An appeal begins with one document. Everything that follows — the appeal book, the submissions, the hearing — flows from it.
The founding rule
An appeal shall be instituted by a notice of appeal.
— Supreme Court Rules 2012, O 7 r 7
A letter to the Registrar does not start an appeal. Nor does an application for leave — that asks for permission. Nor does telling the judge below that you intend to appeal.
Where leave was required and granted, Order 7 Rule 6 gives 21 days from the grant to file the notice. The grant of leave is not the appeal.
The sequence
- Decide whether leave is required — on the judgment and on your grounds. See whether you need leave.
- Draft the notice to comply with Order 7 Rules 8, 9 and 10.
- File it in the registry within 40 days — Rule 9(g) and section 17 of the Act.
- Get the appointment to settle the appeal book from the proper officer on filing — Rule 33.
- Serve the notice without delay on every affected party and on the associate to the primary judge — Rule 13.
- Serve notice of the appointment on each person served with the appeal — Rule 34.
- Collect the papers and prepare the draft index — Rules 36 to 41.
Order 7 Rule 8
The notice of appeal and all subsequent proceedings shall be entitled “In the Supreme Court of Justice” and shall be entitled as between the party as appellant and the party as respondent.
The heading carries through the whole appeal. The parties are appellant and respondent, whatever they were below — a plaintiff who lost becomes the appellant.
What the notice must say
The notice of appeal shall —
(a) state that an appeal lies without leave or that leave has been granted and/or annex the appropriate order;
(b) state whether the whole or part only, and what part, of the judgment is appealed from;
(c) state briefly but specifically the grounds relied upon in support of the appeal;
(d) state what judgment the appellant seeks in lieu of that appealed from;
(e) be in accordance with Form 8;
(f) be signed by the appellant or his lawyer; and
(g) be filed in the registry.
The notice must say what judgment you want instead. An appeal that identifies errors but never states the relief sought is incomplete, and it makes the Court’s task under section 16 harder than it needs to be.
Be specific: that the judgment be set aside and judgment entered for the appellant; or that the matter be remitted; or that a particular sum be substituted.
Filing and what it achieves
Upon filing the notice of appeal, the appellant for the purposes of ss 17 and 29 of the Act shall be deemed to have given notice of appeal in the prescribed manner.
Not service. Rule 11 deems the statutory obligation satisfied upon filing, which is why an appellant short of time should file first and serve immediately afterwards.
Service is still mandatory — Rule 13 requires it without delay — but the 40-day requirement is met by filing.
The three steps that follow
1. Serve without delay under Rule 13 — on each party affected by the relief sought or interested in maintaining so much of the judgment as is appealed from, and upon the associate to the primary judge. Service on the associate triggers Rule 31, under which the Associate shall make out and certify a list of exhibits and the exhibits and other documents shall be delivered to the registry.
2. Serve notice of the appointment under Rule 34, on each person on whom the appeal is served.
3. Order the transcript. The 40 days under section 17 run from the judgment, not from when the transcript arrives, and Rule 36 requires the reasons and the certified notes of evidence to be obtained before the date appointed for settling the appeal book.
If the appeal is from a Judge sitting on appeal
Where the appeal is from a Judge of the National Court sitting on an appeal, a copy of the notice of appeal shall be left with the court or tribunal from the judgment of which the appeal was brought to the National Court.
Order 7 Rule 43(13)(i) requires the appeal book in that situation to include the notice of appeal, the reasons for judgment and the formal order in that earlier proceeding.
So a second-tier appeal — from a District Court, through the National Court, to the Supreme Court — needs the record of both stages. Collect it early.
Do not miss this on filing day
The appellant shall on filing the notice of appeal get from the proper officer in the registry an appointment to settle the appeal book.
The appellant shall serve notice of the appointment on each person on whom the appeal is served. The notice of appointment may be subscribed to the notice of appeal — which is the efficient course, since both are then served together.
This is a same-day step, and it is the one most often forgotten. See the appointment to settle.
Sources
- Supreme Court Rules 2012 — O 7 rr 6–13, 33–35, 43; Form 8
- Supreme Court Act (Chapter 37) — ss 16, 17, 29
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.