Litigants in difficulty often ask the Court to overlook a failure to comply with the Rules. There is a waiver power, but it is much narrower than most people expect.
The waiver power
Where compliance with the provisions of these rules relating to the preparation of documents or appeal books for the court may cause unnecessary hardship, expense or delay, the Registrar may, after consultation with the Chief Justice, or if he is not available, the next most senior Judge in Chambers, waive compliance to such extent as in his opinion is reasonable.
— Supreme Court Rules 2012, O 11 r 10
Subject matter. It reaches only the rules about preparing documents or appeal books. Order 7 Divisions 11 to 17 — the appointment to settle, collection of papers, draft index, settlement, the appeal book itself, lodgement and costs — are the target.
Threshold. Compliance must cause unnecessary hardship, expense or delay. Ordinary inconvenience is not enough.
Decision-maker. It is the Registrar, not the Court, and only after consultation with the Chief Justice or the next most senior Judge in Chambers.
Extent. Waiver is only to such extent as in his opinion is reasonable — a partial dispensation, tailored to the difficulty.
Making the request
An application under Rule 10 is made to the Registry, not by motion to the Court. In practice it is raised at or before the appointment to settle the appeal book, which is when the scope and cost of the book are determined.
Explain what compliance would require, why it is unnecessary in this case, and what you propose instead. A request that simply asks to be excused, without a workable alternative, gives the Registrar nothing to approve.
At settlement under Order 7 Rule 42, the Registrar determines what documents and matters shall be included in the appeal book, the order of inclusion, and the number of copies required — and may obtain the direction of the primary Judge.
Order 7 Rule 43(12) is to the same effect: only such documents as are relevant or necessary shall be included. And Rule 46: the costs of copies of unnecessary documents, or of documents copied at unnecessary length, shall not be allowed.
So much of what a party might seek by waiver can be achieved by arguing, at settlement, that the material is not relevant or necessary. See what goes into the appeal book.
The related forgiveness in Order 1
It shall be sufficient compliance with any requirement of an Act or these Rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variations as the nature of the case requires.
Rule 8(a)(ii) operates automatically — no application is needed. A document that departs in a minor way from the printed form is still good.
But it is about form, not substance, and not about using the wrong document. See which form to use.
Time limits cannot be waived
Nothing in Order 11 Rule 10 or Order 1 Rule 8 touches the 40-day period in sections 17 and 29 of the Supreme Court Act.
That period may be extended — but only by a Judge, on application made within the 40 days. Once it has run without such an application, it is gone.
In Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 the Court held that the statutory time limit validly regulates the right to review of conviction and sentence “according to law” guaranteed by Constitution section 37(15); that the right to appeal is lost on failure to comply; and that section 155(4), which confers an inherent jurisdiction to make such orders as are necessary to do justice, does not empower the Court to waive non-compliance.
Greville Smith and Kapi JJ dissented on that last point.
The majority in Avia Aihi held that section 155(2)(b) — the inherent power to review all judicial acts of the National Court — invests the Supreme Court with an unfettered discretionary jurisdiction to hear a matter although the applicant has lost the right to appeal.
That discretion is to be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, and the onus is on the applicant.
So the answer to a missed deadline is not waiver. It is a section 155(2)(b) review, on a demanding test. See also missing the appeal deadline.
What to do instead of asking for indulgence
- Apply within time for an extension if you cannot meet the deadline. Order 7 Rule 1 requires the Form 4 application to be filed and served within the 40 days.
- Raise appeal book difficulties at settlement, where the Registrar has ample power to limit what is included.
- Use Order 11 Rule 9 and ask a Judge for directions where the Rules do not prescribe a procedure.
- Do not rely on section 155(4) to cure a failure to comply with a statutory requirement. Avia Aihi closes that route.
Sources
- Supreme Court Rules 2012 — O 1 r 8; O 7 rr 1, 42, 43, 46; O 11 rr 9, 10
- Supreme Court Act (Chapter 37) — ss 17, 29
- Constitution — ss 37(15), 155(2)(b), 155(4)
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81
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.