No set of rules anticipates everything. The Supreme Court Rules 2012 acknowledge this directly, and give a short answer.
The provision
Where a person desires to take any step in proceedings under these rules and the manner or form of the procedure is not prescribed, the person may apply to a Judge for directions.
— Supreme Court Rules 2012, O 11 r 9
It is a Judge, not the Court. A single Judge gives the directions — consistent with section 5(1)(a) of the Act, which allows a Judge to give a direction not involving the decision on the appeal.
It covers manner as well as form. Not just which document to file, but how the step is to be taken.
It applies to proceedings under these Rules generally — Order 11 Rule 1 makes Part 4 applicable to all matters brought under the Rules unless a contrary intention appears. So it reaches references and reviews as well as appeals.
The risk of doing something else
The temptation, when the Rules are silent, is to file a notice of motion — the familiar National Court instrument. In the Supreme Court that can be fatal.
In Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082 the Court considered exactly this gap: there is no express provision in the Supreme Court Act or the Rules as to the manner of applying for a stay. It held that the proper manner is by an application using Form 4, and that an application by notice of motion would be incompetent and may be struck down.
The Court filled the gap by analogy with an existing form. A litigant who guesses may guess differently — and lose the application without a hearing on its merits.
- Check whether the Rules really are silent. Order 7 covers appeals in great detail across 23 Divisions; Order 11 covers appearance, address for service, service, submissions, adding parties and withdrawal. The gap is often narrower than it first appears.
- Check the Supreme Court Act. Sections 5, 8 and 10 confer powers that may already answer the question.
- Look for the closest prescribed analogue, as the Court did in Kawaso.
- If still unclear, apply under Order 11 Rule 9 for directions — before taking the step, not after.
The Act’s own gap-filler
For the purposes of this Act, the Supreme Court may, if it thinks it necessary or expedient in the interests of justice to do so — exercise in relation to the proceedings of the Court any other powers that may for the time being be exercised by the National Court on appeals or applications.
Section 8(1)(e) is how the Supreme Court acquired a costs jurisdiction. There is no Supreme Court equivalent of Order 22 of the National Court Rules, and the power to award costs must be conferred by statute — it is not inherent.
In Moses v Magiten [2006] PGSC 25; SC875 the Court held that section 6(2) gives it all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court; that section 8(1)(e) allows it to exercise any other power the National Court may exercise; that the combined effect is that whatever the National Court can do regarding costs, the Supreme Court can do; and that it is appropriate to draw on Order 22 as a guide.
Where compliance would cause hardship
Where compliance with the provisions of these rules relating to the preparation of documents or appeal books 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.
Rule 10 is confined to the rules about preparing documents and appeal books. It is not a general dispensing power, and it will not excuse a missed time limit or a defective notice of appeal.
The decision is the Registrar’s, after consulting the Chief Justice. A party seeking a waiver approaches the Registry, not the Court. See waiver of the Rules and the appeal book.
The limits of all of this
Directions under Order 11 Rule 9, waiver under Rule 10, and the supplemental powers in section 8 all operate within the statutory framework. They do not enlarge it.
In Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 the Court held that the time limit for appealing validly regulates the constitutional right of review according to law, that the right to appeal is lost on failure to comply, and that Constitution section 155(4) does not empower the Court to waive non-compliance.
What section 155(2)(b) does provide is a separate review jurisdiction — discretionary, and available only in exceptional circumstances.
Sources
- Supreme Court Rules 2012 — O 11 rr 1, 9, 10
- Supreme Court Act (Chapter 37) — ss 5, 6, 8
- Constitution — s 155
- Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082
- Moses v Magiten [2006] PGSC 25; SC875
- 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.