A respondent facing an appeal that has stalled has a specific remedy. It is not the National Court’s general power to dismiss for want of prosecution, but a self-contained procedure in Order 7 Division 19 with its own form.
The power: Rule 48
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.
Two triggers: a specific default, such as failing to obtain an appointment to settle the appeal book, file the draft index, lodge the book or file submissions by the date directed; or general lack of diligence. Three orders: outright dismissal, a peremptory order, or anything else that is just.
The application: Rules 49 to 51
49. The respondent may make application for an order under Rule 48 and the court may, after notice has been given to the appellant by the Registrar, make orders on reference from the Registrar. 50. An application for an order under Rule 48 shall (a) be in accordance with Form 11; and (b) be supported by affidavit. 51. An order under Rule 48(b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.
Form 11 is headed “Application for order under Order 7 Rule 50(a)(1)”. It states that application will be made to the Supreme Court at Waigani on a date, sets out the order sought, lists the affidavit in support, and ends with a notice to the appellant: if you or your lawyer do not appear to show cause why such orders should not be made, the Court may make orders in your absence. Order 11 Rule 28 applies Division 19 to reviews, references and other proceedings, substituting the nature of the proceeding for the word appeal. The form is on the Supreme Court Forms page.
What the affidavit must show
| Element | Evidence |
|---|---|
| The appeal and its date | The notice of appeal, the date of filing and service |
| The step not taken | The rule requiring it and the date by which it should have been taken: appointment to settle (O 7 r 34), draft index (r 40), settlement, lodgment (r 45), or a direction of the Duty Judge |
| Reminders and responses | Letters to the appellant’s lawyer and any replies or silence |
| Prejudice | What the delay has cost the respondent: an unenforced judgment, a stayed order, interest, a witness lost if a new trial were ordered |
| The order sought | Dismissal, or a peremptory timetable with a self-executing dismissal |
How an appellant answers
The Court has a discretion, and the question is whether the appeal is being prosecuted with due diligence. An appellant served with a Form 11 application should file an affidavit that explains the delay with dates and documents, shows what has been done since service, and proposes a timetable the Court can convert into a peremptory order under Rule 48(b). Delay caused by the transcript service, or by the respondent’s refusal to certify the index, is an answer if documented. Delay caused by the appellant’s lawyer is not an answer as such, but a candid account with a plan usually persuades the Court to choose Rule 48(b) over 48(a). An appellant who files nothing and does not appear invites dismissal under the notice in Form 11.
The peremptory order
A Rule 48(b) order names a date and provides that on non-compliance the appeal “shall stand dismissed”. No further hearing is needed: the dismissal takes effect by the order itself, and the Registrar closes the file. Rule 51 allows the order to be varied at any time before that date, so an appellant who sees the date slipping must apply before it, not after. After the date the order can be varied or revoked only in special circumstances, which in practice means a good reason for the non-compliance and prompt action once it was discovered. See dismissal for want of prosecution for how the Court has exercised the discretion.
The Registrar’s reference
Rule 49 gives the Court a second source: the Registrar. Under Order 13 the Registrar removes stalled matters from the call over list to the summary determination list and gives notice in Form 10D with at least 30 days to show cause, after which the Court may dismiss or give directions. The Order 7 Rule 50 application and the Order 13 Rule 16 referral run in parallel; a respondent who wants the matter dealt with sooner than the Registrar’s cycle allows applies. See summary determination.
Costs and what follows
Dismissal for want of prosecution is a final disposal of the appeal, and costs of the appeal and the application usually follow. Any stay lapses, and the respondent enforces the National Court judgment. What remains to the appellant is an application under Order 11 Rule 32 within 21 days, or an application under Rule 51 where the dismissal was by a peremptory order. There is no appeal from the Supreme Court. See what you can do after the appeal is decided.
Sources
- Supreme Court Rules 2012 — O 7 rr 34, 40, 45, 48–51; O 11 rr 28, 32; O 13 r 16; Forms 10D, 11
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.