The extract of argument is the least understood document in Supreme Court practice, and the only one the Rules require in every substantive matter without any direction being made.
Order 11 Rule 18
In all substantive matters instituted under these rules, the parties to proceedings shall prepare a written extract of argument to the court.
Written submissions under Division 9 are prepared only where the court may of its own motion, direct them. The extract under Division 10 is required in all substantive matters, full stop.
“Substantive” distinguishes it from interlocutory applications. An appeal, a review, a reference — each requires an extract from every party.
Order 11 Rule 19
The extract shall be —
(a) as nearly as possible in accordance with Rule 13; and
(b) consist of no more than four pages of the size referred to in Order 7 rule 43(1).
Paragraph (a) imports the Rule 13 structure: the title of the proceeding; identification of the party; consecutively numbered paragraphs; concise statements of the circumstances out of which the matters arise, the contentions to be urged and the reasons relied upon; and a list of all legislation and authorities referred to.
Paragraph (b) fixes the size by reference to Order 7 Rule 43(1) — international size A4, the same paper as the appeal book.
Order 11 Rule 20
On the presentation of oral argument, each Judge constituting the court shall be given a copy of the extract referred to in Rule 18, by counsel presenting the argument.
Not lodged with the Registrar in advance; handed up at the hearing, by the advocate, to every member of the bench. Since the Court sits with at least three Judges under section 161(2) of the Constitution, bring at least three — five where the bench is five, and a spare.
How the two documents differ
| Written submissions | Extract of argument | |
|---|---|---|
| Required | Only on direction (O 11 r 12) | In all substantive matters (O 11 r 18) |
| Length | Not more than 10 pages (r 16) | Not more than 4 pages (r 19(b)) |
| Timing | 10 days from the direction; other parties 10 days from receipt | Handed up at the hearing (r 20) |
| Delivery | Filed and served; 4 copies lodged | Given to each Judge by counsel |
| Signature | Must be signed (r 16) | No express requirement |
| Chronology | Required with the submissions (r 17) | Not required |
Where submissions have been directed, the extract is the argument compressed to its essentials — the propositions the Court is being asked to accept, in order, with the authority for each. Where no submissions have been directed, the extract is the only written statement of the case the bench will have.
Either way it should be capable of being read in three minutes and used as a roadmap while counsel is speaking.
It is checked before the hearing
At the Status Conference, among the matters the Duty Judge checks is: Confirm that the parties have prepared extracts of submissions in accordance with Order 11 rule 18 to be handed up at the hearing of the matter.
So the extract is not something to write the night before. It is confirmed as prepared on the Monday of the week before the sittings, and a party who has not prepared one may find the matter referred to summary determination under Rule 10(2)(c) for non-compliance.
“All substantive matters”
Rule 18 applies to all substantive matters instituted under these rules. That takes in appeals under Order 7, applications for review of the National Court under Order 5, applications to enforce constitutional rights under Order 6, and references under Orders 3 and 4.
Order 13 Rule 1 draws the same line for listing purposes, defining “matter” as any appeal, application, review or other proceeding on the General List and includes any interlocutory application in respect of it — while Rule 7(4) provides that for interlocutory applications to be heard by a Judge a book shall not be required.
The practical test is whether the proceeding is the thing the Court is being asked to decide, or a step within it. Extracts are required for the former.
Making four pages work
Paragraph 1. Who you are and what order you seek — in one sentence.
Paragraphs 2–4. The circumstances, in the barest form: what the proceeding was, what the primary Judge decided, what is appealed.
Paragraphs 5 onwards. One numbered contention per ground, each followed by the reason and the authority, with appeal book references by page and line.
Final paragraph. The orders sought.
List of legislation and authorities, as Rule 13(e) requires.
Order 11 Rule 21: the court may dispense with any requirements of this rule. Where a matter is unusually complex, or where an unrepresented party cannot comply, the point can be raised — but it should be raised at the Status Conference, not at the hearing.
Four that recur
Not preparing one at all, on the assumption that written submissions suffice. Rule 18 is a separate and standing obligation.
Treating it as a summary of the submissions. It is the argument reduced to its propositions, not a condensed narrative.
Bringing too few copies. Rule 20 requires one for each Judge constituting the court, and the bench may be five.
Exceeding four pages, usually by setting out quotations. Order 11 Rule 14(1) — imported by Rule 19(a) — provides that extracts exceeding four lines shall not be set out, and that transcript references shall be given by page and line, and extracts shall not be set out.
Sources
- Supreme Court Rules 2012 — O 7 r 43(1); O 11 rr 12–22; O 13 r 10
- 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.