Leave for review is discretionary, and the discretion is exercised against a background the applicant must confront: they are asking the Court to hear a matter the ordinary process no longer allows.
Avia Aihi
Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 established that a person who has lost the right of appeal may nevertheless invoke the Supreme Court’s inherent power to review all judicial acts of the National Court under section 155(2)(b) of the Constitution.
The jurisdiction is real. It is also discretionary, and the discretion is not exercised merely because an appeal is no longer available.
The three questions
1. Why is review the only route? Where a right of appeal existed and was not exercised, explain what happened — and be candid. A deliberate decision not to appeal is a very different thing from a notice lodged in custody that never reached the registry.
2. Is there real merit? The Court will not exercise a discretionary jurisdiction to allow an unmeritorious challenge. Identify the specific error and why it matters to the outcome.
3. What are the circumstances that justify it? A serious injustice, a decision reached without jurisdiction, a fundamental defect in the process, a liberty at stake.
Order 5 Division 1 fixes no general time limit for a review application — compare Rule 14, which requires an election petition review leave application to be filed and served within 14 days after the decision.
The absence of a limit is not an invitation to delay. An applicant coming years after the decision, with no explanation, is asking the Court to reopen a matter everyone else has treated as closed.
Every argument must have been raised below
Application by Herman Joseph Leahy [2006] PGSC 21; SC855 requires, for each argument advanced on review, that it was raised in the National Court.
This is stricter than the position on appeal, where Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812 allows a point of law not raised at 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.
On review there is no such route. A ground that was not argued below is not available, however good it is. Go through the transcript and the submissions filed in the National Court, and be able to point to where each proposed ground was raised.
How the application is made
Where the application lies with leave only, the provisions of Order 7 Division 2 shall be followed, substituting “applicant” for “appellant” and “application” for “appeal”. An application for leave for review shall be made before a Judge. — Supreme Court Rules 2012.
So the application follows the Order 7 Division 2 leave procedure, in Form 7 adapted, signed and filed, and served under Rule 5 of that Division.
An application for leave by a prisoner who is not legally represented may be made in Form 2 to the Second Schedule, and Order 7 Rule 62 — the Public Solicitor provision — applies to an application for leave and to an application for review from sentence of death.
What to put on affidavit
The decision under review — exhibit the order and the reasons.
The chronology — the decision, the expiry of the appeal period, and every step since.
The explanation for not appealing — with documents. Where a notice was handed to an officer in charge under section 32(2) of the Supreme Court Act and did not reach the Registrar, that is powerful material.
The proposed grounds, and for each, where it was raised in the National Court.
The consequences of the decision standing — liberty, livelihood, land, a business.
Any prejudice to the other side from the delay, and how it can be answered.
Order 5 Rule 11 requires an election petition review leave application to be supported by an affidavit of the applicant setting out the circumstances and annexing the petition, judgment and order. Follow the same approach in a general review.
The consequence
For an election petition review, Order 5 Rule 17 is emphatic: a decision to grant or a refusal to grant leave is final and shall not be subject to further review.
For a general review, section 10(2) of the Act — allowing an appellant refused by a Judge to apply to the Supreme Court to have the matter determined by that Court — is expressed to apply to the matters in section 10(1): leave to appeal, extension of time, and bail.
Order 11 Rule 25 offers a route in the Rules: a party dissatisfied with a direction or order given by a Judge under these rules or s 5 of the Act may, upon notice, filed and served within 21 days, apply to the Court which may make such order as appears just, instituted by notice of motion filed in the substantive proceedings seeking the same orders as were sought before the single Judge.
Sources
- Supreme Court Rules 2012 — O 5 rr 1–6, 11, 14, 17; O 7 Div 2, r 62; O 11 rr 25, 26
- Constitution of the Independent State of Papua New Guinea — 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.