The mechanics mirror a notice of appeal, with two differences: the cross-appeal is filed inside an existing proceeding, and the respondent must also enter an appearance.
Order 7 Rule 28
(a) be entitled as between the party as cross appellant and the party as cross respondent;
(b) state that the cross-appeal lies without leave or that leave has been granted and annex the appropriate order;
(c) state what part of the judgment the respondent cross-appeals from or contends should be varied;
(d) state briefly but specifically the grounds of the cross-appeal;
(e) state what relief is sought in lieu of the order cross-appealed from, or the variation sought in that order;
(f) be in accordance with Form 10;
(g) a copy shall be served immediately on the appellant and any other person affected by the relief claimed;
(h) Form 10 may, if convenient, be combined with Form 16.
Paragraph (a)
The proceeding keeps the appeal number, but the cross-appeal is entitled between the cross appellant (the respondent to the appeal) and the cross respondent (the appellant).
Where more than one respondent cross-appeals, or where the cross-appeal is directed at a co-respondent rather than the appellant, name the parties in the roles the cross-appeal gives them.
Paragraphs (c), (d) and (e)
“Briefly but specifically” in Rule 28(d) is the same phrase as Rule 9(c). Order 7 Rule 10, which forbids bare allegations that a judgment is against the weight of the evidence or wrong in law, is expressed to apply to the notice of appeal — but a cross-appeal drafted to a lower standard invites the same objection and gives the Court no less trouble.
Draft each ground so it names the finding attacked, the reason it is wrong, and, through paragraph (e), what should replace it. See drafting grounds of appeal.
The relief sought in lieu of the order cross-appealed from — where you want that part of the judgment set aside and replaced.
Or the variation sought in that order — where the order stands but a figure, a period or a term should change.
Say which. Section 16 of the Act lets the Court affirm, reverse or modify the judgment, give such judgment as ought to have been given, remit the case, or order a new trial.
Rule 27 requires a Form 16 as well
A person served with a document by which proceedings are instituted, and who desires to be heard at any stage of the proceedings, shall, as soon as is practicable or within the time specified, file an appearance in accordance with Form 16 and serve a copy on each of the other parties.
Rule 27 makes this express: the cross-appeal is filed in addition to complying with Order 11 rule 2.
Form 10 may, if convenient, be combined with Form 16. One document, filed once, served once. Where a respondent has decided to cross-appeal before entering an appearance, that is the sensible course.
Either way the document must show an address for service in Form 17 — Order 11 Rules 3 and 4, including the requirement of a place within 15 kilometres of the Registry.
Paragraph (g)
Rule 28(g) requires service immediately on the appellant and any other person affected by the relief claimed. That is stronger language than the without delay of Rule 13.
Note the second limb. A cross-appeal seeking to shift liability to a co-defendant affects that co-defendant, who must be served even though they are not the appellant.
Rule 28 does not repeat the Rule 13 requirement of service on the associate to the primary judge, and Rule 31 is triggered by the filing of a notice of appeal. Where the cross-appeal relies on exhibits the appeal does not, notify the associate anyway — the exhibit retention period in Rule 30 is only 40 days after the judgment is pronounced.
Getting your material in
Under Order 7 Rule 40 it is the appellant who prepares the draft index. Material relevant only to the cross-appeal will not appear unless the cross-appellant asks for it.
Rule 29 sets out the mechanism for a respondent relying on a contention — give notice of the relevant record to the appellant for inclusion in the draft index, and request the Registrar to include it in the appeal book. A cross-appellant should follow the same course, and should attend the appointment to settle.
Before you file
- Are you within 40 days of the judgment — not 40 days of service of the notice of appeal?
- Does the cross-appeal need leave under section 14, and if so has it been obtained and annexed?
- Is the notice entitled between cross appellant and cross respondent?
- Does it identify what part of the judgment is attacked?
- Are the grounds specific?
- Does it state the relief or variation sought?
- Have you filed a Form 16 appearance, or combined it under Rule 28(h)?
One practical point
Where the appeal fails and the cross-appeal succeeds, the costs order will usually reflect both outcomes rather than treating the respondent as the successful party overall. Order 12 gives the Court a general discretion over the costs of an appeal.
That is a reason not to cross-appeal on a point of no real value simply because the other side has appealed.
Sources
- Supreme Court Rules 2012 — O 7 rr 9, 10, 13, 27–31, 40; O 11 rr 2–4; O 12; Forms 10, 16, 17
- Supreme Court Act (Chapter 37) — ss 14, 16, 17
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.