More Supreme Court appeals fail on the drafting of the grounds than on the substance of the argument. The Rules are unusually direct about what is not acceptable.
What the Rules require
The notice of appeal shall state briefly but specifically the grounds relied upon in support of the appeal.
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, and 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.
It targets precisely the two formulations practitioners reach for: against the weight of the evidence, and wrong in law. Neither, standing alone, is a ground.
Three elements
1. What is attacked. The specific finding, ruling, direction or exercise of discretion — identified so there is no doubt which part of the judgment is in issue.
2. Why it is wrong. The legal proposition said to have been misapplied, the evidence said not to support the finding, or the consideration said to have been overlooked.
3. What follows. Not always stated in the ground itself, but the notice must under Rule 9(d) say what judgment the appellant seeks in lieu.
Compliant and non-compliant
| Not sufficient | Sufficient |
|---|---|
| The learned trial judge erred in law and in fact. | The learned trial judge erred in law in holding that the notice under section 5 of the Claims By and Against the State Act 1996 was not required, when section 2(2) applies the Act to applications under Constitution sections 57 and 58. |
| The decision is against the weight of the evidence. | There was no evidence capable of supporting the finding that the appellant was present at the meeting of 14 March, the only evidence on that issue being the second respondent’s affidavit, which did not depose to the appellant’s presence. |
| The damages awarded were excessive. | The learned trial judge erred in applying a discount rate of 5 per cent to future economic loss, when Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 fixes the rate at 3 per cent. |
| The learned trial judge wrongly exercised his discretion. | The learned trial judge, in dismissing the proceeding for want of prosecution, failed to take into account the explanation for the delay set out in the appellant’s affidavit of 3 June, and so acted on a wrong principle within The State and Davis v Barker [1977] PNGLR 386. |
Each compliant ground names something specific — a provision, a document, a date, a rate, an authority. That is what “particularity” means, and it is also what makes a ground arguable.
A useful distinction
Saying the judge weighed the evidence wrongly is a complaint about fact, and needs leave under section 14(1)(c) of the Act.
Saying there was no evidence capable of supporting the finding is a proposition of law, and lies as of right.
The distinction is legitimate and worth using — but only where it is genuine. Rule 10 requires the specific reasons, and a disguised weight argument will not survive being spelled out.
Attacking a discretion
In The State and Davis v Barker [1977] PNGLR 386 the Supreme Court held that to substitute its own discretion, the appellate court must be satisfied that the judge below exercised the discretion upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or did not take into account some matter for consideration — and that the decision was clearly wrong or that otherwise injustice might be done. Following House v The King (1936) 55 CLR 499 and Evans v Bartlam [1937] AC 473.
A ground attacking a discretion should therefore say which of those categories is relied on. A ground that merely asserts the discretion miscarried gives the Court nothing.
How many grounds
A notice with twenty grounds, most of them variations on one complaint, signals that the appellant has not identified what actually went wrong. It also invites an objection to competency directed at the weakest of them.
Each ground should be capable of standing alone and, if made out, of affecting the outcome. A ground that changes nothing even if correct should not be there.
Order 7 Rule 25 allows a notice to be amended without leave by filing a supplementary notice before the date of the appointment to settle. But Rule 26 provides that the addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment, or such further period as has been allowed by a Judge within those 40 days.
So the grounds are effectively settled within the same 40 days as the appeal. Draft them properly the first time. See adding a ground later.
Sources
- Supreme Court Rules 2012 — O 7 rr 9, 10, 25, 26
- Supreme Court Act (Chapter 37) — ss 14, 16, 17
- The State and Davis v Barker [1977] PNGLR 386
- Pinzger v Bougainville Copper Ltd [1985] PGSC 17; [1985] PNGLR 160
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.