Where an appeal lies only with leave, the leave application is the first step and it has its own requirements. Getting them wrong wastes the only 40 days you have.
What the application must contain
An application for leave to appeal shall be made by filing a notice in writing and shall —
(a) be entitled “In the Supreme Court of Justice” and also entitled as between the party as appellant and the party as respondent; and
(b) show that an appeal lies with leave; and
(c) state the nature of the case, the questions involved and the reason why leave should be given; and
(d) show an address for service of the party giving the notice; and
(e) be in accordance with Form 7; and
(f) be served forthwith on all parties in the proceedings the subject of the proposed appeal, or the lawyers for those parties.
— Supreme Court Rules 2012, O 7 r 4
The application must show that an appeal lies with leave — that is, identify the statutory basis on which leave is required and available. That means naming the provision: section 14(1)(c) for a question of fact, section 14(3)(b) for an interlocutory judgment, section 14(3)(c) for costs only, or section 22(c) or (d) in a criminal matter.
An application that simply asserts that leave is sought, without demonstrating that the Act permits an appeal with leave from this judgment on these grounds, has not complied with Rule 4(b).
Paragraph (c) in practice
The nature of the case. Briefly — what the proceeding was about, what the National Court decided, and when.
The questions involved. The points the proposed appeal would raise, stated as questions. This is where the Court sees whether there is something worth arguing.
The reason why leave should be given. Not a repetition of the grounds, but why this judgment merits the Court’s attention — that the point is arguable, that it matters beyond the parties, or that the consequences of the decision are substantial and there is no other remedy.
Leave is a threshold, not the appeal. The application is not the place to argue the merits in full — it is the place to show that the merits are worth hearing. See what leave requires.
The 40 days applies to the application
Section 17 of the Act requires a person who desires to appeal or to obtain leave to appeal to give notice of appeal, or notice of the application for leave, within 40 days after the date of the judgment — or within such further period as is allowed by a Judge on application made within that period of 40 days.
In Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 the Supreme Court held that an application for leave to appeal against an interlocutory judgment must be filed within the 40-day limit, and that a supplementary notice filed outside it was incompetent.
A single Judge decides
Where an appeal from a judgment lies to the Court only with leave, an application for leave to appeal may be heard and determined by a Judge.
That matches section 10(1)(a) of the Act, under which the power to give leave may be exercised by a Judge in the same manner as it may be exercised by the Court.
Section 10(2): where a Judge refuses an application for leave, the appellant may apply to the Supreme Court to have the matter determined by that Court. That is a fresh determination, not an appeal against the Judge. See refusal of leave.
The 21-day trap
When leave to appeal has been granted, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted, or within such further time as the Court or a Judge may allow on application filed and served within that 21 days.
Winning leave does not institute the appeal. Order 7 Rule 7 is explicit: an appeal shall be instituted by a notice of appeal. A party who obtains leave and then waits will find the appeal out of time.
Note too that the extension provision mirrors section 17: the application to extend must itself be filed and served within the 21 days.
Order 7 Rule 9(a): the notice of appeal shall state that an appeal lies without leave or that leave has been granted, and annex the appropriate order to the notice.
So keep the sealed order granting leave — it becomes an annexure. See what the notice must contain.
Serving the application
Rule 4(f) requires service forthwith on all parties in the proceedings the subject of the proposed appeal, or their lawyers in those proceedings. That is a stronger word than “without delay” and does not permit holding the application back.
Order 7 Rule 5 applies Rule 11 to a leave application with the necessary modifications, so filing operates as the giving of notice for the purposes of sections 17 and 29 of the Act.
Service may be effected under Order 11 Rule 7 — personally, or by delivering a signed and sealed copy to the party’s address for service, or to the address for service in the National Court proceedings from which the present proceedings arose.
A respondent may file an objection to competency in Form 9 within 14 days after service of the application for leave — Order 7 Rule 15. The burden of establishing incompetency is on the objector, but a defective Form 7 is an inviting target.
Sources
- Supreme Court Rules 2012 — O 7 rr 3–6, 9, 15; O 11 r 7; Form 7
- Supreme Court Act (Chapter 37) — ss 10, 14, 17, 22, 29
- 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.