ORDER 18.-APPEAL RULES.

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

Purpose.

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 Courts 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 Courts 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.

1. Appeals List.

The Registrar shall maintain an Appeals 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.

2. File Reference.

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.

3. Judge.

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.

4. Senior Clerk.

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.

5. Directions Hearing.

(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: -

(a) Question of legal representation.

(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.

(d) The grounds of appeal.

(e) The issues on appeal.

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

(g) Typing of transcript of the proceeding.

(h) Compilation of the Appeal Book.

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

(j) The filing of fresh affidavit evidence, if any, by leave of the Court.

(k) Length of hearing time.

(l) Fix a date for a Pre-hearing Conference to take place within 30 days.

6. Appeal Book.

(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.

(3) Transcripts of District 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.

Dated the . . . day of . . . 20 . . .

. . . (Clerk)

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.

(4) Transcripts -Other Courts, Executive Bodies and Tribunals

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.

Dated this . . . day of . . . 20 . . .

. . .

Appropriate officer of Authority or Tribunal.

(5) Appeal Book

1. The Appeal Book shall contain the following information:

i. Title page.

ii. Index.

iii. Notice of Appeal.

iv. Any Amended Notice of Appeal.

v. A summary of the argument of the Appellant.

vi. A summary of the response by the Respondent.

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.

7. Pre-Hearing Conference.

(1) 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.

(b) Confirm the correctness of the Appeal Book.

(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.

(d) Length of hearing time.

(e) Filing of extract of submissions.

(f) Fix a date for the hearing of the substantive appeal.

(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 Courts Act.

8. Pre-hearing Form.

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.

9. Status Conference.

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.

10. The 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.

11. Adjournments.

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.

12. Other matters.

(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.

(2) Motions.

(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.

(3) Urgent Applications.

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.

(4) Summary Disposal.

(a) The Court may summarily determine an appeal:

(i) on application by a party; or

(ii) on the Court's own initiative; or

(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.

(vii) The file is closed and forwarded to Archives for storage.

13. Relief from compliance with the Rules.

The judge may dispense with the requirements of these Rules.

14. Commencement of these Rules.

These Rules shall commence operation on the date they are signed by the Judges.

Division 2.-Taxation Appeals.

14A. Interpretation of Division 2.

In this Division a reference to the Act shall mean the Income Tax Act 1959 (Adopted) and the terms Commissioner General of Internal Revenue, objection, reference, Review Tribunal and taxpayer shall have the same meaning as in that Act.

15. Appeals from disallowance of objection.

When the Commissioner General of Internal Revenue has been requested under the Act to forward an objection to the Court he shall -

(a) forward the notice of the objection to the Court within the time prescribed by law, or if no time has been so prescribed, then within 30 days after the date of the receipt by him of the request, or within such further time as is agreed between him and the taxpayer; and

(b) within seven days after the date on which he has forwarded or referred the notice of objection-give to the taxpayer written notice that the objection has been forwarded.

16. Documents to accompany notice of objection.

(1) The Commissioner General of Internal Revenue shall also forward, together with the notice of objection, to the proper officer of the Court-

(a) the assessment in respect of which the objection was made (including any amendment of the assessment); and

(b) the notice of the disallowance of the objection; and

(c) the request for the forwarding or reference of the objection to the Court; and

(d) any other documents in his possession or power which are necessary for the hearing of the appeal.

(2) If a dispute arises concerning the documents to be forwarded or as to their genuineness or the correctness of a copy of the documents, the Court may, on application made by a party to the appeal by motion, make such order as it thinks fit with respect to the dispute.

17. Setting down appeal for hearing.

(1) The taxpayer shall, within 14 days after the receipt by him of a notice that his objection has been forwarded, set down the appeal for hearing at the next available sittings of the Court appointed for the hearing of such appeals.

(2) The taxpayer shall give to the Commissioner General of Internal Revenue notice of the setting down at least 14 days before the day for which the appeal has been set down.

18. Appeals from the Review Tribunal.

An appeal to the Court from a decision of the Review Tribunal shall be instituted by a notice of appeal.

19. Notice of appeal.

(1) The notice of appeal shall -

(a) be signed by the appellant or by his solicitor; and

(b) be entitled In the National Court of Justice; and

(c) state -

(i) the decision of the Review Tribunal from which the appeal\ is brought; and

(ii) whether the appeal is from the whole or part only, and if so what part, of the decision; and

(iii) the question or questions of law involved in the decision; and

(iv) concisely the grounds of the appeal.

(2) On the hearing of the appeal, the appellant shall be limited to the grounds stated in the notice of appeal unless the Court allows an amendment of the notice of appeal.

(3) The notice of appeal may be amended by leave of the Court at the hearing on such terms as the Court thinks fit.

20. Procedure by appellant.

(1) Within 30 days after the Review Tribunal's decision the party desiring to appeal from the decision shall -

(a) file the notice of appeal in the Registry at the place where it is desired that the appeal be heard; and

(b) serve a copy of the notice of appeal on the opposite party; and

(c) serve a copy of the notice of appeal on the Review Tribunal.

(2) Service of a copy of a notice of appeal under this Rule may be effected by sending the copy in a pre-paid letter through the post properly addressed to the person to be served at his usual or last known place of residence or business, or, in the case of the Review Tribunal, at its proper office.

(3) A copy of a notice of appeal served by post under Sub-rule (2) shall be deemed to have been served at the time when the letter containing it would be delivered in the ordinary course of post.

21. Procedure by Review Tribunal.

(1) Within 14 days from the service of the copy of a notice of appeal on the Review Tribunal, the Review Tribunal shall cause to be forwarded to the Registrar -

(a) a copy of its assessment, determination or decision; and

(b) a copy of any statement made by the Review Tribunal of its findings of fact and its reasons in law for its decision; and

(c) a copy of the assessment or notice of assessment (including any amendment of the assessment or notices) the subject matter of the proceedings before the Review Tribunal; and

(d) a copy of any notice of objection, so far as relevant; and

(e) a copy of any decision on the objection; and

(f) a copy of the request for the forwarding or reference of the objection or decision to the Review Tribunal; and

(g) a copy of the document forwarding or referring the objection or decision to the Review Tribunal; and

(h) a copy of any other document necessary for hearing the appeal which is in the possession or power of the Review Tribunal.

(2) If a dispute arises concerning a document forwarded, or to be forwarded, under Sub-rule (1), or as to the genuineness of such a document or the correctness of a copy, the Court may, on application made by a party to the appeal, make such order as it thinks fit with respect to the dispute.

(3) Not later than the expiration of seven clear days after the date on which any documents have been forwarded under this Rule to the Registry in which the appeal is pending, the person who forwarded the documents shall cause to be served on every party to the appeal a notice of the date on which the documents were forwarded.

22. Setting of appeal.

(1) The appeal shall be set down by the appellant for hearing at the first sittings of the Court, appointed to commence after the notice of appeal has been filed.

(2) The appellant shall give the respondent 14 days' notice of the date of the sittings for which the appeal has been set down to be heard.

23. References of questions of law.

Where the Review Tribunal has been requested, pursuant to the Act, to refer a question of law arising before the Review Tribunal to the Court, the Review Tribunal shall, within 14 days of the request cause to be forwarded to the Registrar a statement of the question of law arising together with copies of all documents relevant to the question of law and shall, at the same time give notice to the parties of compliance with this Rule.

24. Hearing of questions of law.

Within 14 days of receipt of the notice referred to in Rule 23 the party requesting the reference of the question of law shall -

(a) enter the matter for hearing at the first sittings of the Court appointed to commence after the expiration of 28 days from the entry for hearing; and

(b) give to the other party 14 days notice of the date of the sittings for which the matter has been entered for hearing.