Appeals take time, and appellants are sometimes elderly, ill or serving long sentences. The Supreme Court Rules say nothing about death, so the answer comes from the National Court Rules, which Order 2 Rule 1 applies to any matter the Supreme Court Rules do not cover, and from the nature of the appeal.
Civil appeals continue
(1) Where a party dies or becomes bankrupt but a cause of action in the proceedings survives, the proceedings shall not abate by reason of the death or bankruptcy. (2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or rearrangement of parties and may make orders for the further conduct of the proceedings. (3) The Court may act under Sub-rule (2) on application by a party or by a person to whom the interest or liability passes or of its own motion.
Most civil causes of action survive death: contract, debt, property, and, under the Wrongs (Miscellaneous Provisions) Act, most torts including personal injury claims, which continue for the benefit of the estate. The appeal is therefore stayed only in the practical sense that someone must be appointed to carry it on. The executor named in a will, or an administrator appointed by the National Court under the Wills, Probate and Administration Act, applies in Form 4 to be substituted as appellant or respondent, exhibiting the grant. Order 11 Rule 11 of the Supreme Court Rules gives the Court or a Judge power to add or substitute parties, and Order 5 Rule 11 of the National Court Rules provides that everything done before substitution has effect for the new party.
The three-month rule
Where a party dies, the cause of action survives, and no order substituting a party is made within three months after the death, the Court may, on the application of a party or of a person to whom liability passes, order that unless a party is substituted within a specified time the proceedings be dismissed so far as concerns that cause of action. A respondent faced with a stalled appeal after the appellant’s death uses this rule, or applies in Form 11 for dismissal for want of prosecution.
What happens, by type of proceeding
| Proceeding | Effect of death |
|---|---|
| Civil appeal on contract, debt, land, or a tort that survives | Continues; estate substituted; three-month rule applies |
| Civil appeal on a purely personal claim, such as defamation, or an application for a personal licence or office | Cause of action does not survive; appeal abates and is dismissed with any costs order the Court thinks just |
| Election petition review by or against a candidate | The seat and the review are personal; the Court will ordinarily dismiss the review as having no utility, though the Electoral Commission may seek a ruling on a point of general importance |
| Criminal appeal against conviction or sentence | Abates on the appellant’s death unless the Court exercises a discretion to hear it; a fine, compensation or restitution order against the estate is the usual reason to do so |
| Public Prosecutor’s appeal against sentence or acquittal where the respondent dies | Abates; there is nobody to sentence |
| Section 18(1) constitutional application | Continues if the question affects others with standing; otherwise may be declined under Order 4 Rule 18 as hypothetical |
Criminal appeals
A criminal appeal is brought by the person convicted under section 22 of the Supreme Court Act and asks for that person’s conviction to be quashed or sentence reduced under section 23. On death there is no sentence to serve and no person to acquit, and the ordinary course is for the Public Prosecutor to inform the Court and for the appeal to be marked abated. The Court has nevertheless accepted, as courts in comparable jurisdictions have, that it may hear a deceased person’s appeal where a real interest survives: an order for compensation or restitution under section 30 of the Act that binds the estate, a fine paid or payable, or a point of law of public importance that the Public Prosecutor asks the Court to decide. A family member wishing to clear the deceased’s name applies in Form 4 for leave to continue the appeal, with an affidavit showing the interest. See how to appeal a criminal conviction.
There is no reported Supreme Court of Papua New Guinea decision on PacLII squarely deciding whether a criminal appeal survives the appellant’s death; the position stated is drawn from the structure of the Act and the practice of the Court.
If the respondent dies
The same rules apply. The appellant applies to substitute the estate, serves the executor or administrator at the Form 17 address or personally, and the appeal proceeds. Where no grant has been taken out, the appellant can ask the National Court to appoint an administrator for the purpose of the litigation, or the Supreme Court can order that the appeal proceed in the absence of a representative if the estate has been given notice. See how documents are served in the Supreme Court and what happens if a party does not appear.
Sources
- National Court Rules 1983 — O 5 rr 10–12
- Supreme Court Rules 2012 — O 2 r 1; O 4 r 18; O 7 r 50; O 11 r 11; Forms 4, 11
- Supreme Court Act (Chapter 37) — ss 22, 23, 30
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.