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What Is an Extract of Argument?

A four-page distillation of a party’s argument, handed up to each Judge at the hearing. Order 11 Rule 18 requires one in all substantive matters — not on direction, but as a standing obligation.

The Supreme Court practice series, no. 72 · Preparing for and running the hearing · 5 min read

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

Standing, not on direction

In all substantive matters instituted under these rules, the parties to proceedings shall prepare a written extract of argument to the court.

Supreme Court Rules 2012

Compare Rule 12

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

Four pages, on the Rule 13 model

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).

Both limbs matter

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

Handed up by counsel, to each Judge

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 compared with the extract of argument
Written submissionsExtract of argument
RequiredOnly on direction (O 11 r 12)In all substantive matters (O 11 r 18)
LengthNot more than 10 pages (r 16)Not more than 4 pages (r 19(b))
Timing10 days from the direction; other parties 10 days from receiptHanded up at the hearing (r 20)
DeliveryFiled and served; 4 copies lodgedGiven to each Judge by counsel
SignatureMust be signed (r 16)No express requirement
ChronologyRequired with the submissions (r 17)Not required
In practice

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

Order 13 Rule 10(2)(f)

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”

Wider than appeals

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

A workable structure

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.

One relieving provision

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

Each avoidable

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

Check the section yourself

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.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.