An appeal is a rehearing on the record, not a fresh trial. Everything in Order 18 Division 1A of the National Court Rules 1983 follows from that.
Rule 6(1) and (2)
(1) The Appellant or his/her lawyer is responsible for compiling the Appeal Book.
(2) The Appellant or his/her lawyer is responsible for ensuring that the Court depositions are provided by the Clerk of Court or appropriate officer of the tribunal or authority which made the decision and received by the National Court.
Not the Registry’s. Sub-rule (2) puts the burden squarely on the appellant to ensure the lower court’s record reaches the National Court.
Start immediately after filing. Availability of the depositions and the reasons for decision is item 6 on the directions hearing agenda, which takes place within 14 days.
Rule 6(5)
- Title page.
- Index.
- Notice of Appeal.
- Any Amended Notice of Appeal.
- A summary of the argument of the Appellant.
- A summary of the response by the Respondent.
- Magistrate’s Reasons — where delivered when the Decision is handed down by the Magistrate.
- Typed copy of the Transcript — signed by a Clerk of Court certifying that the Transcript is correct.
- Any other documents filed in the District Court including Complaint, Summons, Notice of Motion, Affidavits, Court orders, etc.
- Any other documents filed on the National Court file, including Orders to Appeal out of time, that are deemed relevant on Appeal.
And all documents must be numbered and where there is reference to the transcript, the lines on the transcript must be numbered.
Rule 6(5)(c): if the Magistrate fails to provide Reasons for Decision when the decision is handed down … then no such Reasons can be included in the Appeal Book.
Where the Magistrate gave verbal Reasons not recorded in the transcript, or no reasons at all, then a Report from the Magistrate requested by the Registrar of the National Court and supplied by the Magistrate under s 225 of the District Court Act must be included instead.
So reasons produced after the event cannot be slipped into the book. If they are missing, request the section 225 report through the Registrar.
Rule 6(3) and (4)
Where a handwritten transcript is provided by a Magistrate, the lawyer must ensure that they are typed by the lawyer and sent back to the Clerk with the hand-written original to certify:
“I, …, Clerk of the Court hereby certify that I have examined the attached transcript with the original and certify that it is correct.”
This Certificate entitled with the name and number of the National Court appeal and place of hearing of appeal shall be prepared for signature of the Clerk of Court by the lawyer for the appellant.
Sub-rule (4) applies the same procedure where the handwritten transcript comes from a person other than a Magistrate, certified by the appropriate officer of Authority or Tribunal.
That is what the Rule says, twice. It also means the lawyer prepares the certificate for the Clerk’s signature. Build the time for it into the timetable; a certified transcript cannot be produced overnight.
Rule 6(5)(d) to (g)
(d) The provisions of Order 7 Rule 43 of the Supreme Court Rules shall be adopted and applied as far as appropriate and applicable, subject to the above modifications.
(e) Where both parties are represented, both parties must certify the correctness of the Appeal Book; and if there is a dispute as to the correctness of the index or contents, the Registrar or a Deputy Registrar may on seven (7) days notice … settle the Appeal Book — the Notice of Appointment to be prepared for signing by the Appellant’s lawyer.
(f) Where both parties are not represented, subject to their meeting the cost, the Registrar may give such assistance to the parties as is necessary to compile the Appeal Book.
(g) An Appeal Book must be delivered to the Court and served on the other party seven (7) days before the date fixed for the Pre-hearing Conference.
Rules 7 to 9
The Judge may (a) confirm parties’ compliance with directions issued at the Directions Hearing; (b) confirm the correctness of the Appeal Book; (c) consider summary determination of appeals which fail to comply; (d) length of hearing time; (e) filing of extract of submissions; and (f) fix a date for the hearing of the substantive appeal.
The Judge may adjourn the Pre-hearing Conference as may deem necessary for the parties to fully comply. On fixing a hearing date, the Registrar shall issue to all parties a Notice of Hearing in the form prescribed by the District Court Act.
Rule 10
(1) The hearing shall proceed on the date and time fixed in the Notice of Hearing of Appeal.
(2) If an appeal is not heard, it must not be adjourned generally. It must be fixed or adjourned to a specific date and time.
(3) Any fresh evidence introduced by a party shall be by leave of Court only and by affidavit evidence only. Cross-examination on the affidavit shall not be allowed except with leave of the Court.
(4) The Judge may summarily hear and determine any appeal which fails to comply with the procedure prescribed by the relevant statute or in which the parties fail to comply with directions.
(5) After decision, the Registrar shall forward a copy of the Order together with a copy of the written judgment to the Clerk of the Court or tribunal from which the decision is appealed; where there is no written judgment, a transcribed copy of the oral judgment.
Three restrictions in one sub-rule: by leave only, by affidavit only, and no cross-examination except with leave.
Leave must be sought early — item 10 on the directions hearing agenda is the filing of fresh affidavit evidence, if any, by leave of the Court. An application made at the hearing is late. See preparing affidavits.
Sources
- National Court Rules 1983 — O 18 Div 1A rr 5–13, Schs A–C
- Supreme Court Rules 2012 — O 7 r 43
The District Courts Act (Chapter 40), including section 225, is not available on PacLII.
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.