The appeal book is the single most labour-intensive part of a Supreme Court appeal, and the step at which most appeals stall. It is worth understanding what it is for before working out how to prepare one.
The Court decides on the record
An appeal to the Supreme Court is by way of rehearing on the evidence given in the court the decision of which is appealed against.
The Court does not hear witnesses. It reads what the primary Judge had, and decides whether the judgment can stand on that material. The appeal book is the evidence on the appeal.
An appeal book that omits a document is an appeal argued without it. See rehearing on the evidence.
No book, no hearing
(2) No substantive matter shall be added to the Callover List unless a book is filed.
(6) A substantive matter shall be added to the Call over List when the Book is filed.
(3) In respect of an appeal under Order 7 the book shall be as provided in Order 7 Divisions 14 and 15. For other applications, references and all other matters, the index and the application or reference book shall be prepared as closely as possible, and as far as relevant, to those Divisions.
The Registrar calls the Callover List once every month on the second Tuesday, and from there matters go to the Directions List and are given hearing dates. An appeal without a filed book never reaches that queue.
Rule 7(4) makes the position different for interlocutory applications to be heard by a Judge: a book shall not be required.
The order of contents
The appeal papers shall be paginated and the documents arranged in the following order —
(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 the page number on which the 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 were lettered or numbered in the National Court;
(f) the reasons for judgment of the primary judge or Court;
(h) the formal judgment or order;
(i) where the judgment appealed from is that of a Judge sitting on an appeal — the notice of appeal, reasons and formal order in that proceeding;
(j) the certificate that the appeal book has been examined and is correct.
Rule 43(12): only such documents as are relevant or necessary shall be included in the appeal book.
Rule 46 gives that teeth: the costs of copies of unnecessary documents or of documents copied at unnecessary length shall not be allowed. A book padded with the whole National Court file is a book the appellant pays for personally. See what goes in.
How a book comes into existence
| Step | Rule |
|---|---|
| Appointment to settle obtained on filing the notice of appeal | O 7 r 33 |
| Notice of the appointment served on everyone served with the appeal | O 7 r 34 |
| Collection of papers — reasons, certified notes of evidence, transcript | O 7 rr 36–39 |
| Draft index prepared and filed before the settlement date | O 7 r 40 |
| Draft index served, no later than two clear days before settlement | O 7 r 41 |
| Settlement before the Registrar — contents, order, index, number of copies | O 7 r 42 |
| The book prepared to the physical requirements | O 7 r 43 |
| Copies examined against the originals and corrected; certificate filed | O 7 r 43(9), (10) |
| Lodged with the Registrar and served on each separately represented respondent | O 7 r 44 |
| Matter added to the Callover List | O 13 r 7 |
The appellant’s responsibility
Rule 33: the appellant shall get the appointment. Rule 34: the appellant shall serve notice of it. Rule 36: the appellant shall obtain and produce the reasons and the certified notes of evidence. Rule 38: the appellant shall correct the transcript. Rule 41: the appellant shall serve the draft index. Rule 44: the appellant shall lodge and serve the copies.
A respondent has a role — examining the transcript corrections, attending the settlement, asking for material to be included — but the work and the risk belong to the appellant. See who prepares it.
What happens if it is not done
Where an appellant has not done any act required to be done by or under these rules, or otherwise has not prosecuted his appeal with due diligence, the Court or a Judge may dismiss the appeal for want of prosecution, fix a time peremptorily and order that on non-compliance the appeal shall stand dismissed, or make any other order that may seem just.
Failing to prepare the appeal book is the commonest way an appeal is lost without ever being argued. See want of prosecution.
Books in matters that are not appeals
For other applications, references and all other matters to be heard by the Court, the index and the application book or reference book shall be prepared as closely as possible, and as far as relevant, to Order 7 Divisions 14 and 15.
So a review under section 155(2)(b), a constitutional reference, or an election petition review each requires a book prepared on the appeal-book model. The vocabulary changes; the requirements do not.
But for interlocutory applications to be heard by a Judge, Rule 7(4) provides that a book shall not be required. An application for a stay, for security, or for directions proceeds on the application, the affidavits and the exhibits — not on an assembled record.
Sources
- Supreme Court Rules 2012 — O 7 rr 33–46, 48; O 13 r 7
- Supreme Court Act (Chapter 37) — ss 6, 16, 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.