The draft index is what makes the settlement appointment useful. Without one, the Registrar has nothing to settle and the parties have nothing to argue about.
Order 7 Division 13
A draft index of the papers which are to constitute the appeal book shall be prepared and filed in the registry before the date appointed for settlement.
The appellant shall serve the draft index on the respondent a reasonable time before the appointment to settle the appeal book but no later than two clear days before settlement.
Filed in the registry — before the settlement date.
Served on the respondent — a reasonable time before, and in any event no later than two clear days.
“Two clear days” is a floor, not the standard. Rule 41 sets “a reasonable time” as the requirement and two clear days as the absolute minimum. An index served at the last moment in a matter with a long record does not comply merely because it is two days out.
What the index looks like
The settled index must be in the order Rule 43(13) prescribes, so the draft should be too —
(a) the notice of appeal; (b) process and pleadings; (c) evidence, oral or affidavit, stating the name of each witness or deponent; (d) testimony taken on commission or before an examiner; (e) exhibits, in the order in which they were lettered or numbered in the National Court; (f) the reasons for judgment; (h) the formal judgment or order; (i) where the appeal is from a Judge sitting on an appeal, the notice of appeal, reasons and formal order in that proceeding; (j) the certificate of examination.
Rule 43(6): the date and a short description of each document shall precede it. The index should carry the same information, so that the reader can identify a document without turning to it.
Rule 43(4) requires the index in the finished book to state in the case of each document whether it is copied or not, and if copied, indicating at what page of the appeal book it appears. Page numbers cannot be given in the draft, but the “copied or not” column can and should be.
The discipline of Rule 43(12)
Rule 43(12): only such documents as are relevant or necessary shall be included in the appeal book.
Rule 46: the costs of copies of unnecessary documents or of documents copied at unnecessary length shall not be allowed.
So an index that lists the whole National Court file costs the appellant money even if the appeal succeeds. Work from the grounds of appeal: for each ground, what does the Court need to read to decide it?
Rule 43(6): back-sheets or formal headings shall not be printed or copied, and jurats, formal identification of exhibits and the like shall be omitted.
Rule 43(7): interrogatories and answers, and affidavits of documents, shall not be copied except so far as they were put in evidence.
Getting your material in
A respondent relying on a notice of contention shall —
(b) give notice to the appellant of the record of evidence or documents before the National Court relevant to the contention, for inclusion in the appellant’s draft index to be prepared in accordance with Rule 40; and
(c) request the Registrar to include such record of evidence or documents in the appeal book.
A cross-appellant should follow the same course. The appellant prepares the index from the appellant’s grounds, and will not include material that goes only to someone else’s case.
Rule 29(b) speaks of inclusion in the appellant’s draft index. A request made after the draft is filed puts the respondent in the position of asking for an amendment at the settlement, which the Registrar may or may not accept.
If you cannot agree
At the settlement — Rule 42(a) makes it the Registrar who determines what documents and matters shall be included and the order of inclusion. Rule 42(d) lets him obtain the direction of the primary Judge where he thinks it necessary.
Beyond the settlement — Order 13 Rule 7(5): any issue arising in respect of the book not determined to the satisfaction of the parties by the Registrar shall be referred to the Duty Judge.
That is a real remedy, and a party genuinely prejudiced by an exclusion should use it rather than complaining at the hearing.
Before you file the draft
- Does it follow the Rule 43(13) order?
- Does every entry carry a date and short description?
- Are the exhibits in the National Court lettering or numbering?
- Can you justify every document by reference to a ground of appeal?
- Has it gone to the respondent with more than two clear days to consider it?
What a draft index looks like
| Item | Date | Description | Copied |
|---|---|---|---|
| 1 | 14.03.25 | Notice of Appeal | Yes |
| 2 | 02.06.22 | Writ of Summons and Statement of Claim | Yes |
| 3 | 28.07.22 | Defence | Yes |
| 4 | 11.09.23 | Affidavit of J. Kaupa (deponent: J. Kaupa) | Yes |
| 5 | 03.10.23 | Transcript, 3 October 2023 (witness: M. Warika) | Yes |
| 6 | — | Exhibit A — Contract dated 4 May 2021 | Yes |
| 7 | — | Exhibit B — Survey plan (oversized) | No — available at Court under O 7 r 32 |
| 8 | 19.02.25 | Reasons for Judgment | Yes |
| 9 | 19.02.25 | Formal Order | Yes |
| 10 | — | Certificate of examination (O 7 r 43(10)) | Yes |
The order follows Rule 43(13). Each entry carries a date and short description, as Rule 43(6) requires. The copied or not column is there from the draft stage, so that the Registrar can see at settlement what is proposed to be reproduced and what will be produced at the Court instead.
Sources
- Supreme Court Rules 2012 — O 7 rr 29, 40–43, 46; O 13 r 7
- Supreme Court Act (Chapter 37) — ss 6, 29
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.