An appeal from the National Court lies to the Supreme Court under the Supreme Court Act (Chapter 37), with procedure prescribed by the Supreme Court Rules 2012.
Sections 4 and 14
An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.
Subject to this section, an appeal lies to the Supreme Court from the National Court —
(a) on a question of law; or
(b) on a question of mixed fact and law; or
(c) with the leave of the Supreme Court, on a question of fact.
Law, or mixed fact and law — as of right. Fact alone — only with leave.
So the grounds of appeal should be framed to identify the question of law or of mixed fact and law. A ground that says no more than that the Judge should have believed a different witness is a question of fact, and needs leave. See when leave is required.
Section 4(2) applies the same three categories to an appeal from a Judge of the National Court sitting on appeal — that is, from a decision on an appeal from the District Court.
Section 17
A person desiring to appeal, or to obtain leave to appeal, shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.
Section 17 allows a further period, but only on application made to him within that period of 40 days. An application on day 41 is outside the terms of the section.
The period runs from the date of the judgment — not from entry of the order, or from receipt of written reasons. Diarise it on the day judgment is delivered.
Note also section 14(3)(a): no appeal lies to the Supreme Court without leave … from an order allowing an extension of time for appealing or applying for leave to appeal.
Section 6
(1) 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.
(2) For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
The record is the case. The rehearing is on the evidence given below, so the appeal book and transcript are central. Fresh evidence requires the Court to be satisfied that the justice of the case warrants it.
But findings of fact are not sealed off. Paragraph (b) permits the Supreme Court to draw inferences of fact from the evidence already given — which is distinct from re-hearing witnesses.
Section 19
Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings.
So the judgment remains enforceable while the appeal is on foot. A stay must be applied for, and it should be sought promptly.
Where an appeal is pending, a single Judge may make — (a) a direction not involving the decision on the appeal; (b) an interim order to prevent prejudice to the claims of the parties; (c) an order for security for costs in civil proceedings; (d) an order dismissing an appeal … for default in furnishing security; or (e) an order admitting an appellant to bail.
Such a direction or order shall be deemed to be a direction or order of the Supreme Court, and may be discharged or varied by the Supreme Court.
Section 18
(1) The Supreme Court or a Judge may, in special circumstances, order that just security be given for the costs of an appeal or an application for leave to appeal and, if the application is granted, for the prosecution of the appeal.
(2) If any security ordered … is not given in accordance with the order, the appeal, or the application for leave to appeal, as the case may be, shall be deemed to have been abandoned.
Note the word deemed: no further order is needed. Compliance with a security order is therefore not optional.
What to do, in order
- Diarise 40 days from the date of judgment, and work backwards from it.
- Decide whether leave is needed — questions of fact, interlocutory judgments, costs-only orders and extensions of time all require it under section 14(3).
- Frame the grounds as questions of law or of mixed fact and law wherever the case permits.
- Apply for a stay if enforcement would cause prejudice. Section 19 means the judgment stands until one is granted.
- Order the transcript immediately. The rehearing is on the evidence given below, and transcript delays are the commonest cause of drift.
- Follow the Supreme Court Rules 2012 for the form of the notice, the appeal book and the timetable. Section 17 requires notice in the manner prescribed by the Rules of Court.
Sections 20 to 32 contain additional provisions relating to appeals in criminal cases — including criminal appeals (s 22), appeal by Public Prosecutor against sentence (s 24), new trial (s 28), and time for appealing under Division 3 (s 29). See appealing a conviction or sentence.
Sources
- Supreme Court Act (Chapter 37) — ss 4–6, 14, 17–19, Div 3
- Supreme Court Rules 2012
- Constitution — ss 155, 166
PacLII carries the Supreme Court Act (Chapter 37) and the Supreme Court Rules 2012 as PDFs at the pages linked above.
Before relying on anything here, read the current text of the National Court Rules 1983 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.