Many National Court decisions are not answers to a question with one right answer but choices within a range the law allows. The Supreme Court’s approach to those choices explains why so many appeals from procedural rulings fail, and how the few that succeed are framed.
The test
The Supreme Court held that the appellate Court will not interfere with a discretionary judgment on a procedural matter within the trial Court’s jurisdiction except where the exercise of that discretion is clearly wrong; that a discretionary judgment may be set aside if an identifiable error occurred in the exercise of the discretion; and that, alternatively, it may be set aside where there is no identifiable error but the resulting judgment or order is unreasonable or plainly unjust, such that an error can be inferred. The Court adopted the passage of Kitto J in Australian Coal and Shale Employees’ Union v The Commonwealth that had been applied in Papua New Guinea since Breckwoldt & Co v Gnoyke: Curtain Bros (PNG) Ltd v University of Papua New Guinea (2005) SC788.
The recognised kinds of error are that the Judge acted on a wrong principle of law; took into account an irrelevant matter; failed to take into account a relevant matter; mistook the facts; or failed to give reasons that show how the discretion was exercised. Weight is for the Judge: the Supreme Court will not reweigh factors the Judge properly considered.
Which decisions are discretionary
| Decision | Leave needed? | Authority |
|---|---|---|
| Summary judgment or striking out a defence for failure to give discovery | Yes if interlocutory; no if it ends the action | Curtain Bros v UPNG |
| Setting aside, or refusing to set aside, a default or ex parte judgment | Yes | Hannet v ANZ; Smith v Ruma Constructions |
| Dismissal for want of prosecution | No: it is final | Burns Philp v George; General Accident v Ilimo Farm |
| Stay, injunction, adjournment, amendment, extension of time | Injunctions: no; the rest: yes | s 14(3)(b) of the Act |
| Costs | Yes, for costs only | s 14(3)(c) |
| Sentence | Yes | s 22(d); manifestly excessive or inadequate test |
| Assessment of general damages | No, but the same restraint applies | Kerr v MVIT: inordinately high or low |
| Grant or refusal of judicial review relief | No, if it disposes of the review | Relief under O 16 NCR is discretionary |
See what an interlocutory judgment is and whether the Supreme Court can change an award of damages.
How to plead the ground
A ground that says “the Judge erred in the exercise of his discretion in refusing the adjournment” is a conclusion, and Order 7 Rule 9 requires grounds to be stated specifically. The ground must say what the error was: that the Judge applied the wrong test by requiring exceptional circumstances where the Rules require sufficient cause; that the Judge took into account the appellant’s conduct in unrelated proceedings; that the Judge failed to consider the affidavit evidence of the witness’s illness; or that the refusal was, in the circumstances set out, plainly unjust. Each is then supported in the extract of argument by page and line references to the transcript and the ruling. See drafting grounds of appeal.
Why the restraint
The trial Judge saw the parties, managed the case and knows the file; the Supreme Court has a transcript. Procedural discretions are given to the trial court so that it can do justice in the particular case, and an appellate court that substituted its own view on every one would make the trial court’s management meaningless and multiply interlocutory appeals. Section 14(3) of the Act reflects that policy by requiring leave for most interlocutory appeals, and the leave test asks whether there is an arguable case that the discretion miscarried, not whether the Supreme Court might have decided differently. Curtain Bros itself shows the other side: where the Judge entered summary judgment on a defective notice of discovery and counsel failed in the duty to draw the defect to the Judge’s attention, the discretion was found to have miscarried and the judgment was quashed.
What the Court does when it finds error
Once error is shown, the discretion is at large. Under section 16 of the Act the Court may exercise it afresh on the material before it, which is usual where the facts are all on affidavit, or remit the matter for the National Court to exercise it again where further evidence or findings are needed. See what it means when the Court remits a case and what appeal by way of rehearing means.
Sources
- Curtain Bros (PNG) Ltd v University of Papua New Guinea (2005) SC788
- Smith v Ruma Constructions Ltd (2002) SC695
- Hannet v ANZ Banking Group (PNG) Ltd (1996) SC505
- Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251
- Supreme Court Act (Chapter 37) — ss 14, 16, 22
- Supreme Court Rules 2012 — O 7 r 9; O 11 r 18
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.