Almost everything sought from the Supreme Court short of the appeal itself is sought by application: leave, time, a stay, security, directions, dismissal, bail. The Rules prescribe one form for all of them and, since the Listings Rules, one extra sentence that is routinely left out.
The form
Application will be made to a Judge of the Supreme Court, Waigani at .... am on the .... day of .... 20..... 1. FOR (state nature of application). 2. GROUNDS (specify each particular ground by paragraph). 3. Affidavits in support of this Application sworn by (list names, dates). Dated. Signed (Applicant or his Lawyer). FILED BY: (Form 17).
All applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. With the exception of urgent applications, all other applications for interlocutory orders shall be made to the Duty Judge on a scheduled motions day. All applications shall be made in Form 4.
The jurisdiction statement is the sentence most often missing. It identifies the section or rule that empowers the order: section 5(1)(b) for an interim order, section 10(1)(b) for an extension of time, section 18 for security for costs, Order 7 Rule 48 for dismissal, Order 11 Rule 9 for directions. Without it the application can be refused, because the Duty Judge must be satisfied that a single Judge has jurisdiction. Form 4 is on the Supreme Court Forms page.
Common applications and where they go
| Application | Power | Heard by |
|---|---|---|
| Leave to appeal | Act s 10(1)(a); O 7 rr 3–4 (Form 7, not Form 4) | Single Judge |
| Extension of time to appeal | Act ss 10(1)(b), 17; O 7 rr 1–2 | Single Judge, on application within the 40 days |
| Stay or interim order | Act ss 5(1)(b), 19; O 13 r 14 | Duty Judge; full Court may vary under s 5(3) |
| Security for costs | Act ss 5(1)(c), 18; O 7 Div 7 | Single Judge |
| Bail pending appeal | Act ss 5(1)(e), 10(1)(c) | Single Judge |
| Dismissal for want of prosecution | O 7 rr 48–50 (Form 11) | The Court; Registrar may refer |
| Objection to competency | O 7 rr 15–17 (Form 9) | A Judge where within jurisdiction, otherwise the Court |
| Directions where the Rules are silent | O 11 r 9 | A Judge |
| Adding a party or amending | O 11 r 11 | Court or Judge |
| Slip rule or other application after judgment | O 11 r 32 | The Court, with a Judge’s leave for a slip rule application |
Evidence
Applications are decided on affidavit. Form 4 item 3 requires the affidavits to be listed by deponent and date, and Order 13 Rule 14(6) makes supporting affidavits a precondition to an urgent hearing being set down. The affidavit should exhibit the judgment and any relevant order, and depose to the facts that satisfy the test: for a stay, the prejudice; for an extension, the delay and the merits; for security, the respondent’s means. See what affidavits you need.
Filing and service
The application is filed in the Registry at Waigani with the Form 17 address for service. Service is under Order 11 Rule 7: personally, or by delivering a signed and sealed copy to the address for service, including a lawyer’s document exchange box under Rule 4(a)(iv). An application in a pending appeal is served on every party who has filed an appearance. Rule 14 treats service as the norm and requires an ex parte applicant to justify dispensing with it. See how documents are served.
The hearing
The Duty Judge hears applications on the scheduled motions day for the month, published by the Registry. The applicant moves the application, takes the Judge to the affidavit and the jurisdiction relied on, and asks for the orders in the draft. The respondent replies. An order made by a single Judge under section 5 is deemed an order of the Court under section 5(2) and can be discharged or varied by the Court under section 5(3); a refusal of leave, time or bail can be renewed before the Court under section 10(2). See asking the full Court to reconsider.
Applications to the full Court
Some applications cannot be heard by one Judge: dismissal of an appeal on the merits, an objection to competency going to the Court’s jurisdiction, further evidence on appeal under Order 7 Division 20 (which Rule 54 requires to be made at the hearing of the appeal), and any application after judgment under Order 11 Rule 32. These are filed in Form 4 in the same way but listed for the sittings, usually with the appeal itself. Rule 12(6) of Order 13 permits an application to dismiss for non-compliance with directions to be heard at the hearing on one clear working day’s notice.
Applications after judgment
(1) An application of any nature made after disposal of a proceeding shall be filed and served in writing within 21 days of the order disposing of the proceeding. (2) A slip rule application shall set out the nature of the slip and the finding the applicant contends the Court should have made. (3) A slip rule application shall not be listed unless a Judge of the Court making the order, or that Court, has granted leave.
See whether the Supreme Court can correct its own judgment. Urgent applications are dealt with in making an urgent application.
Sources
- Supreme Court Rules 2012 — O 7 rr 1–4, 15–17, 48–50, 54; O 11 rr 4, 7, 9, 11, 32; O 13 rr 12, 14, 15; Forms 4, 7, 9, 11, 17
- Supreme Court Act (Chapter 37) — ss 5, 10, 17, 18, 19
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.