Most appeals raise more than one kind of ground. Because leave depends on the kind of question, an appeal with mixed grounds needs more than one document.
Yakham v Merriam
Where the grounds of appeal involve questions of law and/or of mixed fact and law, the appeal lies as of right, and a notice of appeal is required to be filed in Form 8 in accordance with section 17 of the Supreme Court Act and Order 7 Rules 6 to 9.
Where the grounds involve only questions of fact, an application for leave to appeal is required to be filed in Form 7 under section 17 and Order 7 Rules 1 and 2.
It follows that where the grounds involve questions of law, questions of mixed fact and law, and questions of fact, separate notices (Forms 7 and 8) are required to be filed.
The Court also 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 — is without legal basis and must be deleted. It referred to Tsang v Credit Corporation [1993] PNGLR 112 and overruled Opai Kunangel v The State [1985] PNGLR 144.
Because of the divergent opinions in the earlier authorities — Opai Kunangel and Nerau v Solomon Taiyo Ltd [1993] PNGLR 395 — the Court declined, as a matter of fairness, to uphold the objections taken in the case before it.
That indulgence was a one-off, granted because the law had been unclear. It cannot be relied on now: the position has been settled since 1997.
The reasoning
Section 14(1) of the Act creates three categories: (a) a question of law — appeal as of right; (b) a question of mixed fact and law — as of right; (c) a question of fact — with leave.
The two routes are procedurally distinct. An appeal as of right is instituted by a notice of appeal (Order 7 Rule 7). A fact ground requires the Court’s permission first, sought by an application. One document cannot do both jobs, because they ask the Court for different things.
If you file only a Form 8 and one of your grounds is fact-only, that ground is liable to be struck out as incompetent — and by the time the point is taken, the 40 days will have gone, so it cannot be cured.
If you file only a Form 7 when your grounds are law or mixed, you have not instituted an appeal at all.
Sorting your grounds first
| Ground | Category | Document |
|---|---|---|
| Wrong legal test applied | Law | Form 8 |
| Statute or contract misconstrued | Law | Form 8 |
| No evidence capable of supporting a finding | Law | Form 8 |
| Correct test applied, conclusion not open on the facts found | Mixed | Form 8 |
| Inadequate reasons | Law | Form 8 |
| Judge should have believed a different witness | Fact | Form 7 |
| Judge should have drawn a different inference | Fact | Form 7 |
| Damages assessed at the wrong figure, no wrong principle | Fact | Form 7 |
Section 14(1)(b) is generous, and it is worth using. A ground that engages a legal standard and its application to the facts is a question of mixed fact and law, and needs no leave.
But do not force a genuine fact ground into that box. Order 7 Rule 10 requires the notice to specify with particularity the grounds relied on, and it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence. A disguised fact ground will be exposed by that requirement.
The other reason you may need Form 7
Even where every ground is a pure question of law, leave is required if the judgment is interlocutory and no exception in section 14(3)(b) applies — liberty of the subject, custody of infants, granting or refusing an injunction, or appointing a receiver.
So there are two independent triggers. Ask both questions: what kind of judgment, and what kind of grounds. See whether you need leave.
Order 7 Rule 10 applies to both
Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence, or that it is wrong in law. The notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence, and the specific reasons why it is alleged to be wrong in law.
— Supreme Court Rules 2012, O 7 r 10
Rule 10 targets exactly the formulations practitioners reach for when trying to keep a fact ground inside the “as of right” category. “The learned trial judge erred in fact and in law” is not a ground; it is a heading.
Forcing a genuine fact ground into the Form 8 by describing it as an error of law does not survive Rule 10, because the rule demands the specific reasons why the judgment is said to be wrong in law — and those reasons will reveal that the complaint is about the evidence.
The disciplined course is the honest one: put the fact grounds in a Form 7 and seek leave for them.
The safe course
- Classify every ground before drafting. Go through them one at a time against section 14(1).
- If any ground is fact-only, file a Form 7 as well, listing that ground, and keep the Form 8 for the rest.
- File both within the 40 days. Tsang v Credit Corporation [1993] PGSC 18; [1993] PNGLR 112 confirms the leave application is subject to the same limit.
- Never write that leave will be sought at the hearing. Yakham struck that alternative out of the form.
Filing an unnecessary Form 7 costs little. Omitting a necessary one is usually fatal.
Sources
- Supreme Court Act (Chapter 37) — ss 14, 17
- Supreme Court Rules 2012 — O 7 rr 1–10; Forms 7, 8
- 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.