National Court Appeal Rules 2005

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Pursuant to Section 184 of the Constitution and Section 8 of the National Court Act (Chapter No 38) and all other powers thereunto enabling, the following rules prescribing the practice and procedure of the National Court of Justice relating to the conduct of appeals from decisions of the District Court and other statutory bodies or tribunals, shall come into force on a date specified in these Rules.

These Rules are intended to be read subject to the procedures prescribed by Part X of the District Courts Act (Chapter No. 40) and other relevant statues which prescribe the procedure for appeals to the National Court.

Chief Justice, Sir Mari Kapi, Kt; CSI
Deputy Chief Justice, Sir Salamo Injia, Kt.
Justice Sir Kubulan Los, Kt.
Justice Timothy Hinchliffe, CBE
Justice Gibbs Salika, OBE
Justice Moses Jalina, OBE
Justice Bernard Sakora, CBE
Justice Mark Sevua
Justice Don Sawong, MBE
Justice Nicholas Kirriwom
Justice Les Gavara-Nanu, OBE
Justice Ambeng Kandakasi
Justice Ellenas Batari, MBE .
Justice Catherine Davani
Justice Salatiel Lenalia
Justice Panuel Mogish
Justice Greg Lay
Justice David Cannings
Justice George Manuhu
Justice Kingsley Allen David
Justice Sao Gabi

Order 18 Division 1, rules 1 – 14 of the National Court Rules is hereby repealed and replaced with the following:

"Division 1 A. – Appeals from the District Court and other statutory tribunals.

The purpose of these Rules is to prescribe procedures for the conduct of appeal cases in the National Court with the establishment of a separate Appeals List. The Appeals List is conducted by a judge(s) assigned by the Chief Justice.

These Rules includes a consolidation of previous Practice Directions and Notes issued by the Registrar in relation to appeals, which are contained in Practice Direction Book 2004. Upon commencement of these Rules, those practice directions and notes will cease to apply. These Rules are intended to improve the disposition of appeal cases in the National Court, in a quick, fair and cheap manner.

The National Court’s appellate jurisdiction is conferred by various statutes, the main one being the District Court Act (Ch No. 240). The procedure for appeals in relation to appeals from the District Court is prescribed by this Act. Other statutes which provide for appeals from other statutory tribunals either prescribe their own procedure or adopt the procedure under the District Court Act, e.g. s.49 of the Workers Compensation Act (Ch No. 172). Other statutes are silent, e.g. s. 58 of the Lawyers Act 1986, in which case the procedure under the District Courts Act is usually adopted. These Rules are to be read subject to those provisions.

The Registrar shall maintain an Appeal List which shall contain all appeals cases pending determination in the National Court. This list shall be updated at the end of every circuit month.

Appeal matters bearing the following file reference shall be listed in the Appeal List:

CA No.	of	(year)	-Criminal appeals commenced by Notice of Appeal
CIA No.	of	(year)	-Civil appeals commenced by Notice of Appeal.
OS (App) No	of	(year)	-Applications for leave to extend time to appeal, dispensation of condition precedent to the right of appeal, etc; commenced by Origination Summons

The Chief Justice may assign a judge(s) to conduct the Appeals List as may be determined in the Annual Circuit Calendar issued by the Chief Justice.

The Registrar shall assign a Senior Clerk and such other Clerks to manage the Appeal List and to perform duties of the Registrar given under these Rules.

(1) Upon receipt of the Notice of Appeal by the Registrar, the Registrar shall fix a date for Directions Hearing before the Judge to take place within 14 days.

(2) Notice of the Directions Hearing shall be in the form in Schedule A, and it shall be given to the Appellant at the time the Notice of Appeal is filed, and cause a copy to be forwarded to the Respondent.

(3) The Directions Hearing shall be conducted by the Judge, every Mondays except on the Monday of the Supreme Court week.

(4) Where parties are represented by a lawyer, a lawyer who has knowledge of the case must attend the Directions Hearing.

(5) At the Directions Hearing, the judge may consider and determine and give such directions as may be necessary for the prompt disposition of the appeal, amongst other things, the following:-

(b) Failure to comply with any condition precedent to the right of appeal prescribed by statute.

(c) Dispensation or waiver of any condition precedent to the right of appeal prescribed by Statute.

(f) Availability of Court or tribunal’s depositions including the Magistrate’s or decision-maker’s Reasons for decision or report.

(i) Manner of presentation of arguments including filing of extract of arguments.

(1) The Appellant or his/her lawyer is responsible for compiling the Appeal Book.

(2) The Appellant or his/her lawyer is responsible for ensuring that the Court depositions are provided by the Clerk of Court or appropriate officer of the tribunal or authority which made the decision and received by the National Court.

Where a handwritten transcript is provided by a Magistrate, then the lawyer must ensure that they are typed by the lawyer and sent back to the Clerk with the hand-written original from whom the transcript has been received to certify in the following words:

"I,................................., Clerk of the Court hereby certify that I have examined the attached transcript with the original and certify that it is correct.

This Certificate entitled with the name and number of the National Court appeal and place of hearing of appeal shall be prepared for signature of the Clerk of Court by the lawyer for the appellant.

Where a hand-written transcript is provided by a person other than a Magistrate, then Lawyers must ensure that they are typed by the lawyer and sent back to the Clerk of the appropriate body with the hand-written original from whom the transcript has been received to certify in the following words:

"I, , Clerk of the , hereby certify that I have examined the attached transcript with the original and certify that it is correct.

vii. Magistrate’s Reasons – where delivered when the Decision is handed down by the Magistrate.

viii. Typed copy of the Transcript – signed by a Clerk of Court certifying that the Transcript is correct.

ix. Any other documents filed in the District Court including Complaint, Summons, Notice of Motion, Affidavits, Court orders, etc.

x. Any other documents filed on the National Court file, including Orders to Appeal out of time, that are deemed relevant on Appeal.

(b) All documents must be numbered and where there is reference to the transcript, the lines on the transcript must be numbered.

(c) If the Magistrate fails to provide Reasons for Decision when the decision is handed down by the Magistrate, then no such Reasons can be included in the Appeal Book. If a Magistrate gives verbal Reasons at the time when the Decision is announced in Court but this is not recorded in the transcript or where the Magistrate gives no reasons for his/her decision, then a Report from the Magistrate requested by the Registrar of the National Court and supplied by the Magistrate under s. 225 of the District Courts Act must be included in the Appeal Book, under Rule 6 (5) vii.

(d) The provisions of Order 7 Rule 43 of the Supreme Court Rules shall be adopted and applied as far as appropriate and applicable to the matter subject to the above modifications.

(e) Where both parties are represented by lawyers, then both parties must certify the correctness of the Appeal Book, and if there is any dispute as to the correctness of the Index and the contents of the Appeal Book, the Registrar or a Deputy Registrar may on seven (7) days notice by the Registrar settle the Appeal Book- such Notice of Appointment to be prepared for signing by the Appellant’s lawyer.

(f) If both parties are not represented by a lawyer, subject to parties meeting the cost of preparing the Appeal Book, the Registrar may give such assistance to the parties as is necessary to compile the Appeal Book.

(g) An Appeal Book must be delivered to the Court and served on the other party seven (7) days before the date fixed for the Pre-hearing Conference.

a. At the Pre-hearing Conference, the judge may amongst other things, issue further directions as may be necessary to make the proceedings ready for hearing, amongst other things:

(a) Confirm parties’ compliance with directions issued at the Directions Hearing in respect to various matters set out in Rule 5.

(c) Summary determination of appeals which fail to comply with directions issued at the Directions Hearing or otherwise fail to comply with procedures prescribed by the relevant statute.

(2) The Judge may adjourn the Pre-hearing Conference as may deem necessary for the parties to fully comply with the directions.

(3) Upon fixing a date for the hearing of the substantive appeal, the Registrar shall issue to all parties a Notice of Hearing in the form prescribed by the District Court Act.

Upon completion of Pre-hearing Conference, the judge’s Associate shall record a summary of the Pre-hearing Conference details in the form provided in Schedule "B" and place it on the Court file.

A status conference shall be conducted by the judge on the first day of the circuit month to confirm that all relevant directions and orders issued during the directions and pre- hearing conferences have been complied with and that the appeal is ready for hearing.

(1) The hearing shall proceed on the date and time fixed in the Notice of Hearing of Appeal.

(2) If an appeal is not heard, it must not be adjourned generally. It must be fixed or adjourned to a specific date and time.

(3) Any fresh evidence introduced by a party shall be by leave of Court only and by affidavit evidence only. Cross- examination on the affidavit shall not be allowed except with leave of the Court.

(4) At the hearing, the judge may summarily hear and determine any appeal which fails to comply with the procedure prescribed by the relevant statute or in which the parties fail to comply with directions issued at a Directions Hearing or Pre-Hearing Conference.

(5) After the appeal is heard and decision is made by the Judge, the Registrar shall forward a copy of the Order together with a copy of the written judgment to the Clerk of the Court or tribunal from which the decision is appealed. If there is no written judgment, a transcribed copy of the oral judgment that has been transcribed by the Court Reporting Service, shall be provided.

Proceedings in a Directions Hearing, Pre-hearing Conference or Hearing shall not be adjourned generally, even by consent. If parties require time to consider their position or negotiate a settlement, the proceedings may, with the approval of the judge, be adjourned to a comparatively lengthy period, but always to a fixed date (if appropriate) with liberty to restore the matter to the Directions Hearing or Pre- hearing Conference within that time.

(1) Originating Summons
Applications for extension of time to appeal or dispensation or waiver of any condition precedent to the right of appeal prescribed by statute must be instituted by Originating Summons and made ex parte.

(a) An application for stay of enforcement of order appealed from or any other interlocutory application may be made before the judge by Notice of Motion.

(b) The practice and procedure for Motions shall be those applying to Motions under the National Court Rules.

(c) Motions shall be heard on dates in the week as directed by the judge except in the Supreme Court week or in the Judgment Writing Week. The practice in Waigani for the time being is that Motions will be heard on Tuesday and Thursday of each week.

(d) Where the Court determines an application for stay, a sealed copy of the Order shall be forwarded to the Clerk or appropriate officer of the statutory authority or tribunal which made the decision.

Urgent ex parte applications for stay or other interlocutory applications may be made before the judge by prior arrangement with the Registrar. If the Judge is not available, they may be moved before the Motions Judge who is the Duty Judge for the circuit month..

(iii) upon referral by the Registrar in accordance with the procedure set out in (2) below.

(b) Where the Registrar refers a matter to the judge for summary determination, the following procedure shall be followed:-

(i) A notice letter in the form in Schedule "C" is issued by the Registrar which gives notice to the Appellant of his intention to refer the matter to the judge for summary determination on the grounds stated in the letter. The letter will also give the Appellant thirty (30) days to respond and fix a return date and time for the matter to come before the judge. A copy of the same letter is sent to the respondent. Where appropriate, the Registrar may publish the notice letter in the media.

(ii) If the Registrar receives any response, either verbal or in writing, he shall place on the file the response or a note of the verbal response received and advise the Appellant to appear in Court on the date fixed.

(iii) Upon the expiry of 30 days, the Registrar shall forward the file to the Judge together with any response received.

(iv) The judge may determine the appeal summarily based on the response received or report by the Registrar and any representations made by the parties or issue any directions as may seem necessary for the future conduct of the proceedings.

(v) If the parties are unrepresented, the Registrar shall draft the Court Order, enter it and forward sealed copies to the parties.

(vi) The Registrar shall also forward a sealed copy of the Order together with a copy of the judgment, if any, to the Clerk of the Court or Tribunal which made the decision.

Take note that the appeal is listed for Directions Hearing before a judge of the National Court at ...............(Courthouse) at ..............a.m./p.m. on the day of ...................20 ..........

You are required to attend at the Directions Hearing to assist the judge deal with the matters listed below.

At the Directions Hearing, the judge will consider, amongst other things, the following:

(b) Failure to comply with any condition precedent to the right of appeal prescribed by statute.

(c) Dispensation or waiver of any condition precedent to the right of appeal prescribed by statute.

(f) Availability of Court or Tribunal depositions including reasons for decision or report.

(h) Manner of presentation of arguments including filing of extract of arguments.

PRE-HEARING CONFERENCE FORM
(to be completed by Judge’s Associate after completion of Pre-trial conference)

11. Application for fresh evidence to be made at the hearing and nature of evidence proposed to be led:

.................................................
(Judge’s Associate’s name & signature

Copy to: Messrs: ____________________
(Name of Respondent or his/her lawyer & address)

I refer to the above matter and advise that this matter is listed for summary determination before the National Court at _________ (name of Courthouse) at _____a.m/p.m on the ______day of __________ 20___.

You are required to attend Court on the date and time fixed above and to show cause why your appeal should not be summarily dismissed for the reason(s) stated above.

If you wish to give an explanation before appearing in Court, you may do so by letter addressed to the Registrar within 30 days from the date of this letter.

Papua New Guinea Court Rules

National Court Appeal Rules 2005