An appeal is a rehearing on the record, not a retrial. Fresh evidence is therefore exceptional — but the Rules provide for it, and section 6 of the Act expressly contemplates it.
Section 6
An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court — (a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and (b) to draw inferences of fact.
The starting point is that the Supreme Court decides on what was before the primary Judge. That is why the appeal book exists, and why Order 7 Divisions 11 to 16 devote so many rules to assembling it accurately.
Additional evidence is a departure from that, and it is treated as one.
Order 7 Division 20
Rule 52 — this Division applies to any application to the court to receive evidence in a proceeding on an appeal additional to the evidence in the National Court.
Rule 53 — this Division applies unless the court otherwise directs.
Rule 54 — application shall be made at the hearing of the appeal.
Rule 55 — the application shall be (a) by notice stating the nature of the evidence sought to be called; and (b) supported by an affidavit stating the grounds of the application.
Rule 56 — any evidence necessary to establish the grounds of the application, and the evidence which the applicant wants the court to receive, shall be by affidavit.
Two separate bodies of affidavit material are required: the evidence going to why the Court should receive the new material, and the new material itself.
Both must be by affidavit. You cannot ask for leave and then call a witness; the Court receives affidavits.
Rules 57 to 59
Rule 57 — the applicant shall file the Rule 55 notice and any affidavit not later than 21 days before the hearing of the appeal.
Rule 58 — the evidence of any other party to the appeal shall, unless the court or a Judge otherwise orders, be given by affidavit filed not later than 14 days before the hearing.
Rule 59 — a party shall, not later than the time limited for filing an affidavit, (a) lodge as many copies as the Registrar may direct; and (b) serve a copy on each other party.
Rule 54 says the application is made at the hearing; Rule 57 says the notice and affidavits are filed at least 21 days before it. There is no inconsistency: the papers go in three weeks ahead, and the application is argued when the appeal is called.
What this rules out is producing new material at the hearing itself. An appellant who wants the Court to look at a document must have filed it, on affidavit, three weeks earlier.
Order 13 Rule 8A
All interlocutory applications and processes, including applications to adduce fresh evidence, to dismiss an appeal for abuse of process or for want of prosecution or for failure to comply with directions, and objections to competency, shall be heard at a separate and distinct hearing and determined before the substantive matter to which they relate is set down for hearing — unless a Judge determines in a particular case, in consultation with the parties, that another procedure is in the interests of justice.
So although Rule 54 contemplates the application being made at the hearing, Order 13 Rule 8A points to it being dealt with beforehand. Raise it at the Directions Hearing so that the course to be taken is settled.
What the affidavit must show
Why the evidence was not available below. Evidence that could have been obtained with reasonable diligence before trial is not fresh evidence, and an appeal is not an opportunity to run a better case.
What it would establish. Precisely, by reference to the ground of appeal it goes to.
Whether it would have affected the result. Evidence that would not have changed the outcome is not worth receiving.
Whether it is credible. The Court will not receive material that is inherently improbable or contradicted by the record.
These are the ordinary considerations on an application of this kind, and the affidavit should address each of them rather than simply exhibiting the document.
A stricter position
On an application for review, Application by Herman Joseph Leahy [2006] PGSC 21; SC855 requires, for each argument advanced, that it was raised in the National Court.
And on an appeal, a point of law not argued below may be raised only on the conditions in Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812 — it must be set out in the notice of appeal, must not concern a question of fact only, and the leave of the court must be obtained.
New evidence and new arguments are separate applications, and neither carries the other.
Sources
- Supreme Court Rules 2012 — O 7 rr 52–59; O 13 r 8A
- Supreme Court Act (Chapter 37) — s 6
- Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812
- Application by Herman Joseph Leahy [2006] PGSC 21; SC855
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.