Because a reference settles the law without ordinary parties, the Rules make deliberate provision for the interests that will be affected to be heard.
Order 4 Rule 21
Before a reference has been set down for hearing, any person who has an interest in the proceedings may make application to the Court or to a Judge for leave to intervene.
“Before a reference has been set down for hearing.” Once it is set down, Rule 21 no longer provides a route.
Order 4 Rule 16 fixes when that can happen: a reference shall not be set down for hearing until the time allowed by an order under Rule 20(c) has expired, or until an application under Rule 17(a) has been determined. So the window is defined by any notice order made and, for a section 18(1) application, by the determination of standing.
Anyone whose interests may be affected should watch for the notice and move promptly.
Order 4 Rules 19 and 20
Rule 19: where (a) the Court, (b) the referrer, or (c) the Principal Legal Adviser desires to give notice of an application or reference to persons who may have an interest in the proceedings, the court may make an order for the purpose.
Rule 20: an order under Rule 19 shall include (a) the form of the notice; (b) publication of the notice; and (c) the time limited for filing an application to intervene.
Not only the Court. The referrer may want the affected interests before the Court so the question is fully argued, and the Principal Legal Adviser — on whom every application, reference and special reference must be served under Rule 13 — is often best placed to know who those interests are.
Note also section 19(4)(b) of the Constitution, which contemplates Rules of Court providing for the provision of counsel adequate to enable full argument before the Court of any question. Intervention is the main mechanism by which that happens.
Order 4 Rules 22 to 24
An application under Rule 21 shall be instituted by an application to intervene and shall —
(a) be entitled under the application or reference in question;
(b) be entitled with the name of the person making the application;
(c) state briefly the particulars relied upon;
(d) be in accordance with Form 4;
(e) be signed by the person making the application;
(f) be filed in the Registry.
Rule 23 — an application to intervene shall be supported by affidavit. Rule 24 — the application shall be served as soon as possible on all parties to the proceedings.
Rule 21 requires an interest in the proceedings, and Rule 22(c) requires the particulars relied upon. The affidavit should show what that interest is, how the answer to the question would affect it, and what the intervener would contribute that is not already before the Court.
An intervener who would simply repeat the referrer’s argument adds cost without adding argument. One who would put the contrary case, or an interest nobody else represents, is the kind of intervener Rule 19 exists to bring in.
Order 4 Rule 25
A party, whether original or by grant of leave to intervene, shall within 14 days of the date of service on a party of the originating proceedings or grant of leave to intervene, file an appearance in the proceedings and file and serve a Statement of Response in Form 4A, signed by the respondent parties or their lawyers, stating —
(a) in the case of an intervener, the date on which the party was given leave to intervene;
(b) for a section 18(1) application, whether the respondent party supports or opposes the standing of the applicant;
(c) for a reference under section 18(2) or section 19, the interpretation or answer for which the respondent party contends;
(d) for a section 18(1) application, within 14 days after receipt of notice that the Court has declared that the applicant has standing, to plead to the application in Form 1 and state succinctly the case for the intervener.
(e) the Statement of Response shall not exceed by more than one A4 page, the length of the application in Form 1, and the Registrar shall not accept longer statements for filing.
That is a refusal to file, not a criticism. Measure the application before drafting the response.
Rule 26: within 7 days of service on an applicant of a Statement in Response the applicant may file a reply.
What intervening changes
The referrer loses the free right to amend. Order 4 Rule 10: the referrer may amend if no party has intervened, without leave before hearing; but if a party has intervened, with leave of the court or of a Judge, on such conditions as are thought fit.
You become a party. With the obligations that follow — the Statement of Response under Rule 25, written submissions and extracts of argument under Order 11 Divisions 9 and 10, and a list of authorities under Rule 22 of that Order.
Sources
- Supreme Court Rules 2012 — O 4 rr 10–26; O 11 Divs 9–11; Forms 1, 4, 4A
- Constitution of the Independent State of Papua New Guinea — ss 18, 19
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.