This is one of the few absolute bars in the Supreme Court Act. It is not a leave requirement that might be overcome — the right of appeal simply does not exist.
Section 14(2)
An appeal does not lie from an order of the National Court made by consent of the parties.
An appeal is a complaint that the court below went wrong. Where the order records what the parties themselves agreed, there is no judicial determination to attack. The order is, in substance, their contract, given the form of an order.
What is a consent order?
An order made by consent of the parties — one the parties asked the Court to make, or did not oppose on terms agreed between them.
Typical examples: orders giving effect to a settlement; agreed directions or timetables; orders by consent dismissing a proceeding; agreed orders as to costs.
There is a difference between an order the parties agreed to and one that was simply not opposed, or made in a party’s absence.
An order made because a party did not appear is not a consent order. Nor is an order made after argument in which a party made a concession on one point — the order still reflects the judge’s determination.
Where consent is disputed, the question is one of fact, and the record of the proceeding below will usually settle it.
Where an order deals with several matters and the parties consented to some but not others, section 14(2) bars an appeal against the consented parts. The contested parts remain appealable in the ordinary way, subject to the usual questions about leave.
Order 7 Rule 9(b) requires the notice of appeal to state whether the whole or part only and what part of the judgment is appealed from — which is exactly the discipline needed here.
The first alternative — apply in the National Court
The court that made a consent order may set it aside on the grounds on which the underlying agreement could be impeached — principally fraud or mistake.
In Coecon Ltd v National Fisheries Authority [2002] PGNC 144; N2182 the National Court noted that consent judgments cannot be set aside easily except on appeal, or in fresh proceedings based on fraud or mistake — and that in consequence, where liability has been resolved by consent judgment, a defendant is not at liberty to take issue on any aspect of liability at the assessment of damages.
Because no appeal lies, the Supreme Court is not the forum. The application to set aside is made in the court that made the order.
It is a substantive application requiring evidence of the vitiating factor — not a request to reconsider the merits of the bargain. A party who simply regrets a settlement has no remedy.
The second alternative — review
The Supreme Court has an inherent power to review all judicial acts of the National Court.
Where no appeal lies, that is the jurisdiction to consider. In Application by Herman Joseph Leahy [2006] PGSC 21; SC855 the Court held that a decision is reviewable under section 155(2)(b) where there is no right of appeal and no other way to bring the matter to the Supreme Court, provided the applicant shows an important point of law to be determined and that it is not without merit.
Review is available because no appeal lies — but the reason no appeal lies from a consent order is that the party agreed to it. That is not a promising foundation for arguing substantial injustice.
A review of a consent order would realistically need to be directed at something other than the merits of the bargain: for example, that the order was entered without the party’s authority, or that the Court lacked jurisdiction to make an order in those terms at all.
Before you consent
- Consent is close to final. Section 14(2) removes the appeal, and setting aside requires fraud or mistake. Treat a consent order as the end of the matter.
- Get the terms right. An ambiguous consent order cannot be cured on appeal. Recall that in Bishop v Bishop Bros an ambiguous order could not found a contempt — precision at the drafting stage is what protects you.
- Confirm your authority. A lawyer consenting without instructions creates a serious problem for the client, and the remedy is not an appeal.
- Record what is not consented to. If part of the order is contested, make that clear on the face of the order, so the right of appeal against that part is preserved.
Where liability is resolved by consent and damages are left to be assessed, Coecon confirms that the defendant cannot reopen liability at the assessment — but is not precluded from taking issue on any matter not pleaded in the statement of claim.
Sources
- Supreme Court Act (Chapter 37) — s 14(2)
- Supreme Court Rules 2012 — O 7 r 9
- Constitution — s 155(2)(b)
- Coecon Ltd v National Fisheries Authority [2002] PGNC 144; N2182
- Application by Herman Joseph Leahy [2006] PGSC 21; SC855
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.