An appeal that is filed and then left alone does not simply wait its turn. The Rules, the Listings Rules and a long line of cases treat delay by the appellant as a reason to end the appeal, because the respondent is entitled to the fruits of the judgment and litigation must finish.
The rule
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; 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.
Rule 49 lets the Court act on its own initiative or on the Registrar’s referral; Rule 50 lets a respondent apply in Form 11; Rule 51 applies the rule to leave applications and reviews through Order 11 Rule 28. The rule was Order 7 Rule 53 under the 1984 Rules, which is the number the older cases use.
What counts as want of prosecution
| Default | Rule |
|---|---|
| Not filing and serving the draft index of the appeal book, or not attending the settlement appointment | O 7 rr 40–42 |
| Not obtaining and correcting the transcript | O 7 rr 37–39 |
| Not filing the appeal book after settlement, or not certifying it | O 7 rr 43–47 |
| Not entering an appearance, not attending call overs or directions hearings | O 13 rr 7–8, 16(1)(a) |
| Not complying with a direction, or not filing submissions or the extract of argument | O 11 rr 9, 12–18 |
| Not taking any step for a long period without explanation | O 7 r 48; O 13 r 16(1)(c) |
How the Court decides
The Court held that the power to dismiss remains discretionary and is exercised having regard to all the circumstances, including the length of and reasons for the appellant’s delay, the extent to which delay may cause evidence to lose its cogency, the availability of a transcript, and any negotiations between the parties: Burns Philp (NG) Ltd v George [1983] PNGLR 55.
The power is exercised where the appellant has not prosecuted the appeal with due diligence, having regard to the public interest in finalising litigation. Failure to attend settlement of the appeal book, to explain non-attendance, to answer correspondence, and to offer any explanation where one could be expected all point to want of diligence. And the Court will not exercise the discretion in the appellant’s favour where no explanation is offered: General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331.
In Kakaraya v Somare (2004) SC762 the Court framed the enquiry as three questions: has the appellant failed to do something the Act or Rules require; has the appeal been prosecuted with due diligence; and has the appellant given an adequate explanation. Donigi v PNGBC (2001) SC691 and Kalinoe v Paraka (2007) SC874 apply the same approach to delay with the index and the appeal book.
Answering a Form 11 application
The application is served with an affidavit setting out the history. The appellant must answer with an affidavit that explains each period of delay, shows what has been done since, and, ideally, exhibits a filed appeal book or a fixed settlement date. Blaming a former lawyer helps only if the appellant acted promptly once the problem was known. The Court also weighs the merits: an appeal with obviously arguable grounds is less readily dismissed, but merit does not excuse inactivity. Costs of the application usually follow the event. See the Order 7 Rule 50 application and summary determination under Order 13.
The peremptory order
Rule 48(b) lets the Court set a final date and order that the appeal “shall stand dismissed” if it is missed. An appeal dismissed this way ends without a further hearing; the Registrar enters the order and sends it to the National Court under Order 13 Rule 16(2)(f). Treat a peremptory date as the last one.
Can a dismissed appeal be revived?
A dismissal for want of prosecution is a final order of the Supreme Court, and Constitution section 155(2) leaves nowhere to appeal. Order 11 Rule 32 allows an application within 21 days after disposal, which the Court has used to set aside dismissals entered in a party’s absence where there is a proper explanation, and the slip rule where an order does not reflect what was decided. Beyond that the only route is the Court’s inherent power under section 155(4), which is exercised rarely. See whether the Supreme Court can reopen its own decision and missing a deadline in the Supreme Court.
Sources
- Supreme Court Rules 2012 — O 7 rr 37–51; O 11 rr 9, 12–18, 28, 32; O 13 r 16; Form 11
- Burns Philp (NG) Ltd v George [1983] PNGLR 55
- General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331
- Kakaraya v Somare (2004) SC762
- Donigi v Papua New Guinea Banking Corporation (2001) SC691
- Kalinoe v Paraka (2007) SC874
- Constitution — s 155(2), (4)
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.