Two roads lead from the District Court to the National Court. They look similar from a distance and are entirely different up close. Choosing the wrong one wastes months.
Two jurisdictions
The National Court has an inherent power to review any exercise of judicial authority.
The appeal is statutory, created by section 219 of the District Courts Act. The review is constitutional, exercised through Order 16 of the National Court Rules by orders in the nature of certiorari, mandamus and prohibition. Section 241 of the District Courts Act itself refers to an order “brought before the National Court by writ of certiorari”, and sections 239 to 243 regulate habeas corpus and certiorari against summary convictions. See what is judicial review.
Side by side
| Appeal (Part XI) | Judicial review (Order 16) | |
|---|---|---|
| Question | Was the decision right? | Was the decision lawfully made? |
| Grounds | Error of fact, law or procedure causing a substantial miscarriage of justice (s 230(2)) | Want or excess of jurisdiction; breach of a mandatory statutory requirement; denial of natural justice; error of law on the face of the record; unreasonableness |
| Leave | Not required | Required (O 16 r 3); the State must be heard if a defendant (CBASA s 8) |
| Time | One month, extendable under s 231 | Promptly; the Rules and cases require the application to be made without undue delay |
| Evidence | The District Court record; fresh evidence only by leave (s 229) | Affidavits; the decision under review must be proved (Tohian) |
| Outcome | Affirm, quash, vary, substitute, remit, adjust sentence (s 230(1)) | Quash and usually remit; order the magistrate to act; prohibit; declare. No substitution of the Court’s own decision on the merits |
| Security | Recognizance or deposit (s 222) | None, but an undertaking may be required for a stay |
| Who | A person aggrieved; not the State against a dismissal (s 219(2)) | Anyone with sufficient interest, including the State |
Review where an appeal was available
Although the judicial review jurisdiction of the National Court exists and may be invoked where an alternative statutory remedy is available, as a general rule, applications for judicial review should not be granted, save in the most exceptional circumstances, until the alternative statutory procedures have been exhausted.
— Supreme Court, PGSC 19 (1988)
For a District Court decision the alternative statutory procedure is the Part XI appeal. A party who could have appealed and did not will generally be refused leave to review, and a party who has missed the one month should seek an extension under section 231 rather than reframe the complaint as review. The exceptions are where the appeal could not give the remedy sought, or where the ground is one an appeal does not fit, such as bias.
Committals: review, not appeal
A committal for trial is a “decision” under section 1, but Akia v Francis (2016) N6555 holds that an appeal is not a proper mode to challenge a finding of a prima facie case, while State v Rush [1984] PNGLR 124 and Tohian v Geita (No 2) [1990] PNGLR 479 hold that review lies for jurisdictional error and breach of mandatory requirements. Because a committal is not an adjudication, the appeal’s question, was the decision right, has no purchase; the review’s question, was it lawfully made, does. See challenging a committal.
Can both be brought?
In principle yes, and Kekedo discussed whether pursuing both concurrently is an abuse of process. The practical answer is to choose. Where the complaint is that the magistrate got the facts or the law wrong, appeal. Where the complaint is that the magistrate had no jurisdiction, ignored a mandatory step, or did not give a hearing, either will do and the appeal is cheaper and more certain, unless the decision is a committal. Where the decision is a nullity, for example a sentence altered after it was pronounced, as in Ex parte the Acting Public Prosecutor [1976] PNGLR 344, certiorari is the natural remedy and the State can use it although it cannot appeal.
Section 155(4) is not a third road
Litigants sometimes invoke Constitution section 155(4), the power to make orders necessary to do justice, as a way round both procedures. In Yawari v English (1996) N1433 the National Court rejected the submission that section 155(4) can operate where a statute adequately provides for the procedure in question, and Wartoto v The State (2015) SC1411 condemned civil proceedings used to interfere with criminal ones. See what is section 155(4).
The Act’s own mandamus
Section 13 of the District Courts Act gives a statutory equivalent of mandamus: where a magistrate refuses to do an act relating to the duties of his office, the National Court may order him to show cause and then to do it. Ex parte Dyer [1967–68] PNGLR 511 confines it to a refusal to exercise jurisdiction, not a wrong exercise of it. See when the Act does not cover the situation.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. 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.