Order 7 Rule 43 is a specification. It reads like a printer’s brief because that is what it is, and every requirement in it exists to make a large record navigable in argument.
Rule 43(1) and (2)
The appeal book for use on the hearing of an appeal shall be prepared in bound volumes or a suitable binder on paper of international size A4, and every tenth line on each page shall be numbered.
The thickness of any one volume of the appeal book shall not exceed 38 mm.
It is a practical limit, not an arbitrary one. A volume much thicker than that will not stay open on the bench, and a Judge reading it cannot keep a finger in two places.
A record that runs to 900 pages therefore becomes three or four volumes. Number them, and carry the pagination continuously across volumes so that “page 640” identifies one place in the book.
So that a passage can be identified precisely: “appeal book page 214, lines 18 to 24”. Written submissions and the extract of argument both depend on it, and so does the Court’s ability to check a reference quickly during argument.
Title page and index
The title pages shall give the full and correct title of the proceedings and the names of the lawyers for each party, telephone numbers and their addresses for service.
After the title page there shall follow the index, consisting of a complete list of the documents contained in the appeal book as settled by the Registrar, stating whether each is copied or not, and if copied, at what page it appears.
In the Index, the exhibits shall be arranged in the order in which they have been lettered or numbered in the National Court.
Not the draft. Rule 42(b) requires the Registrar to settle the index at the appointment, and the book must reproduce what was settled. Where something was added or removed at the settlement, the index in the book reflects that.
How each document appears
The date and a short description of each document shall precede it, but back-sheets or formal headings shall not be printed or copied, and jurats, formal identification of exhibits and the like shall be omitted.
Interrogatories and answers, and affidavits of documents, shall not be copied except so far as they were put in evidence.
Where the transcript of evidence is reproduced, the name of the witness together with a notation indicating whether the evidence given is in chief (IC), cross examination (XX) or re-examination (RX) shall appear on the right-hand side of each page.
Rules 43(9) to (11)
A copy of the appeal book shall be examined with the original documents, and all copies shall be corrected.
The examined copy of the appeal book shall be filed in the registry with a certificate by the parties or their lawyers that it has been examined and is correct.
The appeal book shall be prepared and produced in a manner satisfactory to the Registrar.
Signing it says the book has been read against the source documents. Where a page is missing, an exhibit is out of order, or a transcript passage is wrong, the certificate has been given inaccurately.
The certificate is also item (j) in the Rule 43(13) order — it goes into the book itself, at the end.
Practical points
Paginate continuously. One sequence across all volumes. Do not restart at 1 in volume 2.
Paginate last. The index must give the page at which each document appears, so the numbering must be final before the index is completed.
Keep the electronic file. Order 13 contemplates scanning — documents of a size that make scanning impracticable are dealt with separately — and a paginated PDF matching the book is useful for submissions and for the Court.
Do not renumber exhibits. Rule 43(5) and (13)(e) both require the National Court lettering or numbering to be preserved. Renumbering breaks every reference in the transcript and in the reasons.
If the requirements cannot be met
Where compliance with the provisions of the Rules relating to the preparation of documents or appeal books may cause unnecessary hardship, expense or delay, the Registrar may, after consultation with the Chief Justice, or if he is not available the next most senior Judge in Chambers, waive compliance to such extent as in his opinion is reasonable.
This is the provision to invoke where a record is enormous, where a party is unrepresented, or where an exhibit cannot sensibly be reproduced. Ask before lodging something non-compliant, not afterwards.
And note Rule 32: where an exhibit cannot be delivered, the Associate states the circumstances in the certificate and gives such information as will enable the Registrar to cause the exhibit to be available at the court — so a physical exhibit need not be copied into the book at all.
The requirements are not formalities
Rule 43(11) requires the book to be produced in a manner satisfactory to the Registrar, and a book that does not comply can be sent back — which means it is not filed, which means under Order 13 Rule 7(2) the appeal is not added to the Callover List.
The cost of getting the specification wrong is therefore a month, not an embarrassment. Read Rule 43 before the copying is ordered, not after the volumes arrive.
Sources
- Supreme Court Rules 2012 — O 7 rr 32, 42, 43, 44; O 11 r 10; O 13 r 7
- Supreme Court Act (Chapter 37) — ss 6, 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.