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What Is Form 7 in the Supreme Court?

The prescribed form for an application for leave to appeal. It is not the notice of appeal — that is Form 8 — and where an appeal raises both fact and law grounds, both forms must be filed.

The Supreme Court practice series, no. 21 · Leave to appeal · 5 min read

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

Order 7 Rule 4(e)

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).

What must appear on it

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 compared with Form 8
Form 7Form 8
What it isApplication for leave to appealNotice of appeal
WhenWhere the appeal lies only with leaveWhere the appeal lies as of right, or after leave is granted
RuleO 7 r 4O 7 r 9
Effect of filingAsks the Court to allow an appealInstitutes the appeal — O 7 r 7
Heard byA single Judge — O 7 r 3The full Court
Deadline40 days from the judgment — s 17
Sometimes you need both

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

Order 1 Rule 8

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.

This forgives variation, not substitution

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

The four practical points
  1. 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.
  2. 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.
  3. 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.
  4. 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.
Length is not the measure

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

Three things

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.

And the respondent’s move

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.

See objections to competency and the forms generally.

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.