This is the first question in every Supreme Court appeal, and the one most often answered wrongly. Two separate tests apply, and either can trigger the leave requirement.
Both questions must be asked
Section 14(3)(b) of the Supreme Court Act: no appeal lies without leave from an interlocutory judgment, except where the liberty of the subject or the custody of infants is concerned; in cases of granting or refusing an injunction or appointing a receiver; or in such other cases prescribed by the Rules as are in the nature of final decisions.
Section 14(1): an appeal lies on a question of law or of mixed fact and law as of right; on a question of fact only with leave.
A ground of pure law still needs leave if the judgment is interlocutory and no exception applies.
A ground of fact still needs leave even from a final judgment.
So the safe question is not “is this final?” or “is this a point of law?” but both.
Working it through
| Judgment | Ground | Leave? |
|---|---|---|
| Final | Law | No — s 14(1)(a) |
| Mixed fact and law | No — s 14(1)(b) | |
| Fact alone | Yes — s 14(1)(c) | |
| Interlocutory | Law | Yes — s 14(3)(b) |
| Mixed fact and law | Yes — s 14(3)(b) | |
| Fact alone | Yes — both limbs | |
| Interlocutory, but within a s 14(3)(b) exception — liberty, custody of infants, injunction, receiver | As for a final judgment | |
| Order extending time to appeal | Yes — s 14(3)(a) | |
| Order as to costs only, in the Court’s discretion | Yes — s 14(3)(c) | |
| Order refusing unconditional leave to defend | No — deemed not interlocutory, s 14(4) | |
| Consent order | No appeal at all — s 14(2) | |
The interlocutory exceptions
(i) Liberty of the subject or the custody of infants. Interlocutory orders touching a person’s liberty, or the custody of children, are appealable without leave.
(ii) Granting or refusing an injunction, or appointing a receiver. This is the most frequently used exception in commercial litigation. An interlocutory injunction — granted or refused — may be appealed as of right.
(iii) Such other cases prescribed by the Rules of Court as are in the nature of final decisions.
An interlocutory injunction can decide the practical outcome of a dispute long before trial. Parliament recognised that by removing the leave requirement for that class of order.
The exception covers both granting and refusing. A plaintiff refused an injunction, and a defendant against whom one is granted, are equally within it.
On the principles the Court applies, see interim injunctions.
If your grounds are mixed
In Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555 the Supreme Court held that where the grounds involve questions of law and/or mixed fact and law, the appeal lies as of right and a notice of appeal in Form 8 is filed under section 17 and Order 7 Rules 6 to 9.
Where the grounds involve only questions of fact, an application for leave in Form 7 is required under Order 7 Rules 1 and 2.
And where an appeal raises law, mixed fact and law, and fact, separate notices — Forms 7 and 8 — are required.
The Court also held that the then third alternative in paragraph 2 of Form 8, stating that leave was sought at the hearing of the appeal, was without legal basis and must be deleted, and overruled Opai Kunangel v The State [1985] PNGLR 144.
Where the position is unclear
Where it is genuinely arguable whether leave is required, the conventional and safer course is to file both — an application for leave in Form 7 and a notice of appeal in Form 8 — within the 40 days.
Filing an unnecessary leave application costs little. Failing to file a necessary one is usually fatal, because by the time the point is taken the 40 days will have gone.
Order 7 Rule 15 allows a respondent to object to competency within 14 days after service, in Form 9. Where an appeal has been brought without leave that was required, that is the objection that will be made.
Under Rule 18, the burden of establishing incompetency is on the party making the objection — but that is cold comfort if the appeal is in truth incompetent.
Leave is about the gateway, not the merits
Leave opens the door. It is not a finding that the appeal will succeed, and it does not bind the Court hearing the appeal.
Under Order 7 Rule 4, an application for leave must show that an appeal lies with leave and state the nature of the case, the questions involved and the reason why leave should be given. That is a threshold enquiry, directed at whether the matter is fit to be argued.
Once leave is granted, Order 7 Rule 6 requires a notice of appeal to be filed within 21 days after the date on which leave is granted, or within such further time as the Court or a Judge allows on application filed and served within those 21 days.
Obtaining leave is not the end of the timetable. A party who wins leave and then does nothing for a month will find the appeal itself out of time.
Note also that the notice of appeal must, under Order 7 Rule 9(a), state that leave has been granted and annex the appropriate order. See what the notice must contain.
Criminal cases
Conviction — no leave for a question of law alone or of mixed fact and law; leave (or a certificate of the National Court that it is a fit case for appeal) for a question of fact alone.
Sentence — always requires leave, and no appeal lies at all where the sentence is fixed by law.
Sources
- Supreme Court Act (Chapter 37) — ss 4, 14, 17, 22
- Supreme Court Rules 2012 — O 7 rr 1–4, 9, 15, 18
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
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.