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Case Commentary on the Supreme Court Act and Supreme Court Rules
(published 15th May 2009).
Not including all 2009 Supreme Court cases.

DISCLAIMER

The case commentary is not legal advice. It does not purport to be a complete reference to all relevant cases nor a complete statement of the law. Every effort has been made to make the commentary an accurate statement of general principle on the more common issues and to point out those areas where it appears difficult to bring all published decisions within a single principle. The purpose of the commentary is to assist practitioners and others interested in the law in commencing research. No undertaking is given that the commentary is or will be kept up-to-date. The commentary should not itself be cited as authority.

Justice Gregory Lay

_________________________________

ORDER 3

Rule 2

Generally-The Constitution Section 162 (2) provides that in cases provided for by Act of the Parliament or the Rules of the Supreme Court, the jurisdiction of the Supreme Court may be exercised by a single judge of the court or by a number of judges sitting together. The Supreme Court Act Section 5 provides that a single judge may give (a) a direction not involving the decision on the appeal; (b) an interim order to prevent prejudice to the claims of the parties; or (c) an order in any proceedings (other than criminal proceedings) for security for costs; or (d) an order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or (e) an order admitting an appellant to bail. Section 10 provides that a single judge may (a) give leave to appeal or (b) extend the time within which notice of appeal or an application for leave to appeal may be given or (c) admit an appellant to bail.

Rule 2 sub rule-

(a) "not involving a final decision upon the proceedings" means - "includes" or "entails" or "affects in its operation" any decision which may have to be made on the appeal. To determine those issues the grounds of appeal need to be examined: SC789 (2005) Wau Ecology Institute v Registrar of Companies. The rule includes a power to direct that the notice of appeal be amended in specific particulars: Rahonamo v Enai & the Administration of the Territory of Papua and New Guinea [1971-72] PNGLR 150. And see Supreme Court Act Section 5 (1) (b) the jurisdiction of a single judge is restricted to decisions " not involving the decision on the appeal". This Rule and Section 5 do not give a single judge power to order that additional evidence be admitted on the appeal or to make any order which changes the fact situation to be brought before the Supreme Court: SC 794 (2005) Wau Ecology Institute v Registrar of Companies. For interim orders in a judicial review under Constitution Section 155(2) (b) see comments to Order 5.

(b) The common-law principles applicable to interlocutory injunctions can be applied by analogy, but not strictly: Nora Mairi v Alkan Tololo [1976] PNGLR 59; SC756 (2004) Sir Pato Kakaraya v The National Parliament. Those principles applied before there were Rules. The Rule defines the powers of the Court which cannot develop the underlying law on the topic. The rule is concerned with prejudice to the parties and cannot be extended to "matters of national importance". Constitution Section 155(4) has no application to the interpretation of O3 r2: SC 754 Bill Skate and Peter O'Neil v Jeffrey Nape Speaker of the National Parliament. It does not apply when jurisdiction is given by other legislation and is not the "original jurisdiction" of the Court. A Constitution Section 155(2) (b) review application is not the original jurisdiction of the Court: SC539 (1998) Viviso Seravo v John Giheno. A full bench of the Supreme Court has jurisdiction under Section 155(4) of the Constitution, to grant a stay of National Court orders on an election petition or to make other interim orders, pending determination of a review under Constitution, Section 155(2)(b), of the National Court orders. The test to apply is whether the order is necessary to do justice in the particular case: David Arore v John Warisan (2008) SC947.

Also see the notes to Order 5. Some of the matters to be taken into account when considering an application for a stay are: (1) the judgment creditor is entitled to the benefits of the judgment. (2) Whether leave to appeal is required and whether it has been obtained;(3) Whether there has been any delay in making the application, (4) Possible hardship, inconvenience or prejudice to either party, (5) The nature of the judgment sought to be stayed, (6) The financial ability of the applicant, (7) Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal, (8) Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure, (9) The overall interest of justice, (10) Balance of convenience, (11) Whether damages would be a sufficient remedy: Gary McHardy v Prosec Security and Communications Ltd [2000] PNGLR 279. Cases applying McHardy v Prosec Security and Communications Ltd have been listed in Lupari v Somare & Ors (2008) SC951. And see the commentary to section 19 of the Supreme Court Act. Once an appeal has been lodged the National Court is functus officio and has no power to stay its own order from which the appeal is brought: SCM No 58 of 2008 Barava Ltd v Giregire Estates Limited (unreported Supreme Court decision dated 28th November 2008). A stay should not be granted to preserve a right in respect of which the applicant could not obtain permanent relief: SC 951 (2008) Lupari v Somare [2008] PGSC 33.

ORDER 4

Rule 1 (e) The requirement of this rule (for the reference to be signed by designated officers) also applies to applications under Constitution Section 19: Central Provincial Government v NCDC [1987] PNGLR 249. The requirement for signing by specified officers goes to the validity of the application. Signature by an unauthorised person cannot be cured by a direction of the Court to get the reference properly signed: SC817 (2007) In the Matter of Section 19 of the Constitution � Reference by Fly River Provincial Government Executive (Ref. No. 3 of 2006). The Supreme Court Rules do not provide procedure for commencing proceedings in the original jurisdiction of the Supreme Court. Ad hoc directions can be given pursuant to Section 185 of the Constitution: Isadore Kaseng v Rabbie Namaliu, and the Independent State of Papua New Guinea (No.1) [1995] PNGLR 481. Also see commentary to Section 15 of the Supreme Court Act.

Rule 2(b) In a reference made under Constitution s18 it is also appropriate that the proceedings be commenced in the National Court and the facts found from which the Constitutional interpretation issue arises before making the reference: Re Calling of Meetings of Parliament [1999] PNGLR 285 per Kapi DCJ as he then was and see to the same effect SCR No.3 of 1982; Re s57, s155(4) of the Constitution [1982] PNGLR 405 at 407 and SCR No.5 of 1982; Hugo Berghuser v Joseph Aoae [1982] PNGLR 379 and SCR No. 1 of 1982; Re Philip Bouraga [1982] PNGLR 178.A reference under s18 of the Constitution should not be made on assumed facts: Supreme Court Reference No.5 of 1982 [1982] PNGLR 379 (SC), the trial judge must deal with the facts which give rise to the constitutional issue: Patterson Lowa v Wapule Akipe [1992] PNGLR 399. A reference can only be made where (a) there is an issue as to the interpretation of the Constitution or a constitutional law, (b) the question is not trivial, vexatious or irrelevant, (c) the Supreme Court has not previously finally and authoritatively interpreted and applied to the particular provision, (d) no other provision of the Constitution or any other constitutional law gives the National Court jurisdiction to apply or interpret the constitutional law: SC 930 (2008) Lupari v Somare [13].

ORDER 5

A single judge of the Supreme Court has no power to make interim orders in a judicial review under Constitution Section 155(2) (b): SC 539(1998) Review No. 78/1977; Application for Review Pursuant to s 155(2) (b) of the Constitution; Viviso Seravo and Electoral Commission v John Giheno. The full bench of the Supreme Court has to convene to deal with such issues: SC 555 (1998) Viviso Seravo v Electoral Commission v John Giheno, followed in SC 562 (1998) Wauni Wasia Ranyeta v Masket Iangelio and David Lambu v Peter Ipatas (No.3) [1999] PNGLR 207. Failure of a lawyer to fulfil his obligations to the client by failing to file a notice of appeal is not a ground justifying leave to review: SC 925 (2008) Application by Stephen Mark [2008] PGSC 16. There are 3 categories of cases where jurisdiction has been exercised under Section 155 (2) (b) - (1) where parties allow a statutory right of appeal to expire, (2) where a right of appeal is prohibited or limited by law, (3) where there is no other way of going to the Supreme Court: SC 855 (2006) Application of Herman Leahy at [57]. An undischarged insolvent has no locus standii to seek review: SC 956 (2008) Autahe v Koreu [2008] PGSC 39. In election petition matters (1) leave is required to review a final decision of the National Court, (2) the grant or refusal of leave is discretionary, (3) the 3 criteria set out in Avia Aiha v The State [1981] PNGLR 81 are not applicable, (4) there are 2 criteria, (a) is there an important point of law to be determined which is not without merit? And (b) in so far as the application relates to facts, there is a gross error on the face of the record or the finding of fact is so outrageous or absurd as to result in an injustice: SC 935 (2008) Jurvie v Oveyara [2008] PGSC 22. 1. An application for leave to review a decision on an election petition not filed, served and moved before a judge within 14 days of the decision sought to be reviewed, where extension of time is not granted within that 14 days, is rendered incompetent by the Rules, subject to any application under Rule 5/10/32. 2. The purpose of the Election Petition Review Rules is: a) not to treat an election petition review as an ordinary matter but as a special matter requiring the applicant's constant and detailed attention; b) to closely manage the review process; c) to reduce to the minimum the time between the various steps in the review. 3. The times imposed by the Rules are tight and where prompt application is made for relief within the mandatory 14 days accompanied by a reasonable explanation, many circumstances will justify an extension of time under Rule 5/1/7 or after that time a dispensation from the requirements of the Rules under Rule 5/10/32; 4. An applicant under Rule 5/10/32 should explain (1) why a time limit was missed, a Rule not complied with or otherwise why dispensation is required, (2) any delay which has occurred in making the application, (3) that the relief sought by the applicant will not unduly prejudice the other party's case, (4) that the granted dispensation will enable all of the issues in contention to be promptly brought before the court without further delay: SC 945 (2008) Vele v Parkop. Failure to apply for dispensation from Election Petition Review Rules with which the applicant has not complied may result in the review being dismissed: SC 948 (2008) Yawari v Agiru [2008] PGSC 31.

ORDER 7

Rule 2 Notice of application for leave shall be filed in accordance with form 7: Henzy Yakham and the National Newspaper v Dr Stuart Hamilton Merriam & ors (infra).

Rule 2 (c) it is mandatory to set out the three requirements under the Rule: Placer (PNG) Ltd v Anthony Harold Leivers (2005) SC781.

Rule 4 The purpose of the leave procedure is to sort out the unmeritorious appeals so that the Supreme Court is not clogged. Where leave is sought but not required and notice of appeal has not been filed, leave should be granted if the appeal appears to have merit: SC 711 (2003) Boyepe Pere v Emmanuel Ningi, applied in SC779 (2005) Oia Aba v MVIL SC779 and SC 843 (2006) The State v John Talu Tekwie. Not considered in SC 768 (2004) Paul Bari v John Rain. Leave to appeal cannot be sought in a Form 8 Notice of Appeal. Leave to appeal must be separately sought in Form 7 Application for Leave to Appeal: Henzy Yakham and the National Newspaper v Dr Stuart Hamilton Merriam & ors [1998] PNGLR 555 A person directly affected by an order of the National Court does not require leave to appeal solely because he was not a party to those National Court proceedings: SC 886 (2007) Kenn Norae Mondiai & anor v Wawoi Guavi Timber Co. Ltd & ors. Applications for Leave. The onus is on the applicant to show a prima facie case that the decision of the trial judge was wrong and that substantial injustice will be done by leaving the erroneous decision unrevised: Breckwoldt v Gnoyke [1974] PNGLR 106126 (considering the now repealed rules). In Rimbink Pato v Anthony Manjin [1999] PNGLR 6 the court said an applicant for leave must advance "cogent and convincing reasons or exceptional circumstances. There must be clear legal grounds meriting an appeal, and he must have an arguable case". Although this case has been cited on many occasions in relation to injunctions against the exercise of statutory investigative authority, it has never been cited for the propositions quoted. The main ground to be established on application for leave is that there is an arguable case. Where the decision appealed from falls within the ordinary interlocutory discretion of the trial judge relating to practice and procedure or costs, in addition to disclosing an arguable case, the applicant may have to show that the decision appealed from prevents the agitation at trial of some issue germane to the appellant's case. See the majority opinion in SC607(1998) Sir Julius Chan v The Ombudsman Commission - ", leave to appeal is therefore unlikely to be given in circumstances where the judgment challenged may have little or no bearing on the final determination of the issues between the parties; leave should not be given where by the rules of the court there is obvious recourse for further application on the matter, nor should leave be given where the ruling is within the discretion of the Court and discloses no obvious breach of principle: SC607(1998) Sir Julius Chan v The Ombudsman Commission (Kapi DCJ, Sheehan and Jalina JJ) at p11 per Sheehan and Jalina JJ. The various cases are discussed in a single judge decision of SC 801 (2005) Matiabe Oberia v Police and the State. An appeal from an interlocutory ruling on an objection to the competency of a motion to review taxed costs requires leave. The appellant must show exceptional circumstances and compelling reasons for leave to be granted: Hii Yui Ann v Canisius Karu Karingu (2003) SC718. There is no stipulation in the rules that an Application for Leave to Appeal be served: Don Pomb Polye v Simpson Sauk Papaki [2000] PNGLR 166. Interlocutory Order. For cases on what is an interlocutory order see the commentary to the Supreme Court Act s 14(3)(b).

Rule 5 Once leave is granted O7 r5 is invoked: SC 533 (1997) Henzy Yakham and The National Newspaper v Dr Stuart Hamilton Merriam & ors per Kidu CJ at 5 and Kapi DCJ at 11.

Rule 6 The authority of the next friend of an infant to institute or continue an appeal ceases upon the infant obtaining his or her majority. Notice that an infant has reached his majority and has decided to adopt the proceedings should be given to the other parties: SC 691 (2002) Donigi v PNGBC.

Rule 8(e) A notice of appeal should not prospectively contain grounds requiring leave before leave is obtained. The third alternative in par. 2 of Form 8 that leave is to be sought at the hearing of the appeal is without legal basis and must be deleted: Yakham v Merriam [1998] PNGLR 555 at 562.

Rule 12 Where the address for service of the respondent is in the same town as the Registry in which the appeal has been lodged periods of 7 to 14 days to serve the notice of appeal are a breach of the requirement to serve without delay: SC 484 (1995) Yema Gaiapa Developers Pty Ltd v Hardy Lee.

Rule 14 There is no power to extend the period of 14 days to file and serve an objection and no right to raise objections outside the time allowed: State v Kubor Earthmoving (PNG) Ltd [1985] PNGLR 448 approved in Patterson Lowa & ors v Wapala Akipe & ors[1991] PNGLR 265; [1992] PNGLR 399; followed in SC 795 (2005) Gregory Pule Manda v Yatala Ltd. An objection to competency may be raised at any time before judgment at the discretion of the court: Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC 828. "An objection to competency is really an objection to the jurisdiction of the Court to entertain the point...": SC 185 (1980) Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd per Kearney DCJ. An appeal may be incompetent if it does not comply with the Supreme Court Act or Rules: Haiveta v Wingti (No.2) [1994] PNGLR 189. The Rule makes it mandatory for an Objection to Competency to be in form 9 to the Rules: SCA53 of 2008 Yer & Ors v Yama (2008) SC�unreported Supreme Court decision of 29th October 2008. An objection might be made where (1) there is no right of appeal; (2) there is no reasonable ground of appeal stated in the notice of appeal; (3) the grounds of appeal are frivolous and vexatious; (4) notice of appeal was served out of time; (5) the notice of appeal is irregular: SC 717 (2003) PNG Forest Authority v Securamax Securities Pty Ltd. Objection has been made where it was contended the appeal should be preceded by an application for leave to appeal: SC 185 (1980) Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd; Nerau v Solomon Taiyo Limited [1993] PNGLR 395; SC 625 (1999) Garamut Enterprises Ltd v Steamships Trading Ltd; or that the appeal should have been commenced by Notice of Motion: SC699 (2002) Felix Bakani v Rodney Daipo; or that there was a fatal defect in the form of notice: See SC 781 (2005) Placer (PNG) Ltd v Leivers for discussion on the completion of a Form 7 Application for Leave to Appeal. Objection has been filed where it was contended that the appeal could not possibly succeed as a question of law because -the appeal was based on the admissibility of a document admitted into evidence on trial without objection, and a point of law not raised at the trial and the facts did not give rise to the question of law: SC 828 (2006) Chief Inspector Robert Kalasim & The State v Aina Mond & ors-the point has already been decided by the appellate Court between the parties or their privies so that there is an issue estoppel or res judicata: SC642(1999) Don Pomb Polye v Jimson Sauk Papaki-the appeal has been filed outside the statutory time limit: Jeffrey Balakau v Ombudsman Commission [1996] PNGLR 346. The appellant does not have sufficient interest in the subject matter of the judgment from which the appeal is taken: SC916 (2008) SCA No.63 Placer (PNG) Limited & Anor v Joshua Siapu Yau & Ors. It is not a proper ground of objection to competency of an application for leave to appeal that the proposed grounds of appeal are unmeritorious, frivolous or vexatious or that the application for leave was unnecessary: Turia and McKay v Nelson and National Housing Corporation (2008) SC949. The rule does not apply to Order 10 appeals and an objection to competency should not be filed in such appeals: SC886 (2007) Kenn Norae Mondiai & anor v Wawoi Guavi Timber Co. & ors at [32]. An application citing delay should be brought in form 11 and not in an Object to Competency: SC 766 (2004) The State v David Nelson.

Rule 14 and Rule 18. The court can raise an issue of competency at any time until judgment: Bruce Tsang v Credit Corporation (PNG) Ltd [1993], PNGLR 112 and Haiveta v Wingti (No.1) [1994] PNGLR 160. An appeal from dismissal of an objection to competency requires leave: Hii Yii Ann v Canisius Karingu (2003) SC 718.

Rule 21 A party discontinuing an appeal is liable for the costs of other parties in the appeal pursuant to Rule 19 up until the notice of discontinuance is served on them: Public Curator v Bank South Pacific Ltd (2006) SC 840.

Rule 23 The following are "special circumstances" upon which the Court may exercise its discretion to order security for costs: (a) that an appellant is ordinarily resident out of the jurisdiction; (b) that there is reason to believe that the appellant will not be able to pay the costs of the respondent if ordered to do so; (c) that the address of the appellant is not known; (d) that the appellant has changed address after the appeal is instituted with the intention of avoiding the consequences of the appeal. The list is not exhaustive, there may be other facts which establish special circumstances: Brinks Pty Ltd & Barry Tan v Brinks Inc [1996] PNGLR 75. In an application for judicial review under Constitution s 155(2) (b) on the question of whether or not security for costs should be ordered, the ultimate test should be whether it is in the interests of justice to make an order for security for costs having regard to all the circumstances of the case. The onus is on the applicant to demonstrate why the discretion should be exercised in his favour: SC 601 David Lambu v Peter Ipatas (No.3) [1997] PNGLR 207.

Rule 24 An amendment to raise a completely new ground of appeal after the time limited for appeal would be an abuse of the Supreme Court Act: Dinge Damane v State [1991] PNGLR 244 per Kapi DCJ at 248, and by the majority, an application out of time for leave to amend a notice of appeal should only be allowed in exceptional circumstances and at the discretion of the court. A completely new matter cannot be raised outside the 40 days allowed by Section 17 of the Supreme Court Act: Bruce Tsang v credit Corporation (PNG) Ltd [1993] PNGLR 112. See also the commentary to Order 11 rule 11.

Rule 37 The request for the transcript should be filed at the same time as the Notice of Appeal: SC 691 (2002) Donigi v PNGBC.

Rule 43 (h) A handwritten transcript of evidence should not be included in a Supreme Court appeal book: SC 347 (1987) Puruno v Koi per Bredmeyer J. Only relevant transcripts should be included in the appeal book: SC 691 (2002) Donigi v PNGBC.

Rule 48 Where an appellant fails to set the appeal down within the time stipulated the respondent may make an application under O 7 r 53: SC 691 (2002) Donigi v PNGBC.

Rule 53 A number of Supreme Court decisions have considered this rule and the relevant cases are digested in SC 811 (2005) PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd and SC832 (2006) The Public Curator v Bank of South Pacific Ltd (1) An appeal might be struck out if it is not set down as required by the rules. Where an appeal has not been set down as prescribed, the power to dismiss for want of prosecution remains discretionary. (2) The discretion is to be exercised having regard to all the circumstances of the case including, inter alia, (a)         the length of and reasons for delay on the appellant�s part; (b)        the extent to which, having regard to any delay, evidence likely to be adduced may lose its cogency;(c) the availability of a transcript, and(d)           any negotiations between the parties: Burns Philp (New Guinea) Ltd v George [1983] PNGLR 55 (considering r 25 of the Supreme Court Rules 1977). Now see O7 r48. (3) Matters relevant to the want of due diligence include failure to promptly serve the Notice of Appeal, failure to attend on settlement of the appeal book, failure to explain non attendance: SC 484 (1995)Yema Gaiapa Developers Ltd v Hardy Lee; failure to respond to correspondence: SC 530 (1997) Attorney General, Minister for Justice and the State v Papua New Guinea Law Society, and SC 691 Donigi v PNGBC; and failure to provide any explanation for dilatory conduct where an explanation could properly be expected: SC 667 (2001) Bernard Juali v The State; General Accident Fire and Life Assurance v Ilimo Farm [1990] PNGLR 331. The absence of an explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected: General Accident Fire and Life Assurance v Ilimo Farm (supra).(4) The discretionary powers under O7 r 53(a) should not be exercised in favour of the respondent where no explanation for want of due diligence is made: General Accident Fire and Life Assurance v Ilimo Farm (supra). That a lawyer cannot be present because he is appearing before another judge may be an adequate explanation: SC 537 Joe Chan and PNG Arts Pty Ltd v Mathias Yambunpe. 7 months delay in applying for the transcript of evidence to be prepared requires a proper explanation and the absence of one may result in the appeal being dismissed: SC 691 Donigi v PNGBC. The Court must consider the whole of the circumstances in which an application for dismissal on the grounds of want of prosecution is brought, in particular events that have taken place since the application was filed. The application to dismiss itself should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required, but has made good its omissions before the application to dismiss is heard, the application may not be successful. Once a case of delay is established the onus falls on the appellant to explain it: SC 762 (2004) Dan Kakaraya v Michael Somare, Koiari Tarata and Francis Kaupa. The court may consider the consequences of dismissal of the appeal. If dismissal will not finally dispose of the proceedings between the parties it may be a factor favouring dismissal: SC904 (2008) State v Turu & Ors.18 months delay in filing and serving the index to the appeal book is an inordinate delay: SC 840 (2006) The Public Curator v Bank of South Pacific Ltd. In deciding how to exercise the discretion vested in the court by the rule it is appropriate for the court to consider the consequences of dismissal: The Independent State of Papua New Guinea v Raymond Turu and John Maku (2008) SC 905. An appeal dismissed for want of prosecution cannot be re-agitated as an application pursuant to Constitution Section 155 (2) (b): SC 821 (2005) PNG Waterboard v Gabriel Kama. An application citing delay should be brought in form 11 and not in an Object to Competency: SC 766 (2004) The State v David Nelson. An order to seek an appointment with the Registrar requires that the request for the appointment be served on the Registrar: SC 954 (2008) Thomson v Karingu [2008] PGSC 35. ABUSE OF PROCESS-The Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of process: Polye v Sauk & Ors [2000] PNGLR 166. A party commencing a multiplicity of proceedings on the same issues will commit an abuse of process unless there is a very good explanation justifying it: SC906 (2008) Telikom v ICCC .

Rule 56 In order to attract the exercise of the "special circumstances" jurisdiction the applicant has to show (1) why application to extend the time was not made before the time expired; (2) something out of the ordinary delays experienced in litigation, (3) that the event which prevented compliance with the order of the court occurred prior to the expiry of the time limit imposed by the order,(4) that the appellant is now prepared to prosecute the appeal without further delay: SC 859 (2006) Dr Alan Kulunga v Western Highlands Provincial Government & Ors.Where the court has imposed a self executing order requiring the appellant to take action by a specified time, an appointment required from the Registry should be obtained by prompt personal attendance, not by writing letters. An appeal which is directed to be ready for a particular sittings should be ready for the call-over preceding that sittings:SCA114 of 2005 National Housing Commission v Mt Hagen Local Level Government unreported Supreme Court judgement 8th May 2009.

Rule 57 This rule applies to "evidence which the claimant was unable to produce before the decision was given or which he could not reasonably be expected to have produced in the circumstances of the case": John Peng v The State [1982] PNGLR 331. Fresh evidence might be admitted in a criminal appeal if the justice of the case requires, even if that evidence was available and known to both prosecution and defence at the trial: Busina Tabe v The State [1983] PNGLR 10. "Fresh evidence" within the meaning of Supreme Court Act s6(1) (a) means evidence which has become available since the hearing or trial, evidence that has come to the knowledge of the party applying since the hearing or trial and which could not by reasonable means have come to his knowledge before that time. Where evidence is "fresh evidence" so defined it must also be relevant, credible, admissible according to the rules of evidence, and by it a reasonable man would be given cause to doubt, before the Supreme Court might exercise the discretion to allow it "where it is satisfied the justice of the case warrants it". Where the evidence is not fresh the Supreme Court has power to admit it pursuant to s8, "if it thinks necessary or expedient in the interests of justice to do so". Evidence which was not "fresh evidence" but which alleged a conspiracy as to the evidence to be given on a murder trial, should be allowed on appeal against conviction pursuant to the Supreme Court Act s8(1)(b): Ted Abiari v The State (No.1) [1990] PNGLR 250 applied in SC532 (1997) Mamun v The State and SC698 (2002) Jimmy Ono v The State. See also notes to s6 of the Act.

Rule 63 The preparation and service, in the time stipulated by the rule, of the affidavit in response to the application is important because the other party (the applicant) has a right to call evidence in rebuttal: Ted Abiari (No. 2) v The State [1990] PNGLR 432.

Rule 65 An interlocutory order means orders "... which do not decide the issues between the parties": Sir Julius Chan v Ombudsman [1999] PNGLR 240. See the commentary on Supreme Court Act s 14(3) (b) for further discussion on "interlocutory orders".

Rule 66 An adjournment can be granted if the appellant shows that he filed the appeal in person and subsequently obtained a lawyer who wants to amend the notice of appeal before hearing: Damane v The State [1991] PNGLR 244.

ORDER 10

Rule 1 Leave is required to appeal from a grant of leave for judicial review: SC 625 (1999) Garamut Enterprises Ltd v Steamships Trading Ltd followed and applied in SC 766 (2005) The State v David Nelson . An application for leave under Order 10 should be made in Form 7: SC 766 (2005) The State v David Nelson. An appeal by way of notice of motion under this order must be filed within 40 days of the judgment appealed from pursuant to the provisions of Supreme Court Act Section 17: Jeffrey Balakau v Ombudsman Commission [1996] PNGLR 346 (obiter-Section 14 also applies). Followed and applied in SC 765 (2004) The State v John Tuap. Where the 40th day for appeal falls on a Sunday an appeal filed on the following Monday is filed within time: SC885 (2007) Tony Kila & Ors v Talibe Hegele & Ors. See also National Court Rules O 16 r 11. O16 r11 of the National Court Rules and Order 10 of the Supreme Court Rules provide the exclusive procedure for applications for judicial review: SC557 (1998) Rt Hon Sir Julius Chan v The Ombudsman Commission of Papua New Guinea . Order 7 rule 14 (objections to competency) does not apply to Order 10 appeals and such objections should not be filed: SC 886 (2007) Kenn Norae Mondiai & anor v Wawoi Guavi Timber Co. Ltd & ors.

Rules 2 and 3 If the motion is not in accordance with the provisions of the Rules it is not a motion for that purpose: SC 659 Felix Bakani v Rodney Daipo (single judge) and on appeal - the procedural requirements of the rules are restrictive and onerous and couched in strictly mandatory terms. Those terms must be complied with by the appellant: SC 699 (2002) Felix Bakani Rodney Daipo. Followed in SC907 (2008) Substantive Council of the University of Goroka v Minister for Higher Education, Research and Technology. An application for extension of time to appeal or to seek leave to appeal must be made within the 40 days prescribed by Supreme Court Act s 17. If the application is made to a single judge and refused, a further application to the full court must be made within the same 40 days: SC 699 (2002) Felix Bakani Rodney Daipo. The application made to the full court must be a fresh application and not an application to reinstate or set aside the previously refused application: SC 765 (2004) The Independent State of Papua and New Guinea v John Tuap.

ORDER 11

Rule 9 Application could be made under this rule for directions to amend the name of the representative of a deceased estate: SC 832 (2006) The Public Curator v Bank of South Pacific Ltd

Rule 11 Amendment . The Supreme Court Act prevails over the Rules: Acting Public Solicitor v Uname Aumane [1980] PNGLR 510,512,516. The rules must be read subject to the Act: SC798 (2005)Yanta Development Association v Piu Land Group Inc & ors. An appellant cannot introduce an entirely new matter to the Notice of Appeal outside 40 days: Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 and cf. the majority in Dinge Damane v The State [1991] PNGLR 144 - an application out of time for leave to amend a notice of appeal should only be allowed in exceptional circumstances and at the discretion of the court. Last-minute amendment should only be granted in exceptional circumstances and at the discretion of the court e.g. a suddenly change of counsel for the appellant where the point to be raised broadly seems to have merit: Rolf Schubert v The State [1979] PNGLR 66. Leave to amend should not be granted on the day of hearing when the ground should properly have been included in the Notice of Appeal and amendment would inevitably delay the hearing, unless adequate reasons are shown: Birch v The State [1974] PNGLR 75. Applications to add grounds of appeal in the course of the address in reply should not be entertained: Van der Kreek v Van der Kreek [1979] PNGLR 185, nor a change in the nature of the relief sought: SC 886 (2007) Kenn Norae Mondiai & anor v Wawoi Guavi Timbers Co. Ltd & ors at [29-31]. A notice of appeal can be amended to vary the grounds of appeal or the relief sought by supplementary notice without leave, prior to settlement of the appeal book (query whether this is so if settlement of the appeal book is delayed beyond 40 days from the decision appealed from); after that date with leave of the court. On an application for leave to amend the test is whether there are special circumstances in a particular case, which would make the case an exceptional case that should warrant the grant of leave to amend the notice of appeal. With leave of the court points of law not argued in the court below may be raised if the point could not have been cured by evidence in the trial: SC 812 (2005) Papua Club Inc v Nasaum Holdings Ltd and dissenting from that view "The MVIT v James Pupune [1993] PNGLR 370 line of cases is to be preferred... an appeal court should not determine issues not first raised in the trial court, except with the consent of the parties or with special leave of the court in very exceptional circumstances such as want of jurisdiction": Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853. Adding a Party. An appellant cannot be added outside the 40 days provided by Supreme Court Act s17: SC 886 (2007) Kenn Norae Mondiai & anor v Wawoi Guavi Timbers Co. Ltd & ors at [27].

Rule 14 Neither extracts from the transcript nor from the cases cited should be set out in written extract of argument unless extremely brief: SC 886 (2007) Mondiai & anor v Wawoi Guavi timber Co Ltd & ors

Rule 19 (b) The rule should be observed. The extract of submission should be no more than four pages. Lengthy extracts of argument quoting parts of judgments or affidavits and parts of the transcript are unhelpful: SC 886 (2007) Mondiai & anor v Wawoi Guavi Timber Co. Ltd & ors. Submissions should dovetail with the grounds in the Notice of Appeal, not appear that the appellant has forgotten the grounds of appeal: SC812 (2005) The Papua Club Inc v Nusaum Holdings Ltd & Ors at [125].

First Schedule - Forms to the Rules

Form 8 - in paragraph 2 all words after "OR" are to be deleted, that is the words "Leave to appeal is sought at the hearing, as the matters to be raised in that application are in whole and / or in part (whichever is applicable) the substantive matters constituting the grounds of appeal as set out in the grounds numbered (here state).": SC 533 (1997) Henzy Yakham and the National Newspaper v Dr Stuart Hamilton Merriam & ors .Practice Direction 1/94 requires the Form 8 Notice of Appeal to contain (1) the National Court file number, (2) the name of the judge in the National court, (3) whether a transcript is required: SC 933 (2008) State v Manorburn Earthmoving Ltd at [13].

SUPREME COURT ACT

Section 3 Where a 7 judge bench delivered a decision in which the parties subsequently applied for further questions to be answered, on the second hearing the court was constituted by the same bench with another judge replacing a judge who had retired in the interval: SCR No.3 of 2000; Re Sitting Days of Parliament and Regulatory Powers of Parliament (2002) SC722.

A party seeking to disqualify a judge from sitting should not write to the Chief Justice or the Judge. The application should be made in open court in a transparent manner by motion supported by affidavits. A lawyer's first duty is to the court and it is no excuse for a breach of this rule of practice that the lawyer was acting on his client's instructions: SC921(2008) Peter Yama and others v Bank South Pacific Ltd & anor; Smugglers Inn & Anor v Christopher Burt & ors, Sakora, Gabi and Hartshorn J. J.

Section 4 (2) (b) & (c) Leave is required to argue any question of fact: Opai Kunangel v State [1985] PNGLR 144 (overruled on other grounds by Yakham v Merriam [1998] PNGLR 555. As to what are questions of law, mixed fact and law or questions of fact alone, see: Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz [1975] PNGLR 262 at 269 and Sidi Adevu v MVIT [1994] PNGLR 57. And see commentary to s14.

Section 5. This section does not give a single judge power to order that additional evidence be admitted on the appeal or to make any order which changes the fact situation to be brought before the Supreme Court: SC 794 (2005) Wau Ecology Institute v Registrar of Companies.

Section 6. Evidence can be admitted as �fresh� if it has become available since the trial or has come to the knowledge of the party applying since the trial and could not by reasonable means have come to his knowledge before that time: Abiari v State [1990] PNGLR 250. Evidence can be admitted as �fresh� if it is �fresh� in the judicial sense and it is relevant, admissible according to the rules of evidence and by it a reasonable man would be given cause to doubt: John Peng v [1982] PNGLR 331. A single judge may not admit fresh evidence in an appeal: SC794 (2005) Wau Ecology Institute & Ors v Registrar of Companies & Ors. Hearsay evidence will not be admitted. Evidence is not fresh simply because a party�s new lawyer failed to enquire with the previous lawyer concerning an important document: SC817 (2005) John Bokin & Ors v The State & 2 Ors. Where evidence is admitted with leave, there is a right by the opposing party to call rebutting evidence: Ted Abiari v The State (No. 2) [1990] PNGLR 432.

Section 6(2) The Supreme Court may substitute a finding on evidence before the trial judge: John Etape v MVIT [1994] PNGLR 596. The court can revisit the evidence before the trial judge and make findings of fact which may or may not be the same as those by the trial judge where a trial judge has misconstrued the evidence, has put lesser or greater emphasis on evidence or has overlooked evidence: Titus Makalminja v The State (2004) SC 726.

Section 7 Slip Rule Applications. Principles adopted in The Election Of Governor General (No.3) (2004) SC 752 at pp 17-18: (1) there is a substantial interest in the finality of litigation; (2) on the other hand any injustice should be corrected; (3) the court must have proceeded on a misapprehension of the fact or law; (4) the misapprehension must not be of the applicants making; (5) the purpose is not to allow rehashing of arguments already raised; (6) the purpose is not to allow new arguments that could have been put to the court below. The Court has an inherent jurisdiction to correct an error in its own order: Dick Mune v Paul Poto (1996) SC508. And see a survey of the history of the slip rule and examination of the principles in James Marabe v Tom Tomape (No.2) (2007) SC856 at [46-85] where the court held that, in addition to the establish principles, it must be satisfied that it made a clear and manifest, not an arguable, error of law or fact, on a critical issue, before setting aside its previous decision (at [84]).

Section 8(1) Gives the court an independent discretion to admit evidence which is not fresh if it thinks it necessary or expedient in the interests of justice to do so: Abiari v State [1990] PNGLR 331.

Section 8 (1) (e) The powers of the National Court under National Court Rules O 22 in relation to costs may be exercised by the Supreme Court pursuant to this provision: SC 651 Don Polye v Sauk Papaki & ors [2000] PNGLR 166 . Followed in Public Curator v Bank of South Pacific Ltd (2006) SC 832 and SC 875 (2006) William Moses v Otto Benal Magiten.

Section 9 Where the appellants had specifically instructed their lawyer that they wished to be present at the appeal and the appellants were not in court, the matter should be adjourned to enable the appellants to be in court: Kambere Yao and anor v The State (1990) SC 380.

Section 10(1)(a) See the commentary to O7 r4 on leave applications.

Section 14(1)(c) Question of fact. On this question Lord Denning said:

"On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If and in so far as those conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts".

See British Launderers' Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority (1949) 1 All E.R. 2111 at pp. 25 and 26. This same passage was referred to by the then Deputy Chief Justice, Prentice, in the case of Dillingham Corporation of New Guinea Pty. Ltd. v. Constantino Alfredo Diaz (1975) P.N.G.L.R. 26212 at p.270 and Kapi DCJ in Wahgi Savings & Loan Society Limited v Bank of South Pacific Limited (1980) SC185. Where leave has not been obtained a ground of appeal challenging a finding of fact is incompetent: Haiveta v Wingti (No.2) [1994] PNGLR 189. Where grounds of appeal involve questions of fact a Form 7 Application for Leave to Appeal must be filed in respect of those grounds and a Form 8 notice of appeal filed for those grounds involving questions of law or mixed fact and law. A notice of appeal should not contain questions of fact before leave is obtained: Yakham v Merriam [1998] 555.

Section 14 (3) (b) See notes to the Supreme Court Rules O7 r4 for notes on leave applications. The cases are not entirely consistent on the meaning of "interlocutory judgment". One line of authority has held that the test is to look at the nature of the application from which the ruling or judgment arises, the leading case being Shelley v PNG Aviation Services Pty Ltd [1979] PNGLR 119. Another line of authority holds that the test is, what is the effect of the order made, does it finally determine the issue between the parties? If it does the order is not interlocutory. The leading case for that proposition is Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145, followed, for example, in Philip Takori & ors v Simon Yagari & ors (2007) SC 905. Some subsequent cases have simply applied both tests (see for example SC 624 (1999) National Capital District Commission v PNG Waterboard Ltd & ors), but as is pointed out in SC 779 (2005) Oi Aba v MVIL applying both tests can sometimes lead to opposite results. Oi Aba v MVIL (supra) doubts that Shelley v PNG Aviation Services Pty Ltd (supra) is still good law. Summary judgment for damages to be assessed is an interlocutory judgment: Merriam v The State [2000] PNGLR 10; SC 663 (2001) NCDC v Namo Trading Ltd; NCD Water and Sewerage Ltd v Sam Tasion (2002) SC 696; cf. Ruma Construction Pty Ltd v Christopher Smith [1999] PNGLR 201. There is some discussion as to whether the decision in Ruma Construction Pty Ltd v Christopher Smith (supra) should be confined to its own facts, in Alfred Allen Daniel v Pak Domoi Ltd (infra). An order dismissing an action for want of prosecution is not an interlocutory order, nor is an ex parte order for default judgment, neither requiring leave to appeal: National Capital District Commission v PNG Water Ltd & JCK RTA Consulting Group (PNG) Ltd (1999) SC 624. Where part of a claim was finally disposed of by declaratory orders and the other part of the claim was subject to an order for assessment of damages no leave was required to appeal from the declaratory orders but leave was required to appeal from the interlocutory judgment for damages to be assessed: Alfred Alan Daniel v Pak Domoi Ltd (2004) SC 736. A stay order is not an injunctive order for purposes of section 14 (3) (b) (ii) of the Supreme Court Act and leave is required: SC 955 (2008) Vincent Kaupa and anor v Simon Puraituk and anor [2008] PGSC 37.

Section 14 (3) (b) (iii) can have no application until rules of Court are made: Oi Aba v MVIL (supra).

Section 14 (4) An order granting conditional leave to defend is an order refusing unconditional leave to defend: SC 843 (2006) The State v John Talu Tekwie.

Section 15 (1) (a). The power of a National Court judge to refer a question to the Supreme Court is to be exercised "where the reservation of any point will advance litigation or effectively dispose of the matter": Carter v Korobosea Developments Pty Ltd [1986] PNGLR 157 at 158. "Where there is an important point of law which is determinative of the application and in which there is a difference of opinion on the point among two or more judges of the National Court, it is highly desirable for reasons which are obvious, that the next judge before whom the same point arises for determination should reserve the point for the Supreme Court.":N 1777 (1998) Steven Pupune v Ubum Makarai. The question referred should determine the matter or advance the litigation. A judge considering referring a question to the Supreme Court should first find the facts from which the question arises: The State v John Rumet Kaputin [1979] PNGLR 532 (SC); Carter v Korobosea Developments Pty. Ltd [1986] PNGLR 157. For references under Constitution s18 see Order 4 rule 2. The Supreme Court cannot assume jurisdiction except in cases where there is a clear conflict and the National Court is left with no guidance whatsoever and the Court is left with no option but to make a reference: SC 95 (2008) Lupari v Somare at [31].

Section 16 (c) The court may give such judgment as ought to have been given in the first instance, although not relief sought on the appeal, if all parties have had full opportunity to be heard before it on the merits of the pleaded cause of action in the National Court: SC812 (2005) Papua Club Inc v Nusaum Holdings Ltd followed and applied in SC 876 (2006) C.L.Toulik & anor v Fincorp Ltd & anor. A party is not precluded from first raising a point of law on appeal, it is a matter for the discretion of the court, not a right. Special or exceptional circumstances must be established. The court is more disposed to allow a new argument in criminal appeals than in civil appeals: SC812 (2006) Papua Club Inc v Nusaum Holdings Ltd at [86-91] Ltd and dissenting from that view "The MVIT v James Pupune [1993] PNGLR 370 line of cases is to be preferred... an appeal court should not determine issues not first raised in the trial court, except with the consent of the parties or with special leave of the court in very exceptional circumstances such as want of jurisdiction": Chief Collector of Taxes v Bougainville Copper Ltd (2007)SC853. On appeal the Supreme Court can consider and grant judicial review in the same manner as the National Court: SC797 (2005) Mision Asiki v Provincial Administrator & Ors.

Section 17 This section operates so as to provide a right of appeal to any person whose interests are affected by, or who is aggrieved by the order of the court and who might have been joined as a party to the proceedings: Kitogara Holdings Pty. Limited v National Capital District Commission & Ors [1988-89] PNGLR 346. This includes a person who was not a party to the proceedings in the National Court but whose rights are directly affected by the decision: SC 798 Yanto & ors v Piu & ors. Where an appeal is not filed in 40 days there is no power in the Supreme Court to hear such a matter under the Supreme Court Act: Dillingham Corp v Diaz [1975] PNGLR 262; Shelley v PNG Aviation Service [1979] PNGLR 119; Avia Aihi v The State (No.1) [1981] PNGLR 281; Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88; State v Colbert [1988] PNGLR 138; Jeffrey Balakau v Ombudsman Commission of Papua and New Guinea & Public Prosecutor [1996] PNGLR 346. Section 17 applies to appeals pursuant to Supreme Court Rules Order 10: Jeffrey Balakau v Ombudsman Commission (supra); SC625 (1999) Garamut Enterprises Ltd v Steamships Trading Co Ltd. The 40 days runs in the vacation period in respect of both a Notice of Appeal and An Application for Leave to Appeal: New Zealand Insurance Co. Ltd v Chief Collector of Taxes [1988-89] PNGLR 522. Where the 40th day for appeal falls on a Sunday an appeal filed on the following Monday is filed within time: SC885 (2007) Tony Kila & Ors v Talibe Hegele & Ors. Once the Supreme Court has determined an appeal there is no further right of appeal. There is no power in the Supreme Court to grant special leave to appeal after refusing leave to appeal nor to extend the 40 days for appeal outside the 40 days: Avia Aihi v The State (No.1) [1981] PNGLR 1, Kidu CJ, Kearney DCJ, Greville-Smith, Andrew and Kapi J.;Application by Wili Kili Goiya [1991] PNGLR 170. Followed and applied in civil proceedings in SC812 (2005) PNG Water Board v Gabriel Kama & Ors. Entry of judgment is not a precondition to a right of appeal and failure to enter judgment does not affect the running of time under s17: Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88. For amendment of a notice of appeal see notes on Supreme Court Rules Order 7 rule 24 and Order 11 rule 11.

Section 18 See Order 7 rule 23.

Section 19. See commentary to Supreme Court Rules O3 r2(b). An application for a stay is not subject to the time limit imposed by section 17. An applicant is not required to show "special" or "exceptional circumstances", the discretion is unfettered; the applicant should show a reason or appropriate case. The proper test should be determined in a future case: The State v Victor Mollen [1997] PNGLR 193. A single judge does not have power to order costs on a stay application: PNG Pipes Ltd v Mujo Sefa [1998] PNGLR 551. The section cannot be used to obtain a stay of an order voiding an election under the Organic Law on Provincial and Local Level Government Elections: Jimson Sauk Papaki v Don Pom Polye [1999] PNGLR 1.

Section 21 Where a question of law has been referred to the Supreme Court it is not necessary to adjourn the trial pending a decision on the reference: The State v Tanedo [1975] PNGLR 395 per Prentice DCJ.

Section 22 "on an appeal against conviction, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed.": John Beng v The State [1977] PNGLR 115. The same principle applies on appeal by the Public Prosecutor again sentence: A/Public Prosecutor v Konis Haha [1981] PNGLR 205, Kidu CJ, Andrew, Kapi, Pratt, and Miles J. J. A person wishing to appeal on questions of fact must seek leave: Opai Kunungel v The State [1985] PNGLR 144. As to what is a question of fact see commentary to s14. A person wishing to appeal against sentence must seek leave to appeal: SC 772 (1999) Jim Kas v The State. This is the effect of the reasons published by Kapi DCJ and Sakora J. The majority, Amet CJ, Los and Woods J. J. held to the contrary but reasons have never been published. A trial judge should (a) identify the elements of the offence and establish whether each element is proven by the evidence; (b) identify discrepancies in the evidence and say if it is considered significant or not and give reasons. Not to do so may be an error of law: Deklyn David v State (2006) SC 881. There is no rule that a trial judge must reject all of a witness�s evidence because he finds some of it inconsistent. A judge is free to accept some evidence from a witness and reject other parts of the evidence, even if it relates to closely linked events: Ano Naime Maraga & 2 Ors v The State (2009) Sc�See also the commentary to section 16 and on amendment of the notice of appeal O11 r11.

Section 22 (d) was struck down as unconstitutional by the case of SC 772(1999) Jim Kas v The State, then declared Constitutional and reinstated by the case of SC850 (2006) Lionel Gawi v The State which held that the section regulates, it does not prohibit an appeal, it is sanctioned by s37(16) of the Constitution.

Section 23(4) The effect of section 23 is to confer an unfettered discretion on the Supreme Court to alter the sentence: Terence Kaveku v The State [1997] PNGLR 110. On an appeal against sentence the Supreme Court may use its power under this provision either to decrease or increases sentence: Lawrence Hindemba v The State (1998) SC 593. The appellant must show that an error occurred which has the effect of vitiating the trial judge's discretion on sentence. The trial judge may have made a mistake as to the facts, acted on a wrong principle of law, taken irrelevant matters into account or not taken relevant matters into account, or given too much or too little weight to a matter he should properly take into account. Even if no identifiable error can be shown, if a sentence is out all reasonable proportion to the circumstances of the crime the Supreme Court will infer an error must have occurred: Norris v The State [1979] PNGLR 605 per Kearney J. at 612-613. Each offender must have the sentence determined by the particular individual circumstances. The trial judge must make an assessment of the degree of participation in the crime. Not to do so may be an error in sentencing: SC 834 (2006) Ignatius Natu Pomaloh v The State.

Section 27. There is no power in the Supreme Court to grant special leave to appeal after refusing leave to appeal nor to extend the 40 days for appeal by application made outside the 40 days: Avia Aihi v The State (No.1) [1981] PNGLR 1, Kidu CJ, Kearney DCJ, Greville-Smith, Andrew and Kapi J.;Application by Wili Kili Goiya [1991] PNGLR 170. See also the commentary to sections 17 and 29.

Section 28. It is quite clearly established in this jurisdiction that where a trial judge has erred procedurally or has made procedural irregularities in the conduct of the trial, the appellate court has ordered that a new trial be conducted: Charles Bongapa Ombusu v The State (No.2) [1997] PNGLR 699 Amet CJ, Kapi DCJ, Los, Injia and Sawong J. J. Where the trial judge intervenes excessively into the evidence called the appeal against the conviction should be allowed and a new trial ordered: Gibson Gunure Ohizave v The State (1998) SC 595, Los Sheehan and Akuram J. J. where the trial Judge failed to address himself to the defendant's evidence that he had lost his memory and that therefore the trial judge had not heard his side of the story, and where on a retrial, there seems little prospect of a conviction, the appeal should be allowed and the accused acquitted, rather than order a retrial: Himson Mulas v R [1969-70] PNGLR 82. Where the trial Judge failed to note on the plea that the depositions, and the offender on his allocutus, raised self defence, the appeal should be allowed and a new trial ordered: The State v Kai Joip Dipa (2007) SC 868. Where the trial judge allows the whole of the evidence to be tendered by depositions with no oral evidence, including evidence on the contentious issues, he falls into error, the conviction should be set aside and a new trial ordered: Fred Bukoya v The State (2007) SC887

Section 29. In criminal proceedings the sentence is part of the conviction, "date of conviction means" conviction and sentence. The 40 days runs from the date on which sentence is imposed: SC808(2005) Mark Bob v The State at [24]. See also the commentary to sections 17 and 27.

Section 35 The court expressed the view in the case of Don Pomb Pullie Polye v Jim Sauk Papaki & ors [2000] PNGLR 166 that this section reflects an error in drafting. For costs orders see the note to Section 8 (1) (e). Where an application is an abuse of process and hopeless and the court is satisfied that costs have been thrown away by counsel for the applicant commencing proceeding improperly the Court may exercise its discretion to order costs against counsel personally: Don Pomb Polye v Jimson Sauk, Papaki [2000] PNGLR 166.