An appeal is a challenge to the judgment given on the case that was actually run. A party who lost on one argument cannot usually try a different one in the Supreme Court. There are exceptions, and they are narrow.
The test
The Supreme Court held that where a party wishes on appeal to raise a point of law not raised in the court below, the Court must be satisfied that it has before it all the facts bearing on the new ground as completely as would have been the case if the question had arisen at trial, and that the case at trial would not have been presented differently had the point been taken then, so that the Court can make any order that ought to have been made originally. It also held that applications to add grounds during an address in reply will not be entertained: Van Der Kreek v Van Der Kreek [1979] PNGLR 185.
The Court held that a party is not at liberty to raise on appeal a point that should have been raised in the court below, in the interests of fairness and justice, and that a party who fails to raise all the issues that should have been raised below is by that conduct precluded from raising them on appeal. The Court nonetheless dealt with the illegality of the contract under the Public Finances (Management) Act, because illegality goes to the enforceability of the whole claim: Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705.
In Papua Club Inc v Nasaum Holdings Ltd (2005) SC812 the Court stated the working rule: an appellant can raise an issue of law not raised at trial provided it is set out in the notice of appeal, it does not concern a question of fact only, and the leave of the Court is obtained to argue it. And in Curtain Bros (PNG) Ltd v University of Papua New Guinea (2005) SC788 procedural objections not put to the trial Judge were held not open on appeal.
Which new points get through
| New point | Likely result |
|---|---|
| Pure point of law on undisputed facts, for example the construction of a statute or a contract in evidence | Leave usually granted if pleaded in the notice of appeal |
| Jurisdiction, illegality, or a statutory bar such as the Claims By and Against the State Act notice or the Public Finances (Management) Act | Court will often hear it because it goes to whether any judgment could be given |
| Point that depends on facts the other side would have led evidence about | Refused: the record is incomplete and the other side is prejudiced |
| Question of fact alone | Refused; also needs leave under s 14(1)(c) of the Act |
| Procedural irregularity the party sat on at trial | Refused; the party is taken to have waived it |
| Point raised for the first time in oral reply | Not entertained |
It must be in the notice of appeal
The notice of appeal shall state the grounds relied upon in support of the appeal, briefly but specifically, and where a ground is that the judgment is against the evidence or the weight of the evidence, or is wrong in law, shall specify the particulars. A ground not stated cannot be argued without amendment.
Order 7 Rules 25 and 26 allow a supplementary notice of appeal to add grounds, but after the 40 days in section 17 of the Act it needs leave, and the Court grants leave to add grounds out of time only in exceptional circumstances. The new point should therefore be identified when the notice is drafted, and leave to argue it sought at the directions hearing or in the written submissions, not on the day. See amending a notice of appeal and what makes a good ground of appeal.
Why the rule exists
Section 6 of the Act makes an appeal a rehearing on the evidence given below. The Court can draw its own inferences, but it does not hear the witnesses, and it cannot fairly decide a point that would have been answered by evidence the respondent had no reason to call. The rule also protects the trial: parties must put their whole case to the Judge, so that the judgment decides the real dispute. Fresh evidence under Order 7 Division 20 is the separate, and equally narrow, route for facts that were not available at trial. See bringing new evidence on appeal and what rehearing means.
Sources
- Van Der Kreek v Van Der Kreek [1979] PNGLR 185
- Fly River Provincial Government v Pioneer Health Services Ltd (2003) SC705
- Papua Club Inc v Nasaum Holdings Ltd (2005) SC812
- Curtain Bros (PNG) Ltd v University of Papua New Guinea (2005) SC788
- Supreme Court Act (Chapter 37) — ss 6, 14, 17
- Supreme Court Rules 2012 — O 7 rr 9, 25–26, 52–59
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.