A constitutional question is a question of law, but it almost always arises out of facts: what an official did, what a law was applied to, who holds an office. The Rules solve that in three ways.
A single Judge finds the facts
Upon the direction of the Court, either on the application of a party to the proceedings or of its own motion, a single Judge may take evidence upon any issue of fact for the determination of the proceedings and state those facts as found by him, and the Court may act upon such statement of facts so far as it thinks fit to adopt it.
Order 3 governs the Court’s original jurisdiction, which is where section 18(1) applications, section 19 references and section 57 enforcement applications sit. Rule 2 lets a single Judge give directions not involving a final decision, make interim orders, order security for costs, and make orders of the kind in section 8(1)(a) to (c) of the Supreme Court Act: production of documents and things, attendance and examination of witnesses, and receipt of the evidence of competent but not compellable witnesses. Rule 3 then adds the fact-finding function. Form 1, paragraph 5, asks the applicant to say at the outset whether a question of fact arises, and explains that if so the Court may direct a Judge to find the facts before the issue of interpretation is referred to the full Court.
In a section 18(2) reference, the referring court finds them
A reference under section 18(2) is made by the court or tribunal before which the question arose, in Form 2, and Form 2 requires it to state briefly the nature of the hearing and the circumstances in which the question arises or, if necessary, annex a copy of the findings of the Judge or referrer, together with particulars.
The section 18(2) referrer has heard the evidence, and the Supreme Court answers the constitutional question on the facts that court has found or that the parties have agreed. If the facts have not been found, the Court will usually decline to proceed until they are, or send the reference back; the Constitution does not permit the referring court to delegate its trial function to the Supreme Court. See the section 18 reference.
Agreed facts
In most references and section 19 special references the facts are not in dispute: the question is whether an Act is valid, whether a power exists, or what a provision means. The referrer states the facts in the reference, the respondents accept them in their statements of response under Order 4 Rule 25, and the Court proceeds on the agreed facts. Where a respondent disputes a fact, it says so in the statement of response, and the directions hearing under Order 13 Rule 8 decides whether an Order 3 Rule 3 direction is needed. A special reference under section 19 asks about “the law or proposed law” annexed to it, and rarely needs evidence at all.
The Rule 3 procedure in practice
| Step | What happens |
|---|---|
| Identification of the disputed facts | From Form 1 paragraph 5, the statements of response, or the directions hearing |
| Direction of the Court | The full Court, on application in Form 4 or of its own motion, directs a named Judge to take evidence on stated issues |
| Evidence | Affidavits and oral evidence before the single Judge, with cross-examination; the Judge may use the section 8 powers to compel production and attendance |
| Statement of facts | The Judge states the facts found, in writing |
| Adoption | The Court acts on the statement “so far as it thinks fit to adopt it”; a party may argue that a finding should not be adopted |
The single Judge’s findings are a report to the Court, not a judgment; the safeguard is the Court’s discretion whether to adopt them.
No facts, no answer
The court may decline to give an opinion on the question the subject of the reference or special reference if in its opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
A question that floats free of any facts is hypothetical, and the Court will not answer it. A party framing a section 18(1) application must therefore either plead facts that are not contested or ask for them to be found. See applying under section 18(1).
Section 57 enforcement applications
An application to enforce constitutional rights under section 57 is factual by nature: what was done to whom. Order 6 Rule 1 requires it to be made to a Judge in the first instance if not made in the National Court, and Rule 2 requires an affidavit setting out the facts. The single Judge hears the evidence and either grants relief within the Judge’s jurisdiction or, where a question of interpretation arises, refers it to the Court under section 18(2) with findings. See enforcing a constitutional right in the Supreme Court.
Compare appeals
On an appeal the Court does not find facts afresh; section 6 of the Act makes it a rehearing on the evidence below, with power to draw inferences and, exceptionally, to admit fresh evidence under Order 7 Division 20. Section 8(1)(d) allows a question involving prolonged examination of documents or accounts to be referred to a referee, whose report is deemed a finding of fact under section 33(2). See the supplemental powers of the Supreme Court.
Sources
- Supreme Court Rules 2012 — O 3 rr 2, 3; O 4 rr 2, 18, 25; O 6 rr 1, 2; O 7 Division 20; O 13 r 8; Forms 1, 2
- Supreme Court Act (Chapter 37) — ss 6, 8, 33
- Constitution — ss 18, 19, 57
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.