This jurisdiction is constitutional, not statutory. Parliament did not create it and cannot remove it by ordinary legislation.
Constitution section 155(2)
The Supreme Court —
(a) is the final court of appeal; and
(b) has an inherent power to review all judicial acts of the National Court; and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.
In Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 the Court held (per Kidu CJ, Kearney Dep CJ and Andrew J) that section 155(2)(c) is a separate and distinct grant of jurisdiction from that granted in section 155(2)(b).
The appellate jurisdiction in paragraph (a) is exercised through the Supreme Court Act. The review power in paragraph (b) stands on its own.
Two situations
Avia Aihi: section 155(2)(b) invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal and an application for leave to appeal although the applicant has lost his right to do so.
The discretion should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being upon the applicant.
Application by Herman Joseph Leahy [2006] PGSC 21; SC855: the decision of the National Court to dismiss an objection to and accept an indictment is reviewable under section 155(2)(b), there being no right of appeal and no other way an accused person may bring the matter to the Supreme Court — provided the accused can show:
(a) there is an important point of law to be determined; and
(b) it is not without merit.
Applying Re Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138) [1987] PGSC 4; [1987] PNGLR 433.
Review does not sit alongside the appeal as a matter of choice. It becomes available because the appeal route is closed — either because the Act gives no appeal, or because the right was lost.
A litigant who has a live right of appeal should exercise it. Bringing a review instead invites the objection that the proper procedure was available and not used.
The three questions in Leahy
Before proceeding with a review under section 155(2)(b), three matters must be satisfied in relation to each argument:
(a) Is it raised in one or more grounds of review?
(b) Was it raised in the National Court?
(c) Is it a proper review point?
If the answer is yes to all three, the Court is obliged to determine the issue. If no to any, the Court will consider whether it is appropriate to address the argument.
A point not taken below is in difficulty on review. That is a real constraint on using review to run a case differently the second time.
Compare the position on appeal, where a new point of law may sometimes be raised: in Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812 the Court held that an appellant can raise an issue of law before the Supreme Court that was not raised at the trial, provided it is set out in the notice of appeal, does not concern a question of fact only, and the leave of the court is obtained to argue it.
Order 5 of the Rules
Order 5 of the Supreme Court Rules 2012 governs review of National Court decisions. Division 1 deals with general review; Division 2 with election petition reviews.
Order 11 applies to review proceedings as it does to appeals — notice of appearance, address for service, service, written submissions and the rest. See applying for review.
What counts as a judicial act
Section 155(2)(b) speaks of all judicial acts of the National Court — not judgments, not final orders, but judicial acts.
Leahy illustrates the breadth. The decision reviewed was a ruling dismissing an objection to an indictment and accepting it — a step in a criminal trial, not a final determination of anything. It was nonetheless a judicial act, and reviewable, because no appeal lay from it and there was no other way to bring it before the Supreme Court.
The Supreme Court Act gives a convicted person rights of appeal against conviction and sentence under section 22. It says nothing about rulings made during a trial.
An accused person aggrieved by such a ruling therefore has no appeal, and section 155(2)(b) is the only route — on the Leahy criteria, and subject to the requirement that the point was raised in the National Court.
What review cannot do
It cannot waive a statutory requirement. Avia Aihi holds that section 155(4) does not empower the Court to waive non-compliance with the time limit. Section 155(2)(b) does not do so either — it provides a different jurisdiction, on a different test.
It does not reach the Supreme Court’s own decisions. Section 155(2)(b) speaks of judicial acts of the National Court. In Trawen v Kama [2010] PGSC 15; SC1063 the Court held that a slip rule application cannot be made under section 155(2)(b), because that subsection concerns review of the National Court, and that section 155(4) likewise does not provide the opportunity to reopen a Supreme Court decision.
It is discretionary throughout. Even where the criteria are met, the Court is exercising a discretion.
Sources
- Constitution — ss 37(15), 155
- Supreme Court Rules 2012 — O 5; O 11
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81
- Application by Herman Joseph Leahy [2006] PGSC 21; SC855
- Re Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138) [1987] PGSC 4; [1987] PNGLR 433
- Trawen v Kama [2010] PGSC 15; SC1063
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.