The appointment is the pivot of the whole appeal-book process. Several deadlines run to it, and one important right — amendment without leave — expires on it.
Order 7 Rule 33
The appellant shall on filing the notice of appeal get from the proper officer in the registry an appointment to settle the appeal book.
Rule 33 ties the appointment to the act of filing. Obtaining it at the same time avoids a second trip, and — more importantly — fixes the date from which the rest of the timetable is worked backwards.
An appellant who files and leaves without an appointment has already failed to do an act required by the Rules, which is the language of Rule 48.
Rules 34 and 35
Rule 34 — the appellant shall serve notice of the appointment on each person on whom the appeal is served.
Rule 35 — the notice of appointment may be subscribed to the notice of appeal.
Subscribing the appointment to the notice of appeal means one document is served rather than two, and the respondent learns of the appeal and the settlement date at the same moment.
That is only possible if the appointment is obtained on filing, as Rule 33 contemplates — another reason to do it then.
Note that Rule 34 tracks Rule 13: everyone served with the appeal, which includes the associate to the primary judge.
What the Registrar decides
At the appointment to settle the appeal book, the Registrar shall —
(a) determine what documents and matters shall be included in the appeal book and the order of inclusion, and such other matters as he thinks fit concerning the preparation of copies of the appeal papers;
(b) settle the index in accordance with Rule 43(13);
(c) determine the number of copies of the appeal book required;
(d) may, if he thinks necessary, obtain the direction of the primary Judge.
Where the parties disagree about whether a document was in evidence, or what the primary Judge actually had, the Registrar can go back to the Judge. Order 13 Rule 7(5) provides the further route: any issue arising in respect of the book not determined to the satisfaction of the parties by the Registrar shall be referred to the Duty Judge.
What runs to the appointment
| Obligation | Timing | Rule |
|---|---|---|
| Obtain the reasons and certified notes of evidence | Before the date appointed | O 7 r 36 |
| Correct the transcript and give the respondent an opportunity to examine it | Before settlement, in practice | O 7 rr 38, 39 |
| Prepare and file the draft index | Before the date appointed | O 7 r 40 |
| Serve the draft index on the respondent | A reasonable time before, and no later than two clear days | O 7 r 41 |
| Amend the notice of appeal without leave | Before the date of appointment | O 7 r 25 |
Rule 25 allows a notice of appeal to be amended without leave by filing a supplementary notice only before the date of appointment to settle under Rule 42.
So the appointment date is also the deadline for tidying up the grounds — subject to the separate 40-day bar in Rule 26 on adding a ground. See amending the notice.
Who attends, and prepared for what
Bring the reasons for judgment, the certified notes of evidence or the corrected transcript, the exhibit list certified by the associate, and a marked-up draft index showing what is proposed and why.
Be ready to justify inclusions. Rule 43(12): only such documents as are relevant or necessary shall be included. Be ready to justify exclusions too — a respondent who says a document is needed will want a reason for leaving it out.
And know how many copies you expect to need, so paragraph (c) can be dealt with.
Adjourning or vacating
Where the transcript has not arrived, or an exhibit cannot be located, ask the registry to move the appointment rather than attending with nothing. A settlement that cannot proceed is a wasted attendance for everyone and reflects on the appellant.
Where the difficulty is structural — a transcript that will take months — raise it as a matter for directions. Order 13 Rule 8(d) lists, among the matters the Duty Judge may give directions on at a Directions Hearing, the availability of National Court depositions including the primary judge’s reasons for decision, the typed transcript of the proceeding, and the filing of the Index to the Book and its certification.
Order 7 Rule 47 is also available: the court or a Judge may at any time make such orders as appear just for the expediting of the appeal.
If you receive a notice of appointment
Diarise the date. It is the date by which the appellant’s right to amend without leave expires, and the date on which the contents of the book are fixed.
Watch for the draft index. Rule 41 gives you at least two clear days. If it has not arrived by then, say so in writing — that is a failure to do an act required by the Rules.
Identify what you need included. Rule 29(b) and (c) is the mechanism where you rely on a contention; a cross-appellant should use the same route. Send the list to the appellant, and request the Registrar to include it.
Attend. The Registrar determines contents and order under Rule 42(a). A respondent who does not attend has accepted whatever is proposed, and will find it hard to complain later.
Sources
- Supreme Court Rules 2012 — O 7 rr 13, 25, 26, 33–43, 47, 48; O 13 rr 7, 8
- Supreme Court Act (Chapter 37) — ss 6, 17
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.