Form 8 is the document that starts a Supreme Court appeal. Order 7 Rule 7 puts it plainly: an appeal shall be instituted by a notice of appeal.
Order 7 Rule 9
(a) state that an appeal lies without leave or that leave has been granted, and/or annex the appropriate order;
(b) state whether the whole or part only and what part of the judgment is appealed from;
(c) state briefly but specifically the grounds relied upon;
(d) state what judgment the appellant seeks in lieu of that appealed from;
(e) be in accordance with Form 8;
(f) be signed by the appellant or his lawyer;
(g) be filed in the registry.
Establishing that the appeal lies
Paragraph (a) requires the notice to say, on its face, why this appeal is properly before the Court — either that it lies without leave, or that leave has been granted, annexing the order.
Where the appeal lies as of right, identify the basis: section 14(1)(a) for a question of law, section 14(1)(b) for mixed fact and law, or one of the section 14(3)(b) exceptions if the judgment is interlocutory.
Form 8 formerly offered a third alternative in paragraph 2, stating that leave to appeal is sought at the hearing of the appeal.
In Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555 the Supreme Court held that alternative was without legal basis and must be deleted, and overruled Opai Kunangel v The State [1985] PNGLR 144.
Leave is obtained beforehand, in Form 7. It cannot be reserved to the hearing.
Whole or part
Paragraph (b) requires the notice to state whether the whole or part only and what part of the judgment is appealed from.
This matters in three ways. It defines what the respondent must defend. It determines whether the appeal is caught by section 14(3)(c) as an appeal as to costs only. And where an order was made partly by consent, it isolates the contested part, since no appeal lies from a consent order under section 14(2).
The grounds
Two requirements pulling in opposite directions, and both are meant. A ground should be short — but it must identify the error precisely enough that the respondent and the Court know what is alleged.
Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence, or that it is wrong in law. The notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence, and the specific reasons why it is alleged to be wrong in law.
So “the learned trial judge erred in law” is a heading, not a ground. See drafting grounds and incompetent grounds.
The relief sought
Paragraph (d) is frequently neglected and should not be. Section 16 of the Act lets the Court affirm, reverse or modify the judgment, give such judgment as ought to have been given in the first instance, remit the case in whole or in part, or order a new trial.
The notice should say which. An appellant who wants judgment entered in their favour should say so; one who accepts that facts must be found again should ask for a remitter.
Paragraphs (f) and (g)
Signed by the appellant or his lawyer. An unsigned notice is defective on its face.
Filed in the registry. And by Order 7 Rule 11, upon filing the appellant is deemed to have given notice of appeal in the prescribed manner for sections 17 and 29. Filing is what satisfies the statutory deadline.
The notice must also show an address for service — Order 11 Rule 3 requires it on any document by which proceedings are instituted.
How closely must the form be followed?
The forms shall be used where applicable, and 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.
That forgives minor departures within Form 8. It does not forgive omitting a Rule 9 requirement, and it does not permit using a different document. See which form to use.
A notice of appeal may, before the date of appointment to settle under Rule 42, be amended without leave by filing a supplementary notice — Order 7 Rule 25. But the addition of a new ground of appeal shall not be made after the expiry of 40 days from the judgment — Rule 26.
So the notice as filed is very nearly the notice that will be argued. Order 7 Rule 25 permits tidying up until the appointment to settle; Rule 26 closes the door on new complaints at day 40.
Sources
- Supreme Court Rules 2012 — O 1 r 8; O 7 rr 7–13, 25, 26, 42; O 11 r 3; Form 8
- Supreme Court Act (Chapter 37) — ss 14, 16, 17, 29
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
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.