Refusal of leave by a single Judge is a serious setback but not necessarily a final one. The Act provides a route to the full Court, and where that fails there may still be the review jurisdiction.
The statutory route
Where a Judge refuses an application in relation to a matter specified in Subsection (1), the appellant may apply to the Supreme Court to have the matter determined by that Court.
It is not an appeal. The Court determines the matter itself. The applicant does not have to establish that the Judge erred; the question is whether leave should be granted.
It covers only the section 10(1) matters — leave to appeal, extension of time, and admission to bail. Orders made under section 5 take a different route: subsection (3) allows the Court to discharge or vary them.
The right belongs to the appellant. The subsection speaks of the appellant applying, reflecting that these are the applicant’s own applications.
The difficulty nobody warns you about
Section 17 requires notice of appeal, or notice of the application for leave, within 40 days after the date of the judgment — or within such further period as a Judge allows on application made within that period of 40 days.
If leave is refused on day 35, a section 10(2) application to the Court will not be heard inside the remaining five days. And an extension under section 17 must have been applied for within the original 40 days.
The practical protections are: file the leave application early, and, where the position is arguable, file a Form 8 notice of appeal at the same time so that an appeal is on foot for the grounds that lie as of right.
Where refusal is a realistic outcome, have the application to the Court drafted before the single Judge rules. Filing it the same week is the only way the timing works.
What to put before the Court
The Court is deciding whether leave should be granted, so the material must still satisfy Order 7 Rule 4: that an appeal lies with leave, and the nature of the case, the questions involved and the reason why leave should be given.
What changes is emphasis. The single Judge has now identified what troubled them, and the application to the Court should meet that directly rather than repeat the original submission.
Where the Judge gave reasons, exhibit them. The Court will want to see what was decided and why.
An application framed as “the learned Judge erred in refusing leave” misdescribes the jurisdiction. The Court is not sitting in review of its own single Judge; it is determining the matter. Argue for leave, not against the Judge.
When the Court refuses too
Where the full Court has refused leave, the appeal is over. There is no further appeal within the Act, and a review of a Supreme Court decision is not available in the ordinary way.
The slip rule corrects a glaring error — clerical, an accidental omission, or a misapprehension of fact or law — and must be brought before the same Judge or Judges. It is not a route to reargue leave.
Where there was no right of appeal at all — as distinct from an appeal for which leave was sought and refused — Constitution section 155(2)(b) may be available.
In Application by Herman Joseph Leahy [2006] PGSC 21; SC855 the Court held that a decision is reviewable under section 155(2)(b) where there is no right of appeal and no other way to bring the matter to the Supreme Court, provided the applicant shows an important point of law to be determined and that it is not without merit.
Where the right to appeal existed but was lost, the applicable test is the stricter one in Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81: exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, with the onus on the applicant.
The costs of a refused application
The Supreme Court has the same powers as the National Court in relation to costs, by the combined effect of sections 6(2) and 8(1)(e) of the Act — Moses v Magiten [2006] PGSC 25; SC875, which also holds it is appropriate to draw on Order 22 of the National Court Rules as a guide.
An unsuccessful leave application will ordinarily carry a costs order. Where the conduct of the application has been improper, unreasonable or blameworthy, costs may be ordered on an indemnity basis — Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015.
Sources
- Supreme Court Act (Chapter 37) — ss 5, 6, 8, 10, 17
- Supreme Court Rules 2012 — O 7 rr 1–6
- Constitution — s 155(2)(b)
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81
- 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.