Section 16 is short, and it is the provision an appellant should have in mind when drafting paragraph (d) of the notice of appeal.
The provision
On the hearing of an appeal, the Supreme Court shall inquire into the matter and may —
(a) adjourn the hearing from time to time; or
(b) affirm, reverse or modify the judgment; or
(c) give such judgment as ought to have been given in the first instance; or
(d) remit the case in whole or in part for further hearing; or
(e) order a new trial.
The obligation comes first. It reflects section 6: the appeal is by way of rehearing on the evidence given, with power to draw inferences of fact. The Court does not confine itself to the reasoning below.
Matching the order to the error
| The error | The order |
|---|---|
| A point of law wrongly decided on undisputed facts | Reverse, and give the judgment that ought to have been given — s 16(b), (c) |
| The right result, wrong sum — a discount rate, an interest calculation | Modify — s 16(b) |
| A claim struck out that should have gone to trial | Reverse and remit — s 16(b), (d) |
| Findings of fact that cannot stand, needing evidence to be reheard | New trial — s 16(e) |
| Liability decided correctly, damages assessed on a wrong basis | Remit in part — s 16(d) |
| An interlocutory order wrongly made | Reverse, and substitute the order that should have been made |
The notice of appeal must say
The notice of appeal shall state what judgment the appellant seeks in lieu of that appealed from.
“That the appeal be allowed with costs” is not a statement of the judgment sought. It says nothing about whether the appellant wants judgment entered, the matter remitted, or a new trial.
Where the choice is genuinely open, plead it in the alternative — judgment for the appellant, alternatively remitter for reassessment. But choose a primary position, because the Court will ask what you actually want.
Paragraph (d) of section 16
A partial remitter is often the right order. Where liability was correctly decided but damages were assessed on a wrong footing, remitting only the assessment preserves what was rightly decided and confines the further hearing.
Ask for it in those terms, and identify what is remitted and what stands. A remitter expressed at large invites a second dispute about its scope.
Remitter sends the case back for further hearing on the existing footing — often to the same Judge, and often on the existing evidence with more.
A new trial starts the hearing again. It is the appropriate order where the trial itself miscarried — a denial of natural justice, evidence wrongly admitted or excluded going to the whole case, or findings so affected that nothing can be salvaged.
A new trial is expensive and is not ordered lightly. See new trials.
Where both sides seek relief
A notice of cross-appeal must state what relief is sought in lieu of the order cross-appealed from or the variation sought in that order — the same discipline as Rule 9(d).
Where a respondent merely says the judgment should be affirmed for a different reason, no relief is sought and a notice of contention is the right document. Affirming on different reasoning is still affirming under section 16(b).
Section 8
Where it thinks it necessary or expedient in the interests of justice, the Court may order the production of any document, exhibit or other thing; order compellable witnesses to attend and be examined, whether or not called at trial, or to be examined on oath before a Judge, an officer of the Court, a magistrate or an appointed person, and may admit as evidence any deposition so taken; order a reference for inquiry and report by a referee; exercise any other powers exercisable by the National Court on appeals; and issue any warrants necessary for enforcing its orders or sentences.
Section 33(2): the report of a referee shall, unless set aside by the Supreme Court, be deemed to be a finding of fact.
Where some grounds succeed
Appeals are frequently allowed in part. Two grounds succeed, four fail, and the question is what order the successful grounds justify.
Section 16(b) allows the Court to modify the judgment rather than reverse it — the right order where the primary Judge was correct in principle but wrong on a component. And section 16(d) allows a remitter in part, so that only the affected issue is reopened.
This is why grounds should be drafted to stand alone. A composite ground that is right about one thing and wrong about three others is hard to act on; four separate grounds are not. See drafting grounds of appeal.
And the order on costs
Order 12 governs costs of an appeal, and Order 12 Rule 24 treats the costs of any application or step as part of the costs of the party in whose favour the application or other step is determined. Order 7 Rule 45 makes the costs of the appeal book costs in the appeal unless the court otherwise orders.
In criminal appeals, section 31(1) provides that on the hearing and determination of an appeal, no costs shall be allowed to either side.
Sources
- Supreme Court Act (Chapter 37) — ss 6, 8, 16, 31, 33
- Supreme Court Rules 2012 — O 7 rr 9, 28, 45; O 12 r 24
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.