The general rule is three. Section 3 deals with what happens when one of the three cannot finish, and it gives the parties a say.
Constitution section 161(2)
For any hearing, the Supreme Court consists of at least three Judges.
Three is the ordinary bench; five is constituted where the question is of particular importance. An even-numbered bench would risk the situation section 7(2) of the Supreme Court Act addresses — opinions divided with no majority.
See how many judges sit.
Continuation despite absence
Where in the course of an appeal before the Supreme Court, and at any time before the delivery of the judgment, a Judge hearing the appeal is unable, through illness or any other cause, to attend the proceedings or otherwise to exercise his functions as a Judge —
(a) the hearing of the appeal shall, subject to Subsection (2), continue; and
(b) the judgment shall be given by the remaining Judges; and
(c) the Court shall be deemed to be duly constituted.
Where —
(a) either party does not agree to the remaining Judges continuing to hear the appeal; or
(b) in any case, there is only one Judge remaining to hear the appeal,
the appeal shall be reheard.
Four points
It operates only after the appeal has begun. “In the course of an appeal”, and before the delivery of the judgment. It does not authorise convening a bench of two.
The cause is broad. Illness or any other cause — death, retirement, appointment elsewhere, or any inability to exercise the functions of a Judge.
Either party can insist on a rehearing. Subsection (2)(a) gives each party a veto: it is either party, not a majority of parties, and no reason need be given.
One Judge is never enough. Subsection (2)(b) is absolute. Even with the parties’ consent, a single Judge cannot determine an appeal.
A rehearing means the appeal is argued again, before a fresh bench, with the delay and cost that involves. A party invited to consent should weigh that against whatever advantage is thought to lie in a rehearing.
In practice, where the appeal has been fully argued and only judgment remains, most parties consent. Where the absent Judge asked the questions that shaped the argument, they may not.
And how judgment is given
(1) Subject to Subsection (2), a judgment of the Supreme Court shall be in accordance with the opinion of the majority of the Judges present.
(2) If in an appeal the opinions of the Judges are divided in such a way that there is no majority opinion, the judgment appealed against stands.
So where section 3 leaves two Judges who then disagree, there is no majority and the judgment below stands. See divided opinions.
A different question entirely
Section 3 is about the composition of the Court determining an appeal. It has nothing to do with the extensive powers a single Judge exercises in an appeal.
Section 5(1) — where an appeal is pending, a Judge may make a direction not involving the decision on the appeal; an interim order to prevent prejudice to the claims of the parties; an order for security for costs in civil proceedings; an order dismissing an appeal for default in furnishing security; or an order admitting an appellant to bail. Such an order shall be deemed to be a direction or order of the Supreme Court, and may be discharged or varied by the Supreme Court.
Section 10(1) — the powers to give leave to appeal, to extend the time within which notice of appeal or of an application for leave may be given, and to admit an appellant to bail may be exercised by a Judge in the same manner as by the Court. Section 10(2): where a Judge refuses such an application, the appellant may apply to the Supreme Court to have the matter determined by that Court.
Order 11 Rule 25 of the Supreme Court Rules 2012: 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, 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: such proceedings shall be instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.
Section 2
(1) Subject to Subsection (2), a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated (whether on appeal or otherwise) on the merits of the case.
(2) A Judge is not precluded from sitting as a member of the Supreme Court in cases where he has given an interlocutory judgment only, or any other judgment not going to the merits of the case.
A Judge who tried the case cannot sit on the appeal. A Judge who refused an adjournment, gave directions, or decided a security application in the same matter is not disqualified by subsection (2) — those are judgments not going to the merits.
The same distinction runs through section 14(3)(b) of the Act, which requires leave to appeal an interlocutory judgment. Where a party considers a Judge should not sit, the point should be raised at the earliest opportunity — at a Directions Hearing under Order 13 Rule 8, not after judgment.
Sources
- Supreme Court Act (Chapter 37) — ss 2, 3, 5, 7, 10
- Constitution of the Independent State of Papua New Guinea — ss 161, 162
- Supreme Court Rules 2012 — O 11 rr 25, 26
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.