“Collection of papers” is the heading Order 7 Division 12 gives to the four rules that stand between filing an appeal and settling the appeal book. They are short, and they take longer to comply with than anything else in the Rules.
Order 7 Rule 36
Before the date appointed for settling the appeal book, the appellant shall obtain and produce to the Registrar, if required —
(a) the reasons for judgment of the primary Judge or Court; and
(b) a copy of the notes of evidence taken by the primary Judge certified by his Associate or other authorized person.
The Judge’s own notes of evidence, certified by the Associate, are contemplated as the record where no transcript exists. In a great many matters that is the reality, and the certified notes are what the appeal proceeds on.
Ask the associate for them early. The certification is what makes them usable.
Rules 37 to 39
If a copy of the transcript of proceedings is available, it shall be obtained from the Registrar and corrected in accordance with Rules 38 and 39.
The appellant shall, on obtaining a copy of the transcript —
(a) correct any errors that appear in it;
(b) submit a list of corrections to the respondent;
(c) afford the respondent a reasonable opportunity of examining the transcript and corrections.
If the parties disagree upon the accuracy of any part of the transcript or are unable to agree upon a correction, the question shall be submitted to the Registrar or primary Judge for direction on the matter.
Correcting is not optional
Because an appeal is by way of rehearing on the evidence given in the National Court — section 6 of the Supreme Court Act — what the transcript says a witness said is, on appeal, what the witness said.
A ground alleging that a finding was unsupported by evidence depends entirely on the accuracy of the passage relied on. A mis-transcribed “not” can decide an appeal.
Rule 38 does not allow the appellant to correct the transcript unilaterally. The corrections go to the respondent, who must be given a reasonable opportunity to examine both the transcript and the corrections.
Rule 39 in practice
The rule allows the question to go to the Registrar or primary Judge.
Where the dispute is a clerical slip, the Registrar can resolve it. Where it is about what a witness actually said, the primary Judge heard it and has the notes, and that is the sensible reference.
Rule 42(d) reinforces this: at the settlement the Registrar may, if he thinks necessary, obtain the direction of the primary Judge.
Getting the material
Order the transcript immediately. Not when you decide to appeal — the 40 days under section 17 run from the judgment, and transcript delays do not extend them.
Ask the associate for the certified notes of evidence and the exhibit list. Rule 31 requires the Associate, on the filing of a notice of appeal, to make out and certify a list of exhibits and deliver the exhibits and other documents to the registry — but that is triggered by service under Rule 13.
Note the retention period. Rule 30: exhibits are retained for 40 days after the judgment is pronounced, extended by a further 40 if leave is granted within that period.
When the transcript does not come
Use Rule 36(b). The Rules contemplate proceeding on the certified notes of evidence where no transcript is available. Rule 37 is conditional — if a copy of the transcript of proceedings is available.
Ask for directions. Order 13 Rule 8(d) lists among the matters for a Directions Hearing the availability of National Court depositions including the primary judge’s reasons for decision and the typed transcript of the proceeding. Order 7 Rule 47 allows the Court or a Judge at any time to make such orders as appear just for the expediting of the appeal.
Move the appointment. Better to have the settlement date adjusted than to attend without the record.
Doing nothing and explaining later. The obligation under Rule 48 is to prosecute the appeal with due diligence, and an appellant who waited six months for a transcript without chasing it, seeking directions, or telling the other side has not.
See want of prosecution.
Getting the exhibits
Rule 30 — where an appeal may lie by leave or without leave, the officer of the National Court who has custody of the exhibits shall, unless the primary Judge otherwise orders, retain the exhibits for 40 days after the date when the judgment is pronounced, or, if leave to appeal is granted within that period, for a further period of 40 days.
Rule 31 — upon the filing of a notice of appeal, the Associate to the primary Judge shall make out and certify a list of exhibits, and the exhibits, the list and any other documents before the primary Judge shall be delivered to the registry.
Rule 32 — where an exhibit cannot be so delivered, the Associate shall state the circumstances in the certificate and give such information as will enable the Registrar to cause the exhibit to be available at the court. The Registrar shall retain the documents until the disposal of the appeal and, subject to any direction, return them to the persons from whom they were obtained.
Forty days from the pronouncement of judgment is the same period as the appeal itself. An appellant who files on day 38 and serves the associate a fortnight later may find the exhibits have gone back to the parties who produced them.
Rule 32 provides a way through, but it turns a routine step into correspondence. Serve the associate in the same week you file.
Sources
- Supreme Court Rules 2012 — O 7 rr 13, 30–33, 36–42, 47, 48; O 13 r 8
- Supreme Court Act (Chapter 37) — ss 6, 17
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.