Section 7 is two sentences long and disposes of the question completely. What it does not do is give an appellant the benefit of the doubt.
The provision
(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.
Subsection (1)
On a bench of three, two Judges agreeing produce the judgment of the Court. On a bench of five, three do.
A dissenting judgment is delivered and published, and it carries no operative force — though a well-reasoned dissent may be influential in a later case where the point comes up again.
Note the words Judges present. Where section 3 has operated because a Judge became unable to continue, the majority is calculated among those remaining.
Subsection (2)
Where there is no majority, the appeal does not succeed. It is not sent back, not reheard, and not determined in the appellant’s favour: the judgment appealed against stands.
The practical effect is that the burden of persuading a majority sits squarely on the appellant. A deadlocked Court is a loss for the party who brought the appeal.
Not by two against one — that is a majority. It arises where the three Judges reach three different conclusions. One would dismiss the appeal; one would allow it and enter judgment; one would allow it and order a new trial. No two agree on the outcome, so there is no majority opinion.
It can also arise where two Judges agree the appeal should be allowed but disagree entirely on the relief, so that no single order commands two votes.
Section 3 and section 7 together
Under section 3, where a Judge becomes unable to continue before the delivery of the judgment, the hearing continues, the judgment shall be given by the remaining Judges, and the Court shall be deemed to be duly constituted — unless a party does not agree, or only one Judge remains, in which case the appeal shall be reheard.
So a party may consent to two Judges continuing. If those two then disagree, there is no majority, and by section 7(2) the judgment below stands.
That is a consideration for an appellant asked to consent under section 3(2)(a). Consenting converts a possible rehearing into a possible loss by deadlock. See fewer than three judges.
Why benches are constituted in odd numbers
An even-numbered bench makes deadlock likely rather than exceptional, and deadlock always favours the respondent. Constituting the Court in odd numbers — three, or five in an important matter — means that on a straight division there will normally be a majority.
Under section 161(2) of the Constitution the Court consists of at least three Judges for any hearing, and Order 13 Rule 4 leaves the assignment of Judges to the Chief Justice, in the Annual Circuit Calendar and otherwise having regard to the volume of appeals and the urgency or importance of an issue to be decided.
What it means for argument
An appellant needs a majority for a single outcome, not merely for the proposition that the judgment below was wrong. Two Judges who agree the primary Judge erred but disagree about what should follow produce no majority, and section 7(2) then leaves the judgment standing.
Two practical consequences follow. Ask for one clear order — Order 7 Rule 9(d) of the Supreme Court Rules 2012 requires the notice of appeal to state what judgment the appellant seeks in lieu, and a moving target invites division. And plead alternatives in a considered order, so that a Judge who will not go the whole way still has something to agree with.
Working out what was decided
What order did a majority support? That is the judgment of the Court, whatever the reasoning.
Did a majority agree on the reasoning? Two Judges may agree the appeal should be dismissed for entirely different reasons. Only reasoning shared by a majority carries weight as authority.
Was any point decided unanimously? Points on which the whole Court agrees, even in a divided decision, are the most secure part of it.
When citing such a case, identify which Judges said what. Order 14 requires case references in submissions to be to the authorised report of the case or, if not reported, to its SC or N number, and Order 11 Rule 14(1) requires citation with precision to the page and paragraph.
One limit on subsection (2)
Section 7(2) speaks of the judgment appealed against. In proceedings that are not appeals — a reference under Constitution section 18 or 19, or an application to enforce a constitutional right — there is no judgment below to stand.
Section 7(1) still applies: the judgment of the Court is in accordance with the opinion of the majority of the Judges present. Where a reference produces no majority on a question, the practical result is that the question is not answered by the Court’s opinion.
Sources
- Supreme Court Act (Chapter 37) — ss 3, 7, 16
- Constitution of the Independent State of Papua New Guinea — ss 18, 19, 161(2)
- Supreme Court Rules 2012 — O 11 r 14; O 13 r 4; O 14
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.