Form 7 is one of the two documents that start a Supreme Court appeal. Which one you need — or whether you need both — depends on the judgment and on your grounds.
The application for leave
An application for leave to appeal shall be made by filing a notice in writing and shall … be in accordance with Form 7.
The forms are in the First Schedule to the Supreme Court Rules 2012 — Order 1 Rule 7(3).
Order 7 Rule 4 sets out the content. The form must:
(a) be entitled “In the Supreme Court of Justice”, and as between the party as appellant and the party as respondent;
(b) show that an appeal lies with leave;
(c) state the nature of the case, the questions involved and the reason why leave should be given;
(d) show an address for service;
(f) be served forthwith on all parties to the proceedings the subject of the proposed appeal, or their lawyers.
The distinction that matters
| Form 7 | Form 8 | |
|---|---|---|
| What it is | Application for leave to appeal | Notice of appeal |
| When | Where the appeal lies only with leave | Where the appeal lies as of right, or after leave is granted |
| Rule | O 7 r 4 | O 7 r 9 |
| Effect of filing | Asks the Court to allow an appeal | Institutes the appeal — O 7 r 7 |
| Heard by | A single Judge — O 7 r 3 | The full Court |
| Deadline | 40 days from the judgment — s 17 | |
In Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555 the Supreme Court held that where the grounds involve questions of law and/or mixed fact and law, the appeal lies as of right and a Form 8 notice is filed; where they involve only questions of fact, a Form 7 application for leave is required.
It followed that where an appeal raises law, mixed fact and law, and fact, separate notices — Forms 7 and 8 — are required.
The Court also held that the then third alternative in paragraph 2 of Form 8, which stated that leave to appeal was sought at the hearing of the appeal, was without legal basis and must be deleted, and it overruled Opai Kunangel v The State [1985] PNGLR 144.
So leave cannot be reserved to the hearing. It is applied for properly, in Form 7, in time.
Substantial compliance
The forms in the First Schedule shall be used where applicable. It is sufficient compliance if a document is substantially in accordance with the requirement, or has only such variations as the nature of the case requires. A form shall be completed in accordance with the directions, if any, contained in the form.
Rule 8 covers minor departures within the correct form. It does not permit using a different document.
In Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082 the Court held that where the Rules do not expressly prescribe the manner of an application — there, for a stay — the proper course is an application using the appropriate prescribed form, and that an application made by notice of motion would be incompetent and may be struck down.
Completing the form well
- Name the provision. Rule 4(b) requires the form to show that an appeal lies with leave. Identify it: section 14(1)(c) for a question of fact, section 14(3)(b) for an interlocutory judgment, section 14(3)(c) for costs only, section 22(c) or (d) in a criminal matter.
- Frame the grounds as questions. Rule 4(c) asks for the questions involved, and a question reads as arguable in a way that an assertion does not.
- Say what turns on it. The reason leave should be given is usually about consequence — that the ruling effectively decides the case, that the point will recur, or that there is no other remedy.
- Give an address for service within 15 kilometres of the Registry. Order 11 Rule 4 requires it, together with a name, address and telephone number, and an address to which documents may be posted.
A Form 7 that runs to twenty pages of argument invites the Judge to decide the appeal on incomplete material. The application exists to show that the questions are worth hearing, not to answer them.
What follows
Service forthwith — Rule 4(f). And Rule 5 applies Rule 11 to a leave application with the necessary modifications, so filing counts as giving notice for sections 17 and 29 of the Act.
A hearing before a Judge — Rule 3. A refusal may be taken to the full Court under section 10(2).
If leave is granted, 21 days to file the notice of appeal — Rule 6, extendable only on an application filed and served within those 21 days.
A respondent objecting to competency files Form 9 within 14 days after service — Order 7 Rule 15. Under Rule 18 the burden of establishing incompetency is on the objector; and under Rule 19, a respondent who does not give notice of objection and later succeeds in having the matter dismissed as incompetent shall not receive costs unless the Court orders otherwise on special grounds.
Sources
- Supreme Court Rules 2012 — O 1 rr 7, 8; O 7 rr 3–7, 9, 15, 18, 19; Forms 7, 8, 9
- Supreme Court Act (Chapter 37) — ss 10, 14, 17, 29
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
- Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082
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.