The mechanics are set out in Order 5 Division 1, and they are short. The difficulty in a review application is rarely the form; it is establishing the entitlement to invoke the jurisdiction.
Order 5 Rules 1 and 3
An application to the court under Constitution, s 155(2)(b) lies with leave only, or without leave. Where the application lies with leave only the provisions of Order 7 Division 2 shall be followed, substituting the word “applicant” for the word “appellant” and the word “application” for the word “appeal”.
An application for leave for review shall be made before a Judge.
Division 2 is the leave-to-appeal procedure. Rule 3: an application for leave shall be made by an application. Rule 4 sets out what it must contain and requires it to be in accordance with Form 7, signed, and filed. Rule 5 deals with service. Rule 6 gives 21 days from the grant of leave to file the substantive document.
Reading those rules with the substitutions Rule 1 directs gives the leave procedure for a review. See what to show for leave.
Order 5 Rule 4
Where the application lies without leave, or where leave has been granted, the application for review shall be instituted by an application to review and shall —
(a) be entitled under the section of the Constitution by which it is made together with the year and number of the application;
(b) be entitled with the name of the person making the application;
(c) state briefly particulars of the judicial act to be reviewed;
(d) the order sought in lieu thereof;
(e) be in accordance with Form 5;
(f) be signed by the person seeking the review or his lawyer;
(g) be filed in the registry.
“The judicial act to be reviewed” — not “the judgment appealed from”. Identify the act precisely: the decision, its date, the Judge, and the proceeding.
Section 155(2)(b) speaks of all judicial acts of the National Court, which is wider than judgments. But an application that does not identify with precision what act is under review gives the Court nothing to review.
What the application should say
Rule 4 does not require grounds in terms. In practice a review application must show why the Court should exercise a discretionary jurisdiction, and that requires the same discipline as grounds of appeal.
Order 5 Rule 19, dealing with election petition reviews, is a useful model: the application shall state whether the whole or part only and what part of the judgment is being reviewed; state briefly but specifically the grounds relied upon in support of the review; and state what judgment, order or relief the applicant seeks in lieu of that decision reviewed.
Draft the general review application on the same lines.
Application by Herman Joseph Leahy [2006] PGSC 21; SC855 requires, for each argument advanced, that it was raised in the National Court.
That is stricter than the position on appeal. Check each proposed ground against the record before including it.
Order 5 Rule 5
The review shall be served as soon as possible on all parties to the National Court proceedings from which the judicial act to be reviewed arises.
Note the breadth: all parties to the proceedings below, not merely those affected by the relief sought. That is wider than Order 7 Rule 13 for appeals.
And note the standard: as soon as possible.
Order 5 Rule 6
A Judge may grant leave to proceed, give any directions desirable to prepare the matter for hearing or to preserve the interests of the parties pending hearing of the review, or make any other interlocutory order which seems just, which is not determinative of the issues under review.
Applications are made in Form 4 under Order 13 Rule 15, with a concise statement of the Court’s jurisdiction.
The filing of an application for review does not operate as a stay of enforcement of the decision of the National Court, subject of the review.
The same position as section 19 of the Supreme Court Act for appeals. If protection is needed, apply for it. See stay applications.
Order 5 Rule 2
An application for leave by a prisoner who is not legally represented may be made in Form 2 to the Second Schedule. The provisions of Order 7 rule 62 shall apply to an application for leave and an application for review from sentence of death.
Rule 62 requires the Duty Judge, where a person appeals or applies for leave to seek review in any criminal proceedings, to inquire as to whether the appellant or applicant has a lawyer, and if not to direct the Registrar to notify the Office of the Public Solicitor that at the next mention a senior lawyer is required to appear and state whether legal aid will be provided.
The Duty Judge shall also consider whether to give a direction to the Public Solicitor under section 177(2)(b) of the Constitution. An unrepresented prisoner should therefore say so at the first opportunity rather than attempting to comply with Form 5.
Getting listed
For matters other than appeals, the index and the application book or reference book shall be prepared as closely as possible, and as far as relevant, to the provisions in Order 7 Divisions 14 and 15. And no substantive matter shall be added to the Callover List unless a book is filed.
So a review requires a book prepared on the appeal-book model before it can be listed. See the appeal book.
Sources
- Supreme Court Rules 2012 — O 5 rr 1–6, 19, 38; O 7 Div 2; O 13 rr 7, 15; Forms 4, 5, 7
- Constitution of the Independent State of Papua New Guinea — s 155(2)(b)
- Application by Herman Joseph Leahy [2006] PGSC 21; SC855
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.