Every Judge of the National Court is also a Judge of the Supreme Court. The Act therefore has to say what happens when an appeal comes up from a judgment given by one of the people who might otherwise sit on it.
The rule
(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 as a member of the Supreme Court in cases where he has given an interlocutory judgement only, or any other judgement not going to the merits of the case.
The section reflects Constitution section 155(2), which makes the Supreme Court the final court of appeal, and section 37(3) and the rules of natural justice under section 59, which require a hearing before an impartial tribunal. Nobody is a judge in an appeal from himself.
What “on the merits” covers
| Earlier involvement in the National Court | May sit on the appeal? |
|---|---|
| Tried the case and gave the judgment appealed from | No: s 2(1) |
| Sat on the National Court appeal from the District Court whose decision is now further appealed | No: “whether on appeal or otherwise” |
| Decided the election petition now under review | No |
| Refused or granted a stay, an injunction or an adjournment in the same proceedings | Yes: interlocutory, s 2(2) |
| Gave directions, settled pleadings, ruled on discovery | Yes: s 2(2) |
| Granted leave to appeal as a single Judge of the Supreme Court | Yes: leave does not decide the merits |
| Dismissed the proceedings summarily for want of prosecution or as an abuse of process | Depends: a dismissal on procedural grounds is usually not on the merits, but where the ruling turned on the strength of the claim the Judge should not sit |
| Heard a related but separate case between the same parties | Section 2 does not apply; the ordinary test for apprehended bias does |
The National Court bench is small and its Judges give many interlocutory rulings. If every one disqualified the Judge from the appeal, benches could not be assembled. Section 2(2) confines the disqualification to a Judge who has formed and expressed a view on the substance of the dispute.
How benches are assigned
The Chief Justice assigns Judges to hearings under Order 13 Rule 4 of the Rules and the Annual Circuit Calendar, and the Registry lists the primary Judge on every file; Form 8 requires the notice of appeal to state the name of the primary Judge. Section 2 is applied administratively before the Hearing List issues, so a Judge disqualified under it is not rostered. The point rarely needs to be taken by the parties. When it does, it is raised with the Registrar as soon as the Hearing List is published under Order 13 Rule 12(2), or at the opening of the hearing, and the Judge withdraws; the appeal is then adjourned to a reconstituted bench under Order 7 Rule 61 or heard by the remaining Judges if the parties agree and at least two remain, by analogy with section 3.
Section 3: a Judge who cannot continue
(1) Where in the course of an appeal and before delivery of the judgment a Judge hearing the appeal is unable, through illness or any other cause, to attend or otherwise to exercise his functions (a) the hearing shall, subject to Subsection (2), continue; (b) the judgment shall be given by the remaining Judges; and (c) the Court shall be deemed to be duly constituted. (2) Where (a) either party does not agree to the remaining Judges continuing; or (b) there is only one Judge remaining, the appeal shall be reheard.
Section 3 permits a bench of three reduced to two to finish the appeal, but only with both parties’ agreement, and never to finish with one. Section 12 separately allows the written opinion of a Judge who heard the appeal but cannot attend to deliver judgment to be read by another Judge. See whether the Supreme Court can decide with fewer than three Judges.
Beyond section 2: bias and recusal
Section 2 is a bright-line rule for one situation. The general law of apprehended bias continues to apply to every other: a Judge with a financial interest, a close relationship with a party or counsel, or prior involvement as a lawyer in the matter, does not sit, and a party may apply for recusal. That application is made to the Judge concerned, at the first opportunity, on affidavit, and a refusal is not itself appealable within the Supreme Court; it is an issue for the conduct of the hearing. See who the Judges of the Supreme Court are and how many Judges hear a case.
Sources
- Supreme Court Act (Chapter 37) — ss 2, 3, 12
- Constitution — ss 37(3), 59, 155(2), 161
- Supreme Court Rules 2012 — O 7 r 61; O 13 rr 4, 12; Form 8
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.