Most appeals that fail do so because the National Court was right, not because the appeal should never have been brought. A small number are different: they raise nothing that could succeed, or they are brought for a purpose other than winning. The Act and the Rules give the Court short ways of dealing with them.
Section 11 of the Act
(1) Notwithstanding this Act, where the Registrar is of the opinion that a notice of appeal, or a notice of an application for leave to appeal, does not show any substantial ground of appeal, the Registrar may refer the appeal to the Supreme Court for summary determination. (2) Where the Registrar refers a notice under Subsection (1), and the Court is satisfied that the appeal (a) is frivolous or vexatious; and (b) can be determined without a full hearing, it may, notwithstanding anything in this Act or any other law, dismiss the appeal summarily without calling on any person to attend the hearing.
The section is a filter at the Registry door. It is used most for prisoner appeals filed on the Second Schedule form that state no ground at all, or a ground the law does not recognise, and for civil notices that simply assert the judgment was wrong. The Court reads the notice and the judgment; if a ground could conceivably succeed, the appeal goes on to the ordinary process.
What the words mean
| Term | Meaning | Examples |
|---|---|---|
| Frivolous | Without substance; no reasonable prospect of success on any view of the law and facts | Grounds that only restate the losing argument; a ground of fact where section 14(1)(c) leave was not sought; an appeal against a consent order, barred by section 14(2) |
| Vexatious | Brought to annoy, harass or oppress, or for a collateral purpose, rather than to obtain a genuine decision | A fresh appeal on a point already decided between the parties; an appeal filed only to obtain a stay and delay enforcement; repeated appeals from the same interlocutory ruling |
| Abuse of process | Use of the Court’s procedures for a purpose or in a way they were not designed for | Running an appeal and a section 155(2)(b) review on the same judgment; relitigating what an earlier proceeding decided |
The Supreme Court held that a party commencing a multiplicity of proceedings about the same issues commits an abuse of process unless very good reasons justify it, and that res judicata applies where the issues have been finally determined by a court with authority to do so: Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906. The same reasoning marks an appeal that reopens a concluded dispute as vexatious.
Three ways a hopeless appeal is stopped
First, section 11: the Registrar refers, the Court dismisses on the papers. Second, Order 13 Rule 16 of the Rules: at the call over the Registrar refers a matter for summary determination where the appellant has not appeared, not complied with directions, not taken steps, or otherwise not prosecuted the appeal with due diligence, and Form 10D gives notice to show cause. Third, an application by the respondent under Order 7 Rule 50 or Order 11 Rule 25 for dismissal as an abuse of process or for want of prosecution, or an objection to competency in Form 9 where the defect is jurisdictional. See summary determination, objections to competency and abuse of process in the Supreme Court.
Costs consequences
Order 12 Rule 11 lets the Court order a lawyer to pay costs personally where costs were incurred improperly, without reasonable cause, or by undue delay or misconduct. Filing an appeal the lawyer knows to be hopeless, to buy time, is the standard example. Order 12 Rule 30 also lets the taxing officer disallow costs of unnecessary or improper steps. See whether the Court can order a lawyer to pay costs.
Avoiding the label
Plead grounds that identify a specific error of law or of mixed fact and law, in the manner Form 8 requires, and seek leave under section 14(1)(c) for any ground of fact. Do not appeal a consent order or a costs-only order. Do not file both an appeal and a review. If the real problem is an ex parte or default judgment, apply to the National Court to set it aside instead of appealing. And if the appeal has lost its point, discontinue it under Order 7 Rule 20 rather than let the Court dismiss it. See what makes a good ground of appeal and filing two proceedings about the same judgment.
Sources
- Supreme Court Act (Chapter 37) — ss 11, 14
- Supreme Court Rules 2012 — O 7 rr 15–20, 50; O 11 r 25; O 12 rr 11, 30; O 13 r 16; Forms 8, 9, 10D
- Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906
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.