The Supreme Court sits at the top of the National Judicial System. Almost every question about Papua New Guinea procedure ends, if it goes far enough, in this Court.
How it is established
(1) A Supreme Court of Justice is hereby established.
(2) It is a superior court of record and, subject to any Act of the Parliament, has the power to punish contempt of court.
The Court does not exist because Parliament created it. It is established by the Constitution, which means Parliament cannot abolish it or remove its core jurisdiction by ordinary legislation.
The Supreme Court Act (Chapter 37) does not create the Court. Its long title describes it as an Act to implement Subdivision VI.5.C of the Constitution by making further provision in relation to the Supreme Court of Justice. It fills in the machinery.
Four separate tracks
The single most common procedural error in this Court is bringing a matter on the wrong track. There are four, and they are not interchangeable.
| Track | Source | What it is for |
|---|---|---|
| Appeal | Supreme Court Act ss 4, 14, 22 | Challenging a National Court judgment where a right of appeal exists, with or without leave |
| Review | Constitution s 155(2)(b) | The inherent power to review all judicial acts of the National Court — used where no appeal lies, or where the right to appeal has been lost |
| Reference | Constitution ss 18, 19 | Questions of interpretation or application of a Constitutional Law |
| Original | Constitution s 18(1) | Constitutional interpretation, to the exclusion of other courts |
Review under section 155(2)(b) is not a second chance at an appeal. It becomes available where there is no right of appeal, or where the right existed but has been lost — typically by missing the 40-day limit.
In Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 the Court held that section 155(2)(b) invests it with an unfettered discretionary jurisdiction to hear a matter although the applicant has lost the right to appeal — but that the discretion should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, and the onus is on the applicant.
The one thing only this Court can do
Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
18(2) — where such a question arises in any other court or tribunal, that court shall, unless the question is trivial, vexatious or irrelevant, refer it to the Supreme Court.
A litigant in the National Court who raises a genuine question about what a Constitutional Law means is not asking that Court to decide it. The National Court must refer the question, and the Supreme Court answers it.
That is different from a claim to enforce a right under sections 57 and 58, which the National Court hears in the ordinary way. Interpretation is reserved; enforcement is not.
The same judges, sitting differently
(1) The Supreme Court consists of the Chief Justice, the Deputy Chief Justice and the other Judges of the National Court.
(2) For any hearing, the Court consists of at least three Judges.
Papua New Guinea does not appoint a distinct panel of Supreme Court judges. The Supreme Court is the Judges of the National Court, sitting in benches of three or more.
Section 2 of the Supreme Court Act supplies the necessary safeguard: a Judge shall not sit as a member of the Supreme Court if they have previously adjudicated on the merits of the case — though a Judge who gave only an interlocutory judgment, or another judgment not going to the merits, is not precluded.
See who the judges are and how many sit.
What “superior court of record” means
Its proceedings are recorded, and its decisions bind. A decision of the Supreme Court on a point of law binds the National Court and every court below it. That is why this index of authority matters: a Supreme Court holding settles the question until the Court itself departs from it.
It can punish contempt. Section 160(2) gives the power expressly, subject to any Act of the Parliament.
Under the Supreme Court Act, the principal seat of the Court is at the place the Head of State, acting on advice, determines, and the Court may sit at such other places and times as are appointed. In practice the Court sits principally at Waigani, with circuit sittings elsewhere.
Where a matter is heard does not change the Court’s powers. A bench sitting on circuit is the Supreme Court.
Where the procedure comes from
The Supreme Court Act (Chapter 37) — the right of appeal, time limits, the Court’s powers, and the criminal appeal provisions.
The Supreme Court Rules 2012 — the forms and the step-by-step procedure. They replaced the 1984 Rules and commenced on 19 December 2012.
If you are considering an appeal, the first two questions are always whether you need leave and how long you have. Getting either wrong is usually fatal, and the time limit cannot be extended after it has run.
On the courts generally, see Go to Court; on the court below, see the National Court.
Sources
- Constitution — ss 18, 19, 155, 160, 161, 162
- Supreme Court Act (Chapter 37) — ss 2, 4, 14, 22
- Supreme Court Rules 2012
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81
The PacLII page for the Supreme Court Act (Chapter 37) offers the Act as a PDF rather than reproducing it in HTML. Section text quoted here is taken from the Act itself.
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.