Between the filing of an appeal book and the hearing of the appeal sits a piece of case management that the Supreme Court Rules 2012 introduced with Order 13, the Listings Rules. The directions hearing is where the Court decides whether an appeal is actually ready.
Where it comes from
There shall be a Directions List prepared after the call over which shall contain all matters that are ready for hearing as determined by the Registrar. (a) A Directions Hearing shall be conducted by the Duty Judge on the first Monday of the circuit month. (b) Notice of the Directions Hearing shall be given by the Registrar, in Form 10A or in the manner determined by him, immediately after the Call over. (c) Where parties are represented by a lawyer, a lawyer who has carriage or knowledge of the matter must attend.
The sequence matters. A matter is filed and goes on the General List (Rule 6). Once the appeal book is filed it moves to the Call Over List (Rule 7), which the Registrar calls on the second Tuesday of each month. Matters the Registrar finds ready go to the Directions List, and the Duty Judge deals with that list on the first Monday of the following circuit month. See the call over list and who the Duty Judge is.
What the Judge checks
Rule 8(d) lists eleven matters the Duty Judge may review and give directions on. Form 10A, the notice the Registrar sends, repeats the list so that the parties come prepared.
| Rule 8(d) | What the Judge wants to know |
|---|---|
| (i) Legal representation | Who acts for each party, and whether an unrepresented party needs the Public Solicitor or time to instruct a lawyer |
| (ii) Grounds of appeal | Whether the grounds in the notice are the grounds to be argued, and whether any will be abandoned or need a supplementary notice |
| (iii) Issues on appeal | The questions the Court will actually have to decide, distilled from the grounds |
| (iv) Depositions and reasons | Whether the National Court file and the primary judge’s written reasons are available |
| (v) Transcript | Whether a typed transcript has been requested, paid for and produced |
| (vi) Index and certification | Whether the index to the appeal book has been filed and certified |
| (vii) Contents of the book | Any dispute about what should be in or out of the book |
| (viii) Submissions | When written submissions and the extract of argument under Order 11 Divisions 9 and 10 will be filed |
| (ix) and (x) Readiness and dates | Whether further directions are needed or hearing dates can be allocated now |
| (xi) Other directions | Directions under Order 11 Rule 9 where the Rules are silent, or under section 185 of the Constitution |
Two possible outcomes
Upon fixing a date for the hearing of a matter: (i) the Registrar shall add the matter to a draft Hearing List and issue to all parties a Notice of Hearing in Form 18, which notice shall be taken out by the appellant’s or applicant’s lawyer and served on the other parties immediately after the Directions Hearing; (ii) the Duty Judge shall refer the matter to the Status Conference.
So a matter that is ready leaves the directions hearing with a hearing date, a Form 18 notice to serve, and a place at the Status Conference held on the Monday before the sittings, where compliance with the directions is confirmed. See the status conference. A matter that is not ready leaves with directions and a date to return. Rule 9 lets the Duty Judge hold further directions hearings during the circuit month, and matters fixed at those are added to the draft Hearing List.
Who must attend
Rule 8(c) is directed at a common problem: a junior sent to “hold” a matter who cannot answer any of the Rule 8(d) questions. The lawyer attending must be able to say whether the transcript has been ordered, what grounds will be pressed and how long the hearing will take. An unrepresented party attends in person. Rule 13(1) provides that a directions hearing shall not be adjourned generally, even by consent; it may be adjourned only to a fixed date with the Duty Judge’s approval.
Non-attendance has consequences. Rule 10(2)(c) allows the Status Conference to refer a non-compliant matter to summary determination, and Rule 12(5) allows the Court at the hearing to determine summarily a matter where the appellant has not complied with directions. An appellant who misses the directions hearing and then the directions is on a short path to summary determination.
How to prepare
Bring the file and the answers: confirmation that the transcript is ready or a date for it, the certified index, the appeal book if lodged, a realistic hearing estimate and a proposed timetable for submissions. Where a respondent intends to object to competency, the directions hearing is the place to say so, because Rule 8(d)(ix) and Form 10A item (i) ask whether applications and objections need further directions or can be given hearing dates. See objections to competency.
Election petition reviews
Election petition reviews have their own directions hearing under Order 5 Rules 27 and 28, held within 14 days of filing the application to review, followed by a pre-hearing conference within 21 days under Rules 33 and 34. The checklist is similar, and Form 5B carries the appointment. See what happens after leave in an election petition review.
Why the Court does this
The Listings Rules front-load scrutiny onto the Duty Judge so that the three-Judge bench, the scarce resource, hears only matters that are ready. The general scheme is explained in what the Supreme Court Listings Rules are, and setting down in how an appeal is set down.
Sources
- Supreme Court Rules 2012 — O 13 rr 6–13; O 5 rr 27–28, 33–34; O 11 r 9; Forms 10A, 18
- Constitution — s 185
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.