Failing to prepare the appeal book is the commonest way a Supreme Court appeal is lost without a word being said about the merits. Order 7 Division 19 is the mechanism.
Order 7 Rule 48
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 or a Judge may —
(a) order that the appeal be dismissed for want of prosecution; or
(b) fix a time peremptorily for the doing of the act and at the same time order that upon non-compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non-compliance, order that it be so dismissed; or
(c) make any other order that may seem just.
“Not done any act required to be done by or under these rules” covers a long list in the appeal-book process alone: not obtaining the appointment (Rule 33), not serving notice of it (Rule 34), not obtaining the reasons or certified notes (Rule 36), not correcting the transcript (Rule 38), not filing or serving the draft index (Rules 40 and 41), not lodging and serving the book (Rule 44).
The second is evaluative: whether the appeal has been prosecuted with due diligence, judged on all the circumstances.
Rules 49 and 50
Rule 49 — the respondent may make application for an order under Rule 48, and the Court or a Judge may, after notice has been given to the appellant by the Registrar, make orders on reference from the Registrar.
Rule 50 — an application for an order under Rule 48 shall (a) be in accordance with Form 11; and (b) be supported by affidavit.
Form 11, not a notice of motion. The reasoning in Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082 — that an application made by notice of motion where the Rules prescribe a form is incompetent and may be struck down — applies with equal force where a form is expressly prescribed.
The Court can act without a respondent. Rule 49 lets the Registrar refer the matter after giving notice to the appellant. An appeal that goes quiet is not safe merely because the other side has lost interest.
Rule 48(b)
A peremptory order fixes a date and provides that upon non-compliance the appeal shall stand dismissed. No further hearing is needed; the appeal ends by operation of the order.
It is often the order a Court prefers, because it gives the appellant a final opportunity while ensuring the matter does not drift further.
An order under Rule 48(b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.
Before the date: variation at large, on the ordinary discretion.
After the date: only in special circumstances.
That difference is the whole reason to apply before the deadline rather than after it. An appellant who lets a peremptory date pass has moved from a discretionary application to an exceptional one.
What an appellant should put on
1. A chronology. Every step taken and every date. Where transcript or exhibits were awaited, when they were requested and what the registry said.
2. An explanation for each period of delay. Not a general apology — account for the gaps.
3. Evidence that the appeal has substance. The Court is more reluctant to end an arguable appeal on procedure than a hopeless one.
4. Evidence of present readiness. The draft index prepared, the copying arranged, a date by which the book will be lodged.
5. An answer on prejudice. Whether the delay has actually harmed the respondent.
And ask, in the alternative, for an order under Rule 48(b) or (c) rather than (a). Offering a workable peremptory date is often what saves the appeal.
Making the application
Warn first. A letter identifying the steps not taken and giving a short period to comply strengthens the application and may make it unnecessary.
Use Form 11 and an affidavit. Rule 50 requires both. The affidavit should exhibit the chronology and the correspondence.
Consider asking for a peremptory order. Rule 48(b) is easier to obtain than outright dismissal, and it produces dismissal automatically if the appellant does not comply.
Deal with costs. Order 12 Rule 24 treats the costs of a step as part of the costs of the party in whose favour it is determined.
What is left
Dismissal ends the appeal; the National Court judgment stands and any stay falls away. Rule 51 offers variation or revocation in special circumstances where the dismissal took effect under a peremptory order.
Otherwise the only route is an application for review under section 155(2)(b) of the Constitution — the jurisdiction 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, exceptional, and an unpromising vehicle for a delay of the appellant’s own making.
Sources
- Supreme Court Rules 2012 — O 7 rr 33–44, 47–51; O 12 r 24; O 13 rr 7, 8; Form 11
- Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082
- 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.