Judgments are often mixed. A plaintiff wins on liability but loses on quantum; a defendant defeats three claims out of four. When the loser appeals, the winner may want to attack the part they lost.
Order 7 Rule 27
A respondent who desires to appeal from any part of the judgment, or to seek a variation of a part of the judgment, need not institute a substantive appeal, but in addition to complying with Order 11 rule 2 he shall, within the period or extended period provided for by s 17 of the Act, file in the registry a notice of cross-appeal.
You do not need a separate appeal. That is the concession the rule makes: one proceeding, one appeal book, one hearing, one set of costs.
You must also enter an appearance. Order 11 Rule 2 requires a person served with an instituting document who wishes to be heard to file an appearance in accordance with Form 16 and serve it on each other party, as soon as is practicable.
The section 17 time limit still applies. This is the trap, and it is dealt with below.
The 40 days run from the judgment
Rule 27 fixes the time by reference to the period or extended period provided for by section 17 of the Supreme Court Act — that is, 40 days after the date of the judgment, or such further period as is allowed by the Court or a Judge within that period.
An appellant who files on day 38 leaves a respondent two days to decide whether to cross-appeal. That is a real risk, and it is why a respondent who is dissatisfied with part of a judgment should decide early rather than waiting to see what the other side does.
A respondent past the 40 days cannot cross-appeal. Three possibilities remain: rely on a notice of contention under Rule 29 if the point does not require any variation of the order; ask a Judge for directions under Order 11 Rule 9, bearing in mind that no provision of the Rules can cure a breach of the Act; or consider a section 155(2)(b) review.
Cross-appeal or contention?
Cross-appeal where you want the order changed — a higher award, a claim reinstated, a costs order reversed, a finding of liability substituted.
Notice of contention where you are content with the order and merely say the Judge reached the right result for an additional or different reason.
Rule 29: it is not necessary to give notice of cross-appeal if a respondent proposes to contend that some matter of fact or law has been erroneously decided against him but does not seek a discharge or variation of a part of the judgment actually pronounced.
| What you want | Which document |
|---|---|
| The damages increased | Cross-appeal |
| A dismissed cause of action reinstated | Cross-appeal |
| Costs re-ordered in your favour | Cross-appeal (and note s 14(3)(c)) |
| The same judgment upheld on a defence the Judge rejected | Notice of contention |
| The same dismissal upheld on limitation rather than on the merits | Notice of contention |
| A finding of contributory negligence removed, with no change to the sum | Notice of contention |
Does a cross-appeal need leave?
Rule 28(b) requires the notice to state that the cross-appeal lies without leave or that leave has been granted, annexing the order. So the section 14 analysis applies to the cross-appeal in its own right.
A cross-appeal on a question of fact alone needs leave under section 14(1)(c). A cross-appeal as to costs only needs leave under section 14(3)(c). A cross-appeal against an interlocutory judgment needs leave under section 14(3)(b).
The fact that the appellant has appealed as of right does not carry the cross-appellant.
Form 10 paragraph 3 still offers the alternative that leave to cross-appeal is sought at the hearing.
The equivalent alternative in Form 8 was held to be without legal basis and ordered deleted in Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555. A cross-appellant who needs leave should obtain it in the ordinary way rather than relying on that paragraph.
What happens if the appellant withdraws?
Rule 27 says a respondent need not institute a substantive appeal — the cross-appeal is a substitute for one, not an adjunct to the appellant’s grounds. It has its own grounds under Rule 28(d) and its own relief under Rule 28(e).
A respondent who is genuinely dissatisfied with part of the judgment should therefore cross-appeal rather than rely on the appeal proceeding. Discontinuance by the appellant should not carry the cross-appeal with it, and any consent to discontinuance should say so expressly. See discontinuing an appeal.
Getting your material into the appeal book
A respondent relying on a contention must give notice to the appellant of the record of evidence or documents before the National Court relevant to the contention, for inclusion in the appellant’s draft index prepared under Rule 40, and request the Registrar to include such record of evidence or documents in the appeal book.
A cross-appellant should do the same. The draft index is prepared by the appellant, and material relevant only to the cross-appeal will not be in it unless you say so. See the draft index.
Sources
- Supreme Court Rules 2012 — O 7 rr 27–29, 40; O 11 rr 2, 9; Forms 10, 16
- Supreme Court Act (Chapter 37) — ss 14, 17
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
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.