Papua New Guinea has one pool of superior court judges. Whether they are sitting as the National Court or as the Supreme Court depends on the matter before them, not on who they are.
Constitution section 161
(1) The Supreme Court consists of — the Chief Justice; the Deputy Chief Justice; and the other Judges of the National Court, other than acting Judges.
(2) For any hearing, the Supreme Court consists of at least three Judges.
(3) The Chief Justice, the Deputy Chief Justice, or the most senior of the Judges available, presides.
Section 161(1) expressly excludes acting Judges from the composition of the Supreme Court. A person appointed to act as a Judge of the National Court does not by that appointment become a member of the Supreme Court.
The rank order in subsection (3) matters in practice: where neither the Chief Justice nor the Deputy Chief Justice is on the bench, it is seniority, not selection, that determines who presides.
A judge cannot hear an appeal from themselves
(1) Subject to Subsection (2), a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated (whether on appeal or otherwise) on the merits of the case.
(2) A Judge is not precluded from sitting where he has given an interlocutory judgment only, or any other judgment not going to the merits of the case.
The disqualification is not triggered by any prior involvement. It is triggered by having adjudicated on the merits.
So a judge who granted or refused an interlocutory injunction, made a directions order, or decided an application for leave, is not disqualified from sitting on the appeal in the same proceeding. A judge who tried the action and gave judgment is.
Subsection (1) also catches a judge who adjudicated on appeal — so a Judge who sat on a National Court appeal from the District Court cannot then sit on the Supreme Court appeal from that decision.
Section 2 is a statutory disqualification, and it operates automatically. It sits alongside, and does not displace, the ordinary principles about apprehended bias and the duty to act fairly under Constitution sections 59 and 60.
A party who considers that a judge should not sit for some reason outside section 2 must raise it, promptly and with evidence, rather than assume the section covers it.
Section 3 — when a judge falls out mid-appeal
(1) Where in the course of an appeal, and at any time before delivery of the judgment, a Judge hearing the appeal is unable through illness or any other cause to attend or to exercise their functions —
the hearing shall continue; the judgment shall be given by the remaining Judges; and the Court shall be deemed to be duly constituted.
(2) But the appeal shall be reheard where either party does not agree to the remaining Judges continuing, or where only one Judge remains.
Subsection (2)(a) is easy to miss and worth knowing: if a member of the bench cannot continue, either party may decline to have the remaining Judges finish the appeal, and the consequence is a rehearing.
That is a real tactical decision. A rehearing means delay and further cost; continuing with two judges means the appeal is decided by a smaller bench, and if those two divide there is no majority.
On what happens when the Court divides, see divided opinions.
Judges need not all be present to deliver
Where a matter has been fully heard and ordered to stand for judgment, it is not necessary that all the Judges be present together in Court to declare their opinions.
The opinion of any of them may be reduced to writing and may be read or handed down by any other Judge at a subsequent sitting.
The question is then decided in the same manner, and the judgment has the same force and effect, as if that Judge had been present and declared the opinion in person.
Reserved judgments in the Supreme Court are frequently handed down months after the hearing, and assembling the same three judges on the same day is not always practical. Section 12 means a single Judge can hand down the whole Court’s decision.
It does not permit a judge who did not hear the appeal to take part in deciding it. The section applies only where the matter has been fully heard before the Court and the opinions are those of the judges who heard it.
When one Judge is enough
Constitution section 162(2) allows the jurisdiction to be exercised by a single Judge in such cases as are provided for by an Act of the Parliament or by the Rules of Court.
Supreme Court Act section 10(1) lists three: giving leave to appeal; extending the time for a notice of appeal or an application for leave; and admitting an appellant to bail.
Section 10(2) — where a Judge refuses such an application, the appellant may apply to the Supreme Court to have the matter determined by that Court.
Section 10(2) gives a right to take the matter to the full Court. It is not an appeal from the single Judge; it is a fresh determination by the Court.
See when a single Judge may act and what happens if leave is refused.
Sources
- Constitution — ss 59, 60, 161, 162
- Supreme Court Act (Chapter 37) — ss 2, 3, 5, 10, 12
The PacLII page for the Supreme Court Act (Chapter 37) offers the Act as a PDF rather than reproducing it in HTML.
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.