The Supreme Court sits in benches of three or more for fixed sittings, and a hearing that does not proceed is a wasted day for the Court and the other side. The Rules therefore treat non-appearance as a default with consequences, while leaving a way back for a party with a genuine reason.
What happens, event by event
| Event | Appellant or applicant absent | Respondent absent |
|---|---|---|
| Monthly call over (O 13 r 7) | Matter referred to the summary determination list; Form 10D notice to show cause | Noted; directions made in the respondent’s absence |
| Directions hearing or status conference (O 13 rr 8, 10) | Referral by the Duty Judge for summary determination under r 16(1)(b); costs | Directions made and served; costs; the respondent may lose the chance to be heard on the index and submissions |
| Application before a single Judge | Application dismissed or struck out with costs | Application heard and decided on the applicant’s material |
| Hearing of the appeal | Appeal dismissed for want of prosecution under O 7 r 48, or struck out, with costs | Appeal heard on the appeal book and the appellant’s submissions and decided on its merits |
| Election petition review directions or hearing (O 5 rr 27–37) | Dismissal under r 37 on the Court’s own motion or on application | Review heard in the respondent’s absence |
If the appellant does not appear
(1) The Court may summarily determine a matter: (a) on application by a party; or (b) on referral by a Judge; or (c) on the Court’s own initiative; or (d) upon referral by the Registrar in accordance with the procedure set out in sub rule (2) below or pursuant to s11 of the Act. (2)(a) The Registrar shall give notice in Form 10D to each of the parties of his intention to refer the matter, fixing a date for hearing not less than 30 days from the day the notice is sent … (d) the Court or a Judge may determine the matter summarily based on the response received and report by the Registrar, and any representation made by the parties; or issue directions for the future conduct of the proceedings.
At the hearing itself the respondent applies orally for dismissal for want of prosecution, and the Court will usually grant it if the appellant was served with the Form 18 notice of hearing and the Hearing List was published under Order 13 Rule 12. The Court may instead adjourn, on terms, where something in the file suggests a reason. A criminal appellant in custody is in a different position: section 9 of the Supreme Court Act provides that, except with the appellant’s consent, the hearing shall not take place in the appellant’s absence in custody unless the appellant’s conduct makes continuing impracticable, so the Registrar arranges production from the correctional institution. See whether you must attend your criminal appeal.
If the respondent does not appear
An appeal is a rehearing under section 6 of the Act, and the appellant must still show that the National Court erred. The Court reads the judgment and the appeal book, hears the appellant, and decides. A respondent who has filed written submissions has them considered. A respondent who has not filed an appearance under Order 11 Rule 2 is not entitled to notice of the hearing at all, and cannot complain of being absent from it.
Setting aside an order made in your absence
(1) An application of any nature made after disposal of a proceeding shall be filed and served within 21 days of the order disposing of the proceeding. (2) The Court or a Judge may on application set aside or vary an order made in the absence of a party where it is just to do so.
The application is in Form 4 with an affidavit explaining the absence, showing that it was not deliberate and that the party acted promptly, and, for a dismissed appeal, showing that the appeal has merit. The usual reasons that succeed are non-service of the notice of hearing, a lawyer’s failure that the client did not know of, or illness. After 21 days the Court can extend time only in exceptional cases. See whether the Supreme Court can correct its own judgment and dismissal for want of prosecution.
Lawyers who fail to appear
In Kwimberi v The State (1998) SC545 the Supreme Court upheld a finding that a lawyer who failed to appear at a criminal trial fixed with his consent, in circumstances amounting to gross carelessness, was guilty of contempt of court. The same applies in the Supreme Court, where Order 14 of the National Court Rules governs contempt through Order 2 Rule 1. Short of contempt, Order 12 Rule 11 allows costs thrown away by a non-appearance to be ordered against the lawyer personally. See whether the Court can order a lawyer to pay costs.
Avoiding the problem
Keep the Form 17 address for service current, check the Hearing List when it issues, and if a date cannot be met apply for an adjournment under Order 13 Rule 13 before the day, with an affidavit; the Court does not grant adjournments on the day except for reasons that could not have been foreseen. See what happens at a Supreme Court hearing.
Sources
- Supreme Court Rules 2012 — O 2 r 1; O 5 rr 27–37; O 7 r 48; O 11 rr 2–4, 32; O 12 r 11; O 13 rr 7, 8, 10, 12, 13, 16; Forms 4, 10D, 17, 18
- Supreme Court Act (Chapter 37) — ss 6, 9
- Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea (1998) SC545
- National Court Rules 1983 — O 14
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.