By the time an appeal is called, almost everything has been settled: the grounds, the record, the submissions, the length of the hearing. The hearing itself is oral argument on a fixed record.
What has already happened
Under Order 13 Rule 10(2) the Duty Judge, on the Monday of the week before the sittings, confirms compliance with directions, the correctness of the Book, the length of hearing time, that written submissions have been prepared and filed, that extracts of submissions have been prepared under Order 11 Rule 18, and the date or dates for the hearing.
Within two days the Registrar issues the Hearing List, which is not subject to alteration except by the Chief Justice or the Court before which the matter is listed, and the hearing of a matter shall proceed on the date and time fixed.
Who sits
Section 161(2) of the Constitution requires the Supreme Court, for any hearing, to consist of at least three Judges. Benches of five are constituted where the question is of particular importance.
Section 2 of the Supreme Court Act: a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated (whether on appeal or otherwise) on the merits of the case — though a Judge is not precluded where he gave an interlocutory judgment only, or any other judgment not going to the merits.
See how many judges sit.
How the hearing runs
1. Appearances announced for each party.
2. Preliminary matters. Under Order 13 Rule 8A, interlocutory applications — fresh evidence, want of prosecution, objections to competency — are ordinarily heard at a separate and distinct hearing and determined before the substantive matter is set down, so these should already be resolved.
3. Extracts handed up. Order 11 Rule 20: on the presentation of oral argument, each Judge constituting the court shall be given a copy of the extract, by counsel presenting the argument.
4. The appellant’s argument, ground by ground, with references to the appeal book by page and line as Order 11 Rule 14(1) requires.
5. The respondent’s argument, and any cross-appeal or contention.
6. Reply, confined to matters arising.
7. Costs, usually addressed briefly at the end.
Where written submissions have been directed under Order 11 Rule 12, the bench has read them. Oral argument is for the propositions that matter and for answering the Court’s questions — not for reading the submissions aloud.
The four-page extract is the roadmap. Work through it, and be ready to take the Court to the passage of the appeal book that supports each point.
What the Court can do
Section 6(2): for the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
Section 6(1): the appeal is by way of rehearing on the evidence given below, subject to the Court’s right to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it and to draw inferences of fact.
Section 16 sets out what may be ordered: to affirm, reverse or modify the judgment; to give such judgment as ought to have been given in the first instance; to remit the case in whole or in part for further hearing; or to order a new trial. See orders on appeal.
If a party is not ready
At the hearing, the Court may exercise its discretion to summarily hear and determine any matter where the appellant fails to comply with directions issued at a Directions Hearing or Status Conference.
The Court may also hear a party’s application to summarily dismiss for failure to comply with directions — in writing, supported by affidavit, served on the respondent party one clear working day before the hearing.
An adjournment requires sufficient cause, in writing, on affidavit, to the bench, filed and served 3 clear days before the date: Order 13 Rule 13. See adjournments.
What to take into court
Extracts of argument — one for each Judge, plus a spare. Order 11 Rule 20 makes handing them up counsel’s obligation, not the registry’s.
Your own copy of the appeal book, marked up, with the passages you intend to take the Court to tabbed by page and line.
The written submissions and chronology as filed under Order 11 Rules 13 and 17.
The authorities on your list under Order 11 Rule 22, in the form you will hand up if asked.
The notice of appeal and any supplementary notice, so the grounds as they now stand can be identified precisely.
A short note on the orders sought, matching Rule 9(d) of Order 7 and section 16 of the Act.
Judgment
In a short matter the Court may deliver an ex tempore judgment. More often judgment is reserved and delivered later, on notice from the registry.
Where a Judge becomes unable to continue before delivery, section 3 provides that the hearing shall continue, the judgment shall be given by the remaining Judges and the Court shall be deemed to be duly constituted — unless a party does not agree, or only one Judge remains, in which case the appeal shall be reheard.
Order 14 provides for matters dealt with on the papers, on a timetable of submissions in chief and in reply, with judgment standing reserved from an Expiry Date certified by the Registrar. See the listings rules.
Sources
- Supreme Court Rules 2012 — O 11 rr 12–22; O 13 rr 8A, 10, 12, 13; O 14
- Supreme Court Act (Chapter 37) — ss 2, 3, 6, 16
- Constitution of the Independent State of Papua New Guinea — s 161(2)
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.