A great many Supreme Court appeals are filed and never pursued. The Listings Rules give the Court a machine for clearing them, and a party who ignores its notices will find the appeal gone without a bench ever reading the grounds.
The rule
The Court may summarily determine a matter: (a) on application by a party; or (b) on referral by a Judge; or (c) on the Court’s own initiative; or (d) upon referral by the Registrar in accordance with the procedure set out in sub-rule (2) or pursuant to section 11 of the Act.
Rule 1 defines “Summary Determination” as an application to dismiss a matter. It is the end point of the Listings scheme: the Registrar can move a matter to the summary determination list at the monthly call over under Rule 7(7)(b), the Duty Judge can refer it at a status conference under Rule 10(2)(c), and the bench can deal with it summarily at the hearing under Rule 12(5).
The Registrar’s route: Form 10D
(a) The Registrar shall give notice in Form 10D to each of the parties of his intention to refer the matter to a Judge or the Court for summary determination, fixing a date for hearing not less than 30 days from the day the notice is sent. Where there is no other means of bringing the notice to the attention of the Appellant, the Registrar may publish the notice in the media. (b) The Registrar shall place on the file any written response or a note of a verbal response and advise the Appellant to appear on the date fixed. (c) On the day fixed the Registrar shall forward the file to the Court, together with any response. (d) The Court or a Judge may determine the matter summarily based on the response received and report by the Registrar, and any representation made by the parties; or issue directions for the future conduct of the proceedings. (e) If the parties are unrepresented, the Registrar shall draft the Court Order, enter it and forward sealed copies. (f) If the matter is dismissed the Registrar shall forward a sealed copy of the Order and any judgment to the National Court which made the decision. (g) If the matter is dismissed the file shall be closed and forwarded to Archives.
Form 10D is headed “Notice to show cause why your matter should not be summarily dismissed”. It states the grounds, typically that no appeal book has been filed or directions have not been complied with, and tells the appellant that an explanation may be given by letter or by affidavit filed at least seven days before the date. The form is on the Supreme Court Forms page.
How to respond
Rule 16(2)(d) says the Court decides “based on the response received and report by the Registrar”. A party who does nothing hands the Court a file with only the Registrar’s report on it. The effective response is an affidavit, filed at least seven days before the date, that explains the delay with dates, shows what has been done since the notice, and attaches evidence: the transcript request and receipt, the draft index, correspondence with the respondent about the book. Then appear on the date and ask for directions under paragraph (d) rather than dismissal. The Court has a genuine choice between the two, and a credible plan usually gets directions.
Where the default is the respondent’s, say so with the correspondence.
A respondent’s application
A respondent need not wait for the Registrar. Order 7 Rule 48 allows the Court to dismiss an appeal for want of prosecution where the appellant has not done an act required by the Rules or has not prosecuted the appeal with due diligence, and Rules 49 and 50 provide for the respondent to apply in Form 11 on affidavit. Order 11 Rule 28 applies Division 19 to every kind of proceeding. Rule 12(6) of Order 13 adds a fast route at the hearing: an application in writing on affidavit served one clear working day before. See dismissal for want of prosecution and the Order 7 Rule 50 application.
Section 11: frivolous or vexatious appeals
(1) Where the Registrar is of the opinion that a notice of appeal, or a notice of an application for leave to appeal, does not show any substantial ground of appeal, the Registrar may refer the appeal to the Supreme Court for summary determination. (2) Where the Court is satisfied that the appeal (a) is frivolous or vexatious; and (b) can be determined without a full hearing, it may dismiss the appeal summarily without calling on any person to attend the hearing.
This is a different ground. Rule 16 is about prosecution and compliance; section 11 is about the merits on the face of the notice. It is aimed at notices that plead no error at all, or complain of matters that cannot be grounds of appeal. See what a frivolous or vexatious appeal is.
After dismissal
A summary dismissal is a final order of the Court. Rule 16(2)(f) sends a sealed copy to the National Court so that any stay lapses and the judgment below can be enforced. What remains is an application under Order 11 Rule 32 within 21 days, which for a slip rule application needs leave, and there is no fresh appeal. An appellant who has missed the Form 10D date but has a genuine explanation should move immediately under Rule 32. See what you can do after the appeal is decided.
Sources
- Supreme Court Rules 2012 — O 13 rr 1, 7, 10, 12, 16; O 7 rr 48–51; O 11 rr 28, 32; Forms 10D, 11
- Supreme Court Act (Chapter 37) — s 11
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.