Litigants who are unsure whether an appeal lies, or whether leave is needed, are tempted to file everything: an appeal, a leave application and a review, and to let the Court sort it out. The Court does sort it out, usually by dismissing the surplus proceedings and ordering costs.
One judgment, one proceeding
The Supreme Court held that a party commencing a multiplicity of legal proceedings concerning the same issues commits an abuse of process unless very good reasons are shown to justify it: Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906. The principle was stated about National Court proceedings but is applied by the Supreme Court to its own: an appellant who has invoked the Court’s appellate jurisdiction cannot also invoke its review jurisdiction against the same judicial act.
The reasons are structural. Section 155(2)(b) of the Constitution is a reserve power for cases where no appeal lies or the right of appeal has been lost; while an appeal is on foot the power is not engaged. Two files mean two benches, two books and two sets of costs on one dispute. And the respondent is entitled to know which case to meet.
Which combinations are allowed
| Combination | Permitted? | Basis |
|---|---|---|
| Application for leave (Form 7) plus notice of appeal (Form 8) filed together | Yes | O 7 r 11: the notice is deemed given when leave is granted; grounds not needing leave proceed regardless |
| Notice of appeal plus a supplementary notice adding grounds | Yes, within 40 days; later only with leave | O 7 rr 25–26 |
| Appeal by one party and a cross-appeal or notice of contention by the other | Yes | Each is a separate party’s challenge; they are heard together |
| Separate appeals by different parties from the same judgment | Yes, consolidated | O 11 r 11; directions under O 13 |
| Appeal against the judgment and separate application for leave to appeal the costs order | Yes | s 14(3)(c) requires leave for costs only; usually filed in the one leave application |
| Appeal and a s 155(2)(b) review against the same judgment | No | Abuse of process; election required |
| Two notices of appeal against the same order by the same party | No | Second is struck out; amend the first instead |
| Fresh application to another single Judge after one Judge refused | No | Renew before the full Court under s 10(2) of the Act |
| Review after the appeal was dismissed as incompetent without a hearing on the merits | Sometimes, with leave | The appeal right is lost; leave depends on explanation, delay and merit |
Election
The respondent objects to competency in Form 9 under Order 7 Rule 15, or applies under Order 11 Rule 25 to dismiss one proceeding as an abuse. The Court ordinarily puts the appellant to an election at the directions hearing: choose the appeal or the review, and withdraw the other under Order 11 Rule 29 with costs. If the appellant refuses to elect, the Court dismisses the proceeding that should not have been brought, which is normally the review where an appeal lies, and may dismiss both where the conduct is oppressive.
A review after an appeal fails
Where an appeal is dismissed as incompetent, for example because it was filed a day late or in the wrong form, the appellant has lost the right of appeal and section 155(2)(b) is in principle available. The Court grants leave only where the applicant explains why the appeal miscarried, acts promptly, and shows a serious point with real prospects; the loss of the appeal through the applicant’s own default weighs heavily against leave. Where the appeal was heard and dismissed on the merits, a review is not available at all: the Supreme Court cannot review its own decisions under section 155(2)(b), and Constitution section 155(2)(a) makes its judgment final. See what you must show to get leave for review and whether the Supreme Court can review its own decision.
Getting it right the first time
Decide whether the judgment is final or interlocutory and whether the grounds are of law, mixed fact and law, or fact alone, which determines whether leave is needed. File the leave application and the notice of appeal together if in doubt, and put every ground in the one notice. Use Order 10 for judicial review and habeas corpus orders. Reserve the review for the case where no appeal lies. See applying for leave and appealing at the same time, the difference between an appeal and a review and abuse of process.
Sources
- Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906
- Constitution — s 155(2)
- Supreme Court Act (Chapter 37) — ss 10, 14
- Supreme Court Rules 2012 — O 5; O 7 rr 11, 15, 25–26; O 10; O 11 rr 11, 25, 29; Forms 7, 8, 9
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.