Not every interlocutory order can be taken to the Supreme Court as of right. Section 14 of the Supreme Court Act (Chapter 37) draws the line.
Civil appeals to the Supreme Court
Subject to this section, an appeal lies to the Supreme Court from the National Court —
(a) on a question of law; or
(b) on a question of mixed fact and law; or
(c) with the leave of the Supreme Court, on a question of fact.
No appeal lies to the Supreme Court without leave of the Supreme Court —
(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or
(b) from an interlocutory judgement made or given by the National Court except —
(i) where the liberty of the subject or the custody of infants is concerned; or
(ii) in cases of granting or refusing an injunction or appointing a receiver; or
(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or
(c) from an order as to costs only that by law are left to the discretion of the National Court.
(2) An appeal does not lie from an order of the National Court made by consent of the parties.
(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.
PacLII carries the Supreme Court Act (Chapter 37) as a downloadable document rather than as browsable text. Section 14 is set out in full in the judgment of the Supreme Court in Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853, from which the wording above is taken. Check the current text of the Act before relying on it.
When you need no leave
| Order appealed | Leave? |
|---|---|
| Granting or refusing an injunction | No — s 14(3)(b)(ii) |
| Appointing a receiver | No — s 14(3)(b)(ii) |
| Where the liberty of the subject or the custody of infants is concerned | No — s 14(3)(b)(i) |
| Cases prescribed by Rules of Court as in the nature of final decisions | No — s 14(3)(b)(iii) |
| Refusing unconditional leave to defend | Not an interlocutory judgment at all — s 14(4) |
| Any other interlocutory judgment — discovery, amendment, adjournment, stay | Yes |
| An order as to costs only left by law to the Court’s discretion | Yes — s 14(3)(c) |
| Extension of time for appealing | Yes — s 14(3)(a) |
| An order made by consent | No appeal at all — s 14(2) |
| A question of fact alone | Yes — s 14(1)(c) |
Consent orders. Section 14(2) bars an appeal from an order made by consent. A party who agrees to an order and later regrets it has no appeal — the route, if any, is an application to set aside or vary in the National Court. See consent orders.
Questions of fact. Even where no leave is needed under section 14(3), leave is separately required under section 14(1)(c) to argue a question of fact. In Chief Collector of Taxes v Bougainville Copper Limited the Supreme Court dealt with an appeal against an interlocutory decision lifting an interim stay and injunction in which questions of fact were raised, and held that leave was required to raise those questions of fact.
Interfering with a discretion
Interlocutory orders are almost always discretionary. In SC853 the Supreme Court held that on an appeal against the exercise of a trial judge’s discretion, the appellant is obliged to demonstrate identifiable and serious error warranting interference before the appellate Court can interfere.
The Court also held that an appellant is at no liberty to raise new points on appeal except with the agreement of the parties, and that the right of appeal exists only against the exercise of a trial judge’s decision on issues raised before him.
Raise every argument below. A point not put to the trial judge is ordinarily not available on appeal. This is the single most important practical consequence of SC853.
Disagreement is not error. That the Supreme Court might have exercised the discretion differently is not enough. Identify the error — a wrong principle applied, a relevant matter ignored, an irrelevant matter taken into account, or a result outside the range reasonably open.
Consider whether an appeal is worth it. Interlocutory appeals delay the trial, and the substantive dispute usually remains undecided. Often the better course is to press on to trial, where the interlocutory ruling may cease to matter.
Before appealing
Go back to the same judge. Where the order was made ex parte, the Motions Rules require an application to set it aside to be made inter partes, before the same judge who made it — or another judge if that judge is unavailable. That is faster and cheaper than an appeal.
Use the return date. Interim orders made ex parte must be made returnable on a fixed date. The order may fall away without any appeal.
Point to a change of circumstances. Interlocutory orders regulate the position pending trial and may be varied as things change.
Check for a slip. Under Order 8 Rule 59 of the National Court Rules 1983, a clerical mistake, or an error arising from an accidental slip or omission, in the minute of a judgment or order may be corrected at any time.
The Supreme Court’s own procedure governs — the Supreme Court Rules 2012 prescribe the form and time for an application for leave and for the notice of appeal. Note that an appeal does not of itself suspend the order: a stay pending appeal must be applied for.
Sources
- Supreme Court Act (Chapter 37) — s 14 (text as set out in SC853)
- Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853
- Supreme Court Rules 2012
- National Court Rules 1983 — O 8 r 59; Motions Rules r 19(4)
Before relying on anything here, read the current text of the National Court Rules 1983 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.