Review is the jurisdiction most often reached for by a litigant who has lost the right of appeal. It exists, it is genuine, and it is not a second chance at an appeal.
Constitution section 155(2)(b)
The Supreme Court has an inherent power to review all judicial acts of the National Court.
“Inherent.” The power does not come from the Supreme Court Act, and it is not confined by the appeal provisions in that Act. That is why review is available where an appeal is not.
“All judicial acts of the National Court.” Wider than “judgments”. It reaches acts that may not be appellable at all.
The Rules
An application to the court under Constitution, s 155(2)(b) lies with leave only, or without leave. Where the application lies with leave only the provisions of Order 7 Division 2 shall be followed, substituting the word “applicant” for the word “appellant” and the word “application” for the word “appeal”.
An application for leave for review shall be made before a Judge. So leave is a single-Judge matter, as it is for leave to appeal under section 10(1)(a) of the Supreme Court Act.
Where review is available
The leading recognition of the jurisdiction is Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81, which established that a person who has lost the right of appeal may nevertheless invoke section 155(2)(b).
It is discretionary, and it is exercised only where the circumstances warrant it. The jurisdiction exists to prevent injustice, not to relieve a litigant of the consequences of a deliberate choice not to appeal.
Where a right of appeal exists and the time has not expired, the appeal is the remedy. A litigant who has an appeal available and applies for review instead should expect the application to fail.
See appeal or review.
Review compared with appeal
| Appeal | Review | |
|---|---|---|
| Source | Supreme Court Act, ss 4, 14, 22 | Constitution, s 155(2)(b) |
| Nature | Rehearing on the evidence — s 6 | Review of a judicial act |
| Time | 40 days — ss 17, 29 | No general period in Order 5 Div 1 |
| Availability | As of right, or with leave | With leave only, or without leave |
| New arguments | Possible on the Papua Club conditions | Must have been raised below — Leahy |
| Stay | Does not operate as a stay — s 19 | Does not operate as a stay — O 5 r 38 |
Application by Herman Joseph Leahy [2006] PGSC 21; SC855 requires, for each argument advanced on review, that it was raised in the National Court.
On an appeal, by contrast, Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812 permits 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.
Order 5 Rule 2
An application for leave by a prisoner who is not legally represented may be made in Form 2 to the Second Schedule. The provisions of Order 7 rule 62 shall apply to an application for leave and an application for review from sentence of death.
Rule 62 requires the Duty Judge to inquire whether the applicant has a lawyer and, if not, to direct the Registrar to notify the Office of the Public Solicitor, and to consider a direction under section 177(2)(b) of the Constitution.
General and election petition reviews
Division 1 — General Review. Rules 1 to 6. The application lies with leave only, or without leave; there is no fixed time limit; and it is instituted by an application to review in Form 5.
Division 2 — Election Petition Reviews. Rules 7 to 40. Review of a National Court decision on an election petition under Part XVIII of the Organic Law on National and Local-level Government Elections. It lies with leave only, on a compressed timetable, with a fee and security fixed by the Rules.
The two are quite different in practice. See election petition reviews.
Order 5 Rule 6
A Judge may grant leave to proceed, give any directions desirable to prepare the matter for hearing or to preserve the interests of the parties pending hearing of the review, or make any other interlocutory order which seems just, which is not determinative of the issues under review.
Note the final words. Interlocutory relief is available, but nothing determinative of the review itself. And Order 5 Rule 38 makes plain that the filing of an application for review does not operate as a stay of enforcement of the National Court decision.
Diligence is required
Where a party has not done any act required to be done by or under the rules of this division, or otherwise has not prosecuted his or her application for leave or application for review with due diligence, or has failed to comply with a direction or order, the Court or a Judge may, on its or his own motion or on application by a party, at any stage, dismiss the application where the defaulting party is the applicant, set the matter down for an expedited hearing where the defaulting party is the respondent, or fix a time peremptorily and make such orders as it deems just.
The rule sits in Division 2, but the message is general: a review is not a lesser proceeding to be pursued at leisure. See the review timetable.
Sources
- Constitution of the Independent State of Papua New Guinea — ss 155(2)(b), 177(2)(b)
- Supreme Court Rules 2012 — O 5 rr 1–6, 38, 39; O 7 rr 3–6, 62
- 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.