An order for security is one of the few interlocutory orders in an appeal that carries dismissal as an express statutory consequence. It should be treated accordingly.
Section 5(1)(d)
Where an appeal is pending before the Supreme Court, an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security may be made by a Judge.
Section 5(2): the order shall be deemed to be a direction or order of the Supreme Court.
Section 5(3): it may be discharged or varied by the Supreme Court.
Both section 5(1)(c) and 5(1)(d) are limited to proceedings other than criminal proceedings. Security cannot be ordered against a criminal appellant, and so no question of dismissal for default arises.
Dismissal requires an order
Section 5(1)(d) speaks of an order dismissing the appeal. Unlike Order 7 Rule 20, where an appeal shall be abandoned on the filing of a notice of discontinuance, nothing happens automatically on the day security is not paid.
So a respondent must apply, in Form 4 under Order 13 Rule 15 of the Supreme Court Rules 2012, stating the jurisdiction relied on and the grounds.
And the Judge retains a discretion. Late compliance, a substantial explanation, or part payment may result in an extension rather than dismissal — but none of that is guaranteed.
A second route to the same result
Where an appellant has not done any act required to be done by or under these rules, or otherwise has not prosecuted his appeal with due diligence, the Court may —
(a) order that the appeal be dismissed for want of prosecution;
(b) fix a time peremptorily for the doing of the act and order that upon non-compliance the appeal shall stand dismissed, or so order subsequently on non-compliance;
(c) make such other order as may seem just.
A peremptory order — “unless security in the sum of K20,000 is paid into Court by 4pm on the 30th, the appeal shall stand dismissed” — produces dismissal without any further hearing.
Once such an order is made, the only protection is compliance. An application to vary must be made before the date, not after it. See dismissal for want of prosecution.
What to do if you cannot pay
1. Apply to extend the time, before it expires. An application made on day 25 of a 30-day order is a different proposition from one made in answer to a dismissal application two months later.
2. Put on evidence of what you have done. Approaches to lenders, sale of an asset, funds expected on a date. Bare assertion of inability carries little weight.
3. Offer what you can. Part payment, instalments, or security in another form — a bank guarantee, a charge over identified property. A Judge who is being offered something realistic is more likely to extend than one being asked simply to wait.
4. Consider whether the amount should be varied. Under section 5(3) an order made by a Judge may be discharged or varied by the Supreme Court, and where the appeal has narrowed — grounds abandoned, a shorter appeal book — the figure may no longer be justified.
If the appeal is dismissed
Dismissal for default in security ends the appeal. Any stay granted pending the appeal falls away, and the respondent may enforce the National Court judgment.
Costs will ordinarily follow. Order 12 applies to the costs of the appeal, and the respondent may tax and enforce them.
Section 5(3) — an order made by a single Judge may be discharged or varied by the Supreme Court. Where the dismissal was made by a Judge under section 5(1)(d), that is the natural route, and it should be taken promptly with evidence explaining the default and demonstrating present ability to comply.
Section 155(2)(b) review under the Constitution, for a person who has lost the right of appeal — the jurisdiction recognised in Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81. It is discretionary and exceptional, and a self-inflicted default is not promising material.
Enforcing the order
An appellant in default is not prosecuting the appeal, and every week that passes adds to the respondent’s costs — the very costs the security was meant to protect.
Apply promptly, in Form 4, relying on section 5(1)(d) and, in the alternative, Order 7 Rule 48. Asking for a peremptory order under Rule 48(b) rather than immediate dismissal is often the more attractive application: it gives the appellant a last opportunity, which is hard to resist, and produces dismissal automatically if it is not taken.
Paying something is better than paying nothing
An appellant who has paid K12,000 of a K20,000 order is asking for time. An appellant who has paid nothing is asking to be excused. Judges treat those differently, and Order 7 Rule 48(c) — such other order as may seem just — gives ample room for an order extending time on terms.
Where funds are genuinely coming, pay what you have, exhibit the evidence of the balance, and propose a date. Where they are not, consider whether the appeal should be discontinued before further costs are incurred on both sides — a discontinuance under Rule 20 at least limits the respondent’s costs to those already occasioned.
Sources
- Supreme Court Rules 2012 — O 7 rr 20, 24, 48–51; O 12; O 13 r 15; Form 4
- Supreme Court Act (Chapter 37) — ss 5, 19
- 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.