Supreme Court Rules - Commentary by Justice Lay
| Coming into Force | 01 January 2009 |
| Revision Date | 01 October 2021 |
| Published date | 19 May 2009 |
| Type of Document | Consolidated Text |
Care must be taken when using the commentary with the Supreme Court Rules 2012, to ensure the correct Rule is being referenced. Some Rule numbers have changed in the Supreme Court Rules 2012. The Supreme Court Rules 1984 are in the repealed legislation database (Pg_Leg_R.NFO).
The case commentary is not legal advice. It does not purport to be a complete reference to all relevant cases nor a complete statement of the law. E very effort has been made to make the commentary an accurate statement of general principle on the more common issues and to point out those areas where it appears difficult to bring all published decisions within a single principle. The purpose of the commentary is to assist practitioners and others interested in the law in commencing research. No undertaking is given that the commentary is or will be kept up-to-date. The commentary should not itself be cited as authority.
Rule 2
Rule 2 sub rule-
(a) "not involving a final decision upon the proceedings" means - "includes" or "entails" or "affects in its operation" any decision which may have to be made on the appeal. To determine those issues the grounds of appeal need to be examined: SC789 (2005) Wau Ecology Institute v Registrar of Companies. The rule includes a power to direct that the notice of appeal be amended in specific particulars: Rahonamo v Enai & the Administration of the Territory of Papua and New Guinea [1971-72] PNGLR 150. And see Supreme Court Act Section 5 (1) (b) the jurisdiction of a single judge is restricted to decisions " not involving the decision on the appeal". This Rule and Section 5 do not give a single judge power to order that additional evidence be admitted on the appeal or to make any order which changes the fact situation to be brought before the Supreme Court: SC 794 (2005) Wau Ecology Institute v Registrar of Companies. For interim orders in a judicial review under Constitution Section 155(2) (b) see comments to Order 5.
(b) The common-law principles applicable to interlocutory injunctions can be applied by analogy, but not strictly: Nora Mairi v Alkan Tololo [1976] PNGLR 59; SC756 (2004) Sir Pato Kakaraya v The National Parliament. Those principles applied before there were Rules. The Rule defines the powers of the Court which cannot develop the underlying law on the topic. The rule is concerned with prejudice to the parties and cannot be extended to "matters of national importance". Constitution Section 155(4) has no application to the interpretation of O3 r2: SC 754 Bill Skate and Peter O'Neil v Jeffrey Nape Speaker of the National Parliament. It does not apply when jurisdiction is given by other legislation and is not the "original jurisdiction" of the Court. A Constitution Section 155(2) (b) review application is not the original jurisdiction of the Court: SC539 (1998) Viviso Seravo v John Giheno. A full bench of the Supreme Court has jurisdiction under Section 155(4) of the Constitution, to grant a stay of National Court orders on an election petition or to make other interim orders, pending determination of a review under Constitution, Section 155(2)(b), of the National Court orders. The test to apply is whether the order is necessary to do justice in the particular case: David Arore v John Warisan (2008) SC947.
Also see the notes to Order 5. Some of the matters to be taken into account when considering an application for a stay are: (1) the judgment creditor is entitled to the benefits of the judgment. (2) Whether leave to appeal is required and whether it has been obtained;(3) Whether there has been any delay in making the application, (4) Possible hardship, inconvenience or prejudice to either party, (5) The nature of the judgment sought to be stayed, (6) The financial ability of the applicant, (7) Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal, (8) Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure, (9) The overall interest of justice, (10) Balance of convenience, (11) Whether damages would be a sufficient remedy: Gary McHardy v Prosec Security and Communications Ltd [2000] PNGLR 279. Cases applying McHardy v Prosec Security and Communications Ltd have been listed in Lupari v Somare & Ors (2008) SC951. And see the commentary to section 19 of the Supreme Court Act. Once an appeal has been lodged the National Court is functus officio and has no power to stay its own order from which the appeal is brought: SCM No 58 of 2008 Barava Ltd v Giregire Estates Limited (unreported Supreme Court decision dated 28th November 2008). A stay should not be granted to preserve a right in respect of which the applicant could not obtain permanent relief: SC 951 (2008) Lupari v Somare [2008] PGSC 33.
Rule 1 (e) The requirement of this rule (for the reference to be signed by designated officers) also applies to applications under Constitution Section 19: Central Provincial Government v NCDC [1987] PNGLR 249. The requirement for signing by specified officers goes to the validity of the application. Signature by an unauthorised person cannot be cured by a direction of the Court to get the reference properly signed: SC817 (2007) In the Matter of Section 19 of the Constitution – Reference by Fly River Provincial Government Executive (Ref. No. 3 of 2006). The Supreme Court Rules do not provide procedure for commencing proceedings in the original jurisdiction of the Supreme Court. Ad hoc directions can be given pursuant to Section 185 of the Constitution: Isadore Kaseng v Rabbie Namaliu, and the Independent State of Papua New Guinea (No.1) [1995] PNGLR 481. Also see commentary to Section 15 of the Supreme Court Act.
Rule 2(b) In a reference made under Constitution s18 it is also appropriate that the proceedings be commenced in the National Court and the facts found from which the Constitutional interpretation issue arises before making the reference: Re Calling of Meetings of Parliament [1999] PNGLR 285 per Kapi DCJ as he then was and see to the same effect SCR No.3 of 1982; Re s57, s155(4) of the Constitution [1982] PNGLR 405 at 407 and SCR No.5 of 1982; Hugo Berghuser v Joseph Aoae [1982] PNGLR 379 and SCR No. 1 of 1982; Re Philip Bouraga [1982] PNGLR 178.A reference under s18 of the Constitution should not be made on assumed facts: Supreme Court Reference No.5 of 1982 [1982] PNGLR 379 (SC), the trial judge must deal with the facts which give rise to the constitutional issue: Patterson Lowa v Wapule Akipe [1992] PNGLR 399. A reference can only be made where (a) there is an issue as to the interpretation of the Constitution or a constitutional law, (b) the question is not trivial, vexatious or irrelevant, (c) the Supreme Court has not previously finally and authoritatively interpreted and applied to the particular provision, (d) no other provision of the Constitution or any other constitutional law gives the National Court jurisdiction to apply or interpret the constitutional law: SC 930 (2008) Lupari v Somare [13].
A single judge of the Supreme Court has no power to make interim orders in a judicial review under Constitution Section 155(2) (b): SC 539(1998) Review No. 78/1977; Application for Review Pursuant to s 155(2) (b) of the Constitution; Viviso Seravo and Electoral Commission v John Giheno. The full bench of the Supreme Court has to convene to deal with such issues: SC 555 (1998) Viviso Seravo v Electoral Commission v John Giheno, followed in SC 562 (1998) Wauni Wasia Ranyeta v Masket Iangelio and David Lambu v Peter Ipatas (No.3) [1999] PNGLR 207. Failure of a lawyer to fulfil his obligations to the client by failing to file a notice of appeal is not a ground justifying leave to review: SC 925 (2008) Application by Stephen Mark [2008] PGSC 16. There are 3 categories of cases where jurisdiction has been exercised under Section 155 (2) (b) - (1) where parties allow a statutory right of appeal to expire, (2) where a right of appeal is prohibited or limited by law, (3) where there is no other way of going to the...
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