Courts exist to resolve disputes, not to give opinions. When events overtake an appeal so that nothing turns on the answer, the Supreme Court asks whether there is any point in hearing it, and often decides there is not.
What moot means
| Event | Usual treatment |
|---|---|
| Appeal against an interlocutory injunction after the trial has been heard and decided | Moot; dismissed, costs of the appeal decided on the papers |
| Appeal against an order about a term of office or a contract that has since expired | Moot unless damages or a consequential claim depend on it |
| Election petition review after Parliament is dissolved for the next election | Moot as to the seat; the Court has heard some for costs or where the point affects the coming election |
| Appeal against a refusal of bail after the trial has concluded | Moot; struck out |
| Appeal against a sentence fully served | Not moot: the conviction and record remain, and a reduced sentence affects the record |
| Appeal settled by the parties | Discontinued under O 7 r 20; consent orders |
| Appellant dies and the cause of action does not survive | Abates; dismissed |
| Legislation amended so that the point can no longer arise | Usually moot; heard if the old law still governs other pending cases |
The Court’s discretion
On an application for leave to review an election petition decision, the Supreme Court refused leave on grounds that raised a point of law it found to be without merit and “purely academic”, holding that a point which is academic is not an important point of law justifying review: Olga v Wingti (2008) SC938. The same reasoning applies to leave to appeal under section 14 of the Act, where the applicant must show an arguable case with real consequences, and to the Court’s general control of its list under Order 13.
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.
Rule 18 gives express form, for constitutional references, to what is otherwise an inherent discretion. Section 19 of the Constitution allows the Court to give advisory opinions on special references, and even there it will not answer a question that has become abstract. See the special reference under section 19.
When the Court hears a moot appeal
Three situations lead the Court to proceed. First, where the point is one of public importance that is likely to recur but, by its nature, will always become moot before an appeal can be heard: challenges to short-term orders, to procedures in election disputes, or to the exercise of a statutory power that is repeated every year. Second, where a live question of costs turns on who would have won; the Court may decide the appeal, or may simply make the costs order that the circumstances justify without deciding the merits. Third, where a declaration would still have practical value, for example as to the validity of an appointment that affects the acts done under it. The Court weighs the expense of a full hearing against the benefit of the answer, and the parties should address the point in writing before the hearing date so that the Court can decide it at a directions hearing.
What a party should do
An appellant whose appeal has lost its purpose should discontinue under Order 7 Rule 20, negotiating costs first, because Rule 22 otherwise makes the appellant liable for them. A respondent who considers the appeal moot should write to the appellant and, failing agreement, apply under Order 11 Rule 25 or raise it at the next call over or directions hearing under Order 13, so that the bench’s time is not wasted. A party who wants a moot appeal heard should explain, in a short submission, which of the exceptions applies. See consent orders, what happens if the appellant dies and election petition reviews.
Costs of a moot appeal
Where an appeal is dismissed as moot without a decision on the merits, the ordinary rule that costs follow the event has no event to follow. The Court looks at who caused the appeal to become moot, whether the appellant acted reasonably in bringing it, and whether either side would obviously have won, and may order no costs, costs to the respondent, or costs to the appellant where the respondent’s own act removed the dispute. See who pays the costs of an appeal.
Sources
- Olga v Wingti (2008) SC938
- Supreme Court Rules 2012 — O 4 r 18; O 7 rr 20–22; O 11 r 25; O 13
- Supreme Court Act (Chapter 37) — s 14
- Constitution — s 19
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.