The Supreme Court Act does not define “interlocutory judgment”, and the classification is not always obvious. This is a practical guide to working it out — and to what to do when you cannot.
Start with effect
Does this order finally determine the rights of the parties in the proceeding?
If yes — final. If the proceeding carries on afterwards — interlocutory.
Note the words in the proceeding. An order may finally dispose of an application without finally determining the proceeding. Refusing an injunction finally disposes of the injunction application, but the action continues; that order is interlocutory (though section 14(3)(b)(ii) removes the leave requirement for it anyway).
An order made on a notice of motion is not automatically interlocutory. What matters is its effect.
A motion to dismiss for want of prosecution, or as an abuse of process, or for summary judgment, can end the proceeding. An order granting such a motion is final in nature, and appealable without leave on that account.
In Takori v Yagari [2007] PGSC 48; SC905 — an appeal against the dismissal of a claim on an interlocutory application — the Court considered whether leave to appeal was required and treated the decision as final in nature, within the exception.
Applying it
| Order | Classification | Leave? |
|---|---|---|
| Judgment after trial | Final | No (unless the ground is fact only) |
| Dismissing the proceeding as an abuse of process | Final in nature | No |
| Dismissing for want of prosecution | Final in nature | No |
| Entering summary judgment | Final in nature | No |
| Refusing unconditional leave to defend | Deemed not interlocutory — s 14(4) | No |
| Granting or refusing an interlocutory injunction | Interlocutory | No — exception in s 14(3)(b)(ii) |
| Appointing a receiver | Interlocutory | No — s 14(3)(b)(ii) |
| Order about the custody of a child | Interlocutory | No — s 14(3)(b)(i) |
| Order affecting liberty of the subject | Interlocutory | No — s 14(3)(b)(i) |
| Refusing to strike out a pleading | Interlocutory | Yes |
| Discovery, particulars, interrogatories | Interlocutory | Yes |
| Directions and timetabling | Interlocutory | Yes |
| Adjournment | Interlocutory | Yes |
| Order extending time to appeal | — | Yes — s 14(3)(a) |
| Costs only, in the Court’s discretion | — | Yes — s 14(3)(c) |
Granting and refusing are not always alike
A motion to dismiss illustrates the point. Granting it ends the proceeding — final in nature. Refusing it leaves the proceeding on foot — interlocutory, and leave is needed to appeal.
The same is true of striking out a pleading in its entirety compared with refusing to do so. Which side of the order you are on can determine whether you need leave.
Section 14(3)(b)(ii) is drafted to avoid this asymmetry for injunctions: it covers granting or refusing, so both parties are treated alike.
If you genuinely cannot tell
The conventional and prudent course is to file, within the 40 days, both an application for leave to appeal in Form 7 and a notice of appeal in Form 8.
If leave turns out to have been unnecessary, the leave application falls away and little is lost. If it was necessary and was not sought in time, the appeal is incompetent and cannot be repaired — the 40 days will have expired.
This is the same practice Yakham v Merriam requires where grounds are mixed: separate notices, both filed.
Yakham v Merriam held that the alternative in Form 8 which stated that leave to appeal 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.
Leave must be applied for properly and in time. It is not something to be raised from the bar table when the appeal is called on.
The classification has a deadline attached
In Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 the Supreme Court held that an application for leave to appeal an interlocutory judgment must be filed within the 40-day limit, and that a supplementary notice filed outside it was incompetent.
So the classification cannot be left to be worked out at leisure. It has to be resolved, or provided for, inside the same 40 days as the appeal itself — and by the time a respondent takes the point by objection to competency, the period will have expired.
That is why the answer to genuine doubt is to file both documents rather than to choose. The cost of an unnecessary leave application is a filing fee; the cost of an omitted one is the appeal.
A short checklist
- What does the order do? Does the proceeding continue after it?
- Does an exception apply? Liberty, custody of infants, injunction, receiver — section 14(3)(b).
- Is it a refusal of unconditional leave to defend? If so, section 14(4) deems it not interlocutory.
- Is it about costs only, or an extension of time? Those need leave regardless — section 14(3)(a) and (c).
- Was it made by consent? If so, no appeal lies at all — section 14(2).
- What kind of grounds do you have? Fact-only grounds need leave whatever the judgment.
- Diarise the 40 days from the date of the judgment, and file within it.
Sources
- Supreme Court Act (Chapter 37) — ss 14, 17
- Supreme Court Rules 2012 — O 7 rr 1–4, 9, 60
- Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555
- Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112
- Takori v Yagari [2007] PGSC 48; SC905
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.