An objection is not a judgment. It is an allegation the respondent must make good, and a good many objections fail — either because the point is wrong or because the appellant fixes the problem before it is heard.
Three things to do at once
1. Identify exactly what is said to be wrong. Which grounds, and on what basis. The Form 9 must state the grounds of the objection; if it does not, that itself is worth saying.
2. Ask whether it is curable. Most Rule 9 and Rule 10 defects are. Missing leave, and an appeal from a judgment from which no appeal lies, are not.
3. Check where you are in the 40 days. Several cures close when the period expires.
Hold the objector to Rule 18
The burden of establishing that the appeal or application is incompetent lies on the party making the objection.
Where the objection is that a ground raises a question of fact alone, it is for the respondent to show that it does — not for the appellant to show that it does not.
Where the objection is that the judgment was interlocutory, it is for the respondent to establish that characterisation.
Where the objection is that the order was made by consent, it is for the respondent to prove it.
Order 7 Rule 16
Any party may file affidavits in support of, or in opposition to, the objection.
Use them where the objection depends on a fact: when the judgment was pronounced; whether a stated consent went only to the form of the order; whether leave was sought. See when time starts.
Cures available
| Defect | Cure |
|---|---|
| Ground not particularised (O 7 r 10) | Supplementary notice under r 25, if before the appointment to settle and within 40 days |
| Notice omits the relief sought (r 9(d)) | Supplementary notice under r 25 |
| Leave order not annexed (r 9(a)) | File and serve the sealed order, and amend under r 25 to annex it |
| Notice unsigned (r 9(f)) | Regularise by supplementary notice; O 1 r 8 |
| No address for service (O 11 r 3) | File Form 17 |
| Not served on a necessary party (r 13) | Serve; or seek a direction or dispensation under r 14 |
| One ground needs leave, others do not | Abandon that ground; the appeal proceeds on the rest |
| Leave required and not sought in time | Not curable — consider a s 155(2)(b) review |
| Filed outside 40 days | Not curable — consider a s 155(2)(b) review |
| Order made by consent, or sentence fixed by law | No appeal lies |
Order 7 Rules 25 and 26
Rule 25 — a notice of appeal may, before the date of the appointment to settle the appeal book under Rule 42, be amended without leave by filing a supplementary notice.
Rule 26 — the addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment, or such further period as has been allowed by a Judge within those 40 days.
Recasting an existing ground so that it complies with Rule 10 is amendment. Introducing a complaint that was not there is the addition of a new ground, and Rule 26 bars it after 40 days.
Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 held a supplementary notice filed outside the 40-day limit to be incompetent. The line between the two is where the argument will be. See supplementary notices.
Rules or Act?
Ask whether the requirement breached comes from the Rules or the Act. A breach of the Act — the section 17 time limit, the requirement of leave under section 14 — cannot be relieved against. A breach of the Rules sometimes can.
The broad power — the Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law — sits in Order 5, which governs reviews of the National Court.
In an appeal the relieving provisions are specific: Order 1 Rule 8 (substantial compliance with a form); Order 7 Rule 14 (directions as to service); Order 7 Rule 25 (supplementary notice); Order 11 Rule 9 (directions where the procedure is not prescribed); and Order 11 Rule 10 (the Registrar's waiver as to appeal books).
Sometimes the answer is to concede
Where one ground of six plainly needed leave, abandoning it before the objection is heard removes the target, protects the other five, and improves the appellant’s position on costs.
Two costs points
Where the objection fails, the appellant should ask for the costs of it. Order 12 gives the Court a general discretion, and an objection is a discrete proceeding.
Where the objection was not filed within 14 days but the point is taken anyway, Rule 19 is available: a respondent who did not give notice of objection and succeeds in having the appeal dismissed as incompetent shall not receive any costs unless the Court orders otherwise on special grounds.
Where the appeal is dismissed
Dismissal for incompetency is not a decision on the merits. Where the failure was procedural and the underlying case has substance, an application for review under Constitution section 155(2)(b) may be open — the jurisdiction recognised in Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 for a person who has lost the right of appeal.
It is discretionary, and requires exceptional circumstances. See section 155(2)(b) reviews.
Sources
- Supreme Court Rules 2012 — O 7 rr 9, 10, 13–19, 25, 26, 42; O 11 rr 3, 9, 10; O 12
- Supreme Court Act (Chapter 37) — ss 14, 17
- Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112
- 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.