final or interlocutory, and no section 14(3)(b) exception plainly applies, file both.
2. A ground may be characterised as fact. Where a ground could be read either as mixed fact and law or as fact alone, the safer course is to cover it with a leave application.
3. The order may be as to costs only. Section 14(3)(c) requires leave for an order as to costs only that by law are left to the discretion of the National Court. Whether an order is “costs only” is not always obvious — see appealing costs.
An unnecessary leave application is surplusage. It falls away, and the worst outcome is a modest costs consequence.
A necessary leave application that was not filed is usually fatal. By the time a respondent raises it in an objection to competency, the 40 days will have expired, and section 17 permits an extension only on an application made within that period.
The risks are not symmetrical, and the practice reflects that.
Leave cannot be reserved to the hearing
Yakham v Merriam held that the third alternative then appearing in paragraph 2 of Form 8 — stating that leave to appeal is sought at the hearing of the appeal — was without legal basis and must be deleted. The Court overruled Opai Kunangel v The State [1985] PNGLR 144.
So a notice of appeal that says leave will be sought when the appeal is called on does not preserve anything. Leave must be applied for in Form 7, and in time.
Filing both
Form 7 — the application for leave. Under Order 7 Rule 4 it must show that an appeal lies with leave, state the nature of the case, the questions involved and the reason leave should be given, show an address for service, and be served forthwith.
Form 8 — the notice of appeal. Under Order 7 Rule 9 it must state that an appeal lies without leave or that leave has been granted, what part of the judgment is appealed from, briefly but specifically the grounds, and what judgment is sought in lieu.
Both must be filed within 40 days of the judgment — section 17. Tsang v Credit Corporation [1993] PGSC 18; [1993] PNGLR 112 confirms the leave application is subject to the same limit.
Do not simply duplicate every ground in both documents. Put the law and mixed grounds in the Form 8, and the fact grounds (or the grounds affected by the interlocutory question) in the Form 7.
Where the difficulty is the character of the judgment rather than of the grounds, the Form 7 will cover the same grounds as a protective measure — and should say so, so the Court understands why both are before it.
How the two proceed
The leave application goes to a single Judge under Order 7 Rule 3. The appeal is for the full Court.
If leave is granted, Order 7 Rule 6 requires a notice of appeal within 21 days of the grant. Where a Form 8 has already been filed, the sensible course is to seek directions — either that the existing notice stands, or that a supplementary or amended notice be filed to bring in the grounds for which leave was given.
Order 11 Rule 9 provides the mechanism: where the manner or form of a procedure is not prescribed, a person may apply to a Judge for directions.
The Form 8 appeal continues on the grounds that lie as of right. That is precisely the protection filing both provides — a refusal of leave does not extinguish the whole appeal.
The refusal itself may be taken to the full Court under section 10(2).
Expect the point to be taken
A respondent who objects to competency files Form 9 within 14 days after service of the notice of appeal or the application for leave. The objection is heard and determined before the substantive matter is set down, unless a Judge decides in a special case that the interests of justice require them to be set down together.
Under Rule 18 the burden of establishing incompetency is on the party making the objection. And under Rule 19, a respondent who gives no notice of objection but later has the matter dismissed as incompetent shall not receive costs unless the Court orders otherwise on special grounds.
Filing both documents is the most effective answer to a competency objection based on the absence of leave.
Sources
- Supreme Court Act (Chapter 37) — ss 10, 14, 17
- Supreme Court Rules 2012 — O 7 rr 3–9, 15–19; O 11 r 9; Forms 7, 8, 9
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
- 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.