These are two different jurisdictions with different sources, different tests and different consequences. Choosing the wrong one is one of the most common and most costly errors in Supreme Court practice.
The essential difference
| Appeal | Review | |
|---|---|---|
| Source | Supreme Court Act ss 4, 14, 22 | Constitution s 155(2)(b) |
| Nature | A right, where the Act gives one | An inherent power, exercised as a discretion |
| When available | Where the Act confers a right of appeal | Where there is no right of appeal, or the right has been lost |
| Time | 40 days — ss 17, 29 | No fixed statutory period, but delay counts against the applicant |
| Threshold | None, if the appeal lies as of right | Exceptional circumstances; substantial injustice manifest, or a case of special gravity |
| Onus | On the appellant to show error | On the applicant, to justify the exercise of the discretion and then to show error |
| Governed by | Order 7 of the Rules | Order 5 of the Rules |
Avia Aihi
The applicant had lost the right to appeal by failing to give notice within the statutory period. The Supreme Court held:
The time limit validly regulates the right to review of conviction and sentence “according to law” guaranteed by Constitution section 37(15). The right to appeal or to apply for leave is lost on failure to comply.
Section 155(4), which confers an inherent jurisdiction to make such orders as are necessary to do justice, does not empower the Court to waive non-compliance with the time limit. (Greville Smith and Kapi JJ dissenting.)
Section 155(2)(b), however, invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal or an application for leave although the applicant has lost the right to appeal.
That 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.
Section 155(4) will not excuse a missed deadline. Section 155(2)(b) may nonetheless allow the matter to be heard — but as a separate jurisdiction, on a demanding test, and not as of right.
The practical consequence is that a litigant who is out of time does not apply for an extension of the appeal period. That door has closed. They apply for leave to review.
See missing the deadline and applying for review out of time.
Review where the Act gives no appeal
The National Court dismissed an objection to, and accepted, an indictment. There was no right of appeal and no other way the accused could bring the matter to the Supreme Court.
The Court held the decision is reviewable under section 155(2)(b), provided the applicant can show:
(a) there is an important point of law to be determined; and
(b) it is not without merit.
Applying Supreme Court Review No 5 of 1987; Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PGSC 4; [1987] PNGLR 433. The applicant satisfied both criteria and leave was granted.
Leahy also held that before proceeding with a review, three matters must be satisfied in relation to each argument advanced:
(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 it.
Limb (b) is the one that catches practitioners: a point not taken below is in difficulty on review.
The tests are not the same
Where the right to appeal was lost — Avia Aihi: exceptional circumstances, substantial injustice manifest or a case of special gravity.
Where no right of appeal ever existed — Leahy: an important point of law and not without merit.
The first is harder, and deliberately so. A litigant who let the appeal period lapse must overcome their own default; a litigant for whom the Act simply provides no appeal need not.
Rehearing compared with review
Section 6(1): an appeal shall be by way of rehearing on the evidence given in the court below, subject to the Court’s right to allow fresh evidence where the justice of the case warrants it, and to draw inferences of fact.
Section 6(2): for hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
See what rehearing means.
Review is directed at the judicial act — whether the decision below was one the Court should be asked to disturb — rather than at a fresh consideration of the whole case. The Leahy requirement that the point have been raised below reflects that.
On the procedure, see applying for review and Order 5 of the Supreme Court Rules 2012.
Sources
- Constitution — ss 37(15), 155(2)(b), 155(4)
- Supreme Court Act (Chapter 37) — ss 4, 6, 14, 17, 22, 29
- Supreme Court Rules 2012 — O 5, O 7
- 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
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.