Service is separate from filing. Filing satisfies the 40-day deadline; service is what brings the other side into the appeal and starts the record moving.
Order 7 Rule 13
A copy of the notice of appeal shall be served without delay by or on behalf of the appellant on each party —
(a) affected by the relief sought by the notice of appeal; or
(b) interested in maintaining so much of the judgment as is appealed from;
and upon the associate to the primary judge.
It is functional. A co-defendant against whom the claim was dismissed and whose position the appeal does not touch is not affected by the relief sought and need not be joined as a respondent.
But where there is real doubt, serve. A party served who has no interest can say so; a party not served who did have one is a competency problem.
Why the associate
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 which were before the primary Judge shall be delivered to the registry.
Rule 30: exhibits are retained for a period of 40 days after the judgment is pronounced, and where leave to appeal is granted within that period, for a further period of 40 days.
An appellant who files on day 39 and serves the associate on day 50 may find the exhibits already returned. Rule 32 provides for that — the Associate states the circumstances in the certificate and gives such information as will enable the Registrar to have the exhibit available — but it costs time.
Serve the associate the same week you file.
Order 7 Rule 12
Where the appeal is from a judgment of a Judge given on an appeal from a court or tribunal, a copy of the notice of appeal shall be left with the court or tribunal from which the appeal to the National Court was brought.
So an appeal against a National Court decision on a District Court appeal requires a copy to go back to the District Court that heard the matter first. See appeals from the District Court.
Adding, dispensing, directing
The Court or a Judge may —
(a) direct that the notice of appeal be served on any party to the proceedings in the court below on whom it has not been served, or on any other person;
(b) dispense with service on any party to those proceedings either altogether or on such terms as it or he thinks fit;
(c) direct that service be effected in a particular manner.
Paragraph (b) is used where a respondent below has been wound up, has died, or cannot be found and has no interest in the outcome.
Paragraph (c) is used for substituted service — by advertisement, or on a last known address — where personal service has failed.
Both are sought by application in Form 4 under Order 13 Rule 15, made to a single Judge, stating the jurisdiction — Order 7 Rule 14 — and the grounds. See the single Judge’s powers.
Where the State is a party
In practice, service on the State in civil matters is effected on the Solicitor-General, and in criminal appeals the respondent is The State, represented by the Public Prosecutor.
Note the definition in Order 1 Rule 7: “the principal legal adviser” means the Principal Legal Adviser within the meaning of the Attorney-General Act 1989 — that is, the Attorney-General — a phrase that appears throughout the provisions on constitutional references.
Where the appellant is in custody, section 32 of the Supreme Court Act requires the officer in charge of the corrective institution, rural lock-up or police lock-up to place the forms and instructions at the disposal of detainees desiring to appeal, and to cause any such notice given by a detainee in his custody to be forwarded on behalf of the detainee to the Registrar. See criminal appeals.
Method and proof
Where a party has given an address for service, documents may be left at that place during ordinary business hours or posted to the address given. Where a lawyer has been allocated a compartment in the Document Exchange Box in the Registry, deposit in that compartment amounts to ordinary service.
For the notice of appeal itself — served before any appearance has been filed — service is on the party or their lawyer on the record below.
Nothing in the Rules requires it to be filed with the notice. But the appeal book must contain the notice of appeal and the relevant procedural documents, and on any argument about competency, delay or want of prosecution, the affidavit of service is the evidence.
Under Order 13 the Court may give directions on the conduct of the appeal, and the affidavit is what answers a question about when a step was taken.
Consequences
Rule 11 means late service does not defeat the appeal for want of a timely notice. But delay in service can support an application to dismiss for want of prosecution under Order 7 Rule 48, and it delays the record under Rule 31.
See late service.
Sources
- Supreme Court Rules 2012 — O 1 r 7; O 7 rr 11–14, 30–32, 48; O 11 rr 4, 5; O 13
- Supreme Court Act (Chapter 37) — ss 17, 29, 32
- Attorney-General Act 1989
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.