The Rules are unusually prescriptive about contents. Following them saves argument at the settlement and money on taxation.
Order 7 Rule 43(13)
(a) The notice of appeal to the Supreme Court;
(b) Process and pleadings;
(c) Evidence, oral or affidavit, stating the name of each witness or deponent and page number on which such evidence commences;
(d) Testimony taken on commission or before an examiner and put in or used as evidence;
(e) Exhibits, arranged in the order in which they have been lettered or numbered as exhibits in the National Court;
(f) The reasons for judgment of the primary judge or Court;
(h) The formal judgment or order of the primary Judge or Court;
(i) Where the judgment appealed from is that of a Judge sitting on an appeal — the notice of appeal, the reasons for judgment and the formal order in that proceeding;
(j) The certificate that the appeal book has been examined and is correct.
A requirement that catches people
Where the text of an oral judgment is to be included in the appeal book, it shall first be submitted to the Judge for correction, and shall, when included, be accompanied by a certificate from the Registrar that this has been done.
So an ex tempore judgment cannot simply be transcribed and inserted. It goes to the Judge, comes back corrected, and travels with the Registrar’s certificate.
Start that process early. It involves the Judge’s chambers and the registry, and neither is under your control.
Express exclusions
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.
Only such documents as are relevant or necessary shall be included in the appeal book.
The costs of copies of unnecessary documents or of documents copied at unnecessary length shall not be allowed.
An appellant who succeeds on appeal and is awarded costs will not recover the cost of copying the documents that should not have been there. In a large matter that is a substantial sum, borne personally.
The discipline is simple: for each document, name the ground of appeal it goes to. If you cannot, leave it out.
Presenting the 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.
The evidence section must state the name of each witness or deponent and page number on which such evidence commences. Combined with Rule 43(1) — every tenth line on each page shall be numbered — this is what allows counsel to say “appeal book page 214, line 20” and have the Court find it.
A book without line numbering makes the hearing slower and the written submissions harder to follow.
The front matter
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 in the case of each document whether it is copied or not, and if copied, indicating at what page of the appeal book 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.
Some documents are listed in the index but not reproduced — a bulky physical exhibit, for example, which Rule 32 contemplates being made available at the Court rather than copied. The index records that it exists and that it is not copied.
Before it goes to the printer
- Contents and order match the settled index under Rule 42(b).
- Any oral judgment has been corrected by the Judge and carries the Registrar’s certificate.
- Exhibits are in the National Court lettering or numbering.
- Back-sheets, jurats and formal headings are out.
- Every tenth line is numbered and every page paginated.
- Witness names and IC / XX / RX notations appear on the right-hand side of each transcript page.
- The certificate of examination is prepared for signature under Rule 43(10).
Paragraphs (f), (h) and (i)
Paragraph (f) requires the reasons for judgment. Paragraph (h) requires the formal judgment or order — the sealed order, entered by the registry.
Both are needed, and they are not interchangeable. The reasons show why the Judge decided as he did; the sealed order is what is actually appealed from, and what fixes the 40-day period under section 17 of the Supreme Court Act.
An appeal book with reasons but no sealed order leaves the Court without the document it is being asked to set aside.
Where the judgment appealed from is that of a Judge of the National Court sitting on an appeal, the book must also contain the notice of appeal, the reasons for judgment and the formal order in that proceeding — the first-instance record from the court or tribunal below.
That is why Order 7 Rule 12 requires a copy of the Supreme Court notice of appeal to be left with the court or tribunal from which the appeal to the National Court was brought. The two rules work together: the notice alerts the court below, and the book carries its record.
Sources
- Supreme Court Rules 2012 — O 7 rr 32, 42, 43, 46
- 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.