There is no Form for a supplementary notice. The Rules simply name the mechanism and leave the drafting to the parties — which is why they vary so widely in quality.
The mechanism
Rule 25 — a notice of appeal may, before the date of appointment to settle under Rule 42, be amended without leave by filing a supplementary notice.
Rule 26 — a party who files one shall file and serve it in accordance with Rule 13, and the addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment, or such further period as has been allowed by a Judge within those 40 days.
Five ordinary uses
1. Particularising grounds that were drafted too generally to satisfy Order 7 Rule 10.
2. Deleting grounds that are weak, or that have attracted an objection to competency.
3. Correcting the relief sought under Rule 9(d) — for instance, asking for a remitter rather than judgment.
4. Correcting the description of the judgment appealed from, or the statement under Rule 9(b) of what part is appealed.
5. Annexing the leave order where leave was granted after the notice was drawn.
How to draft one
Entitle it in the Supreme Court and between the same parties, under the existing appeal number.
Head it “Supplementary Notice of Appeal” and open by identifying the notice of appeal it amends, by its date of filing.
Set out the amendments in numbered paragraphs: ground 3 is deleted; ground 4 is deleted and the following substituted; paragraph 5 is amended by deleting X and inserting Y.
Sign it, and show an address for service. Order 1 Rule 8 makes substantial compliance sufficient where a form applies; where none does, follow the pattern of the document being amended.
Set out the notice as amended in full, marked as such, after the schedule of amendments. It is then possible to read one document as the operative grounds — useful at the hearing and essential for the appeal book.
Rule 26 imports Rule 13
Served without delay on each party affected by the relief sought or interested in maintaining so much of the judgment as is appealed from, and upon the associate to the primary judge.
Where the appeal is from a Judge sitting on an appeal, Rule 12 also requires a copy to be left with the court or tribunal from which the appeal to the National Court came.
Rule 26 says file and serve. A supplementary notice filed but not served leaves the respondent answering the original grounds, and gives the respondent a legitimate complaint at the hearing.
Two things it cannot do
Rule 26 is explicit. And in Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 a supplementary notice filed outside the 40-day limit was held incompetent.
Where a ground required leave under section 14 of the Act and leave was not sought within the 40 days, a supplementary notice cannot fix that. Leave is granted on an application in Form 7, not asserted in a supplementary notice.
Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555 held that leave cannot be reserved to the hearing of the appeal; the Form 8 alternative to that effect was without legal basis and must be deleted.
When to file
Rule 25 permits filing up to the day before the appointment to settle. That is the outer limit, not the target.
A supplementary notice served two days before the appointment leaves the respondent no time to reconsider the draft index, and no time to decide whether to object. It will attract criticism even if it is technically in time.
File as soon as the need is identified — and if the need is prompted by an objection to competency, before the objection is heard.
If you receive one
Is it within time? Before the appointment to settle for amendments; within 40 days of the judgment for anything that is in truth a new ground.
Does it add or amend? If it adds outside the 40 days, it is open to objection on Tsang.
Does the amended ground still need leave? A ground recast as one of law may on analysis remain a question of fact alone, requiring leave under section 14(1)(c).
Your 14 days to object under Rule 15 ran from service of the original notice. Where the supplementary notice raises a fresh competency point, raise it promptly — Rule 19 penalises a respondent who does not object and later succeeds in having the appeal dismissed as incompetent.
Where the amendment brings new material into issue, the draft index prepared under Rule 40 may no longer cover the appeal as it now stands. Raise that at the appointment to settle rather than discovering it at the hearing, and ask the Registrar to include what the amended grounds require.
Sources
- Supreme Court Rules 2012 — O 1 r 8; O 7 rr 9, 10, 12, 13, 15, 19, 25, 26, 40, 42; O 11 r 3
- Supreme Court Act (Chapter 37) — ss 14, 17
- Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112
- 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.