The Supreme Court is the final court. Litigants who have lost there frequently ask what remains, and the honest answer is: very little, and only within a short window.
The starting point
The Supreme Court is the final court of appeal. There is no court above it and no further appeal from it.
The inherent power conferred by section 155(2)(b) is to review all judicial acts of the National Court. It is not a power to review the Supreme Court’s own decisions.
An application framed as a section 155(2)(b) review of a Supreme Court judgment misreads the provision. See when review is available.
Order 11 Rule 32
(1) An application of any nature made after disposal of a proceeding shall be filed and served in writing within 21 days of the order disposing of the proceeding.
(2) A ‘slip rule’ application shall set out the nature of the slip and the finding that the applicant contends the Court should have made.
(3) A ‘slip rule’ application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.
Leave comes from a Judge of the Court making the order, or from that Court — the bench that decided the matter, or a member of it. That is a deliberate filter against re-argument dressed up as correction.
The limits
Reopen the merits. Disagreement with the result is not a slip.
Admit a new argument. A point counsel did not take is not a slip.
Receive new evidence. Additional evidence is governed by Order 7 Division 20 and must be applied for in the appeal, on notice filed not later than 21 days before the hearing under Rule 57.
Extend the 21 days. Rule 32(1) applies to an application of any nature made after disposal, so an application to extend is itself caught by it.
Outside the Rules
Where the matter was remitted. If the Supreme Court remitted the case in whole or in part under section 16(d) of the Supreme Court Act, or ordered a new trial under section 16(e), the substantive dispute continues in the National Court and can be fought there.
Where the decision was on a discrete procedural point. An appeal dismissed as incompetent is not a decision on the merits, and the underlying rights may survive — though the practical routes will be narrow.
Where the law itself is the problem. A constitutional question can be brought before the Court by a special reference under section 19 of the Constitution by an authority listed in section 19(3), and legislation can be amended.
A different situation
An order of a single Judge is a different matter from a judgment of the full Court.
Rule 25 — a party dissatisfied with a direction or order given by a Judge under these rules or s 5 of the Act may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.
Rule 26 — proceedings under Rule 25 shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.
Section 5(3) of the Act says the same thing from the statutory side: a direction or order made by a Judge under section 5(1) may be discharged or varied by the Supreme Court.
Order 5 Rule 17: a decision to grant or a refusal to grant leave is final and shall not be subject to further review. That is an express exclusion, and it applies to both sides.
The time to act is earlier
The composition of the bench. Section 2 of the Act disqualifies a Judge who has previously adjudicated on the merits of the case. Raise it at a Directions Hearing under Order 13 Rule 8, not after the decision.
Consent under section 3. Where a Judge becomes unable to continue, either party may decline to consent to the remaining Judges giving judgment, in which case the appeal shall be reheard. Once consent is given it cannot be withdrawn after an adverse result.
The relief sought. Order 7 Rule 9(d) requires the notice of appeal to state what judgment the appellant seeks in lieu. The Court cannot be asked afterwards to give relief that was never sought.
Consequential orders. Ask for them when judgment is delivered, while the Court is still seised of the matter — a stay pending a remitted hearing, the release of security, the return of exhibits under Order 7 Rule 32.
What to tell a client
A client who has lost in the Supreme Court should be told plainly that the litigation is over, subject only to a slip rule application within 21 days and to anything remitted for further hearing.
Encouraging repeated applications after a final decision wastes the client’s money and exposes them to costs. Order 12 gives the Court a general discretion over costs, and Order 12 Rule 5(2)(f) allows costs to be payable by a lawyer in accordance with Rule 11.
Sources
- Supreme Court Rules 2012 — O 5 r 17; O 7 rr 52–59; O 11 rr 25, 26, 32; O 12 rr 5, 11
- Constitution of the Independent State of Papua New Guinea — ss 18, 19, 155
- Supreme Court Act (Chapter 37) — ss 5, 16
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.