The distinction between final and interlocutory judgments decides whether an appeal needs leave. The Supreme Court Act does not define either term, so the content comes from the general law and from the way the Act is structured.
The basic idea
A final judgment finally determines the rights of the parties in the proceeding. Once it is given, the proceeding is at an end so far as that court is concerned.
An interlocutory judgment decides something on the way to the final determination. The proceeding continues after it.
- Granting or refusing an injunction pending trial
- Orders about discovery, interrogatories or particulars
- Directions orders and timetabling
- Joinder of parties, or striking out a party
- Refusing to strike out a pleading
- Adjournments
- Security for costs
The question is not what the order is called but what it does. An order that disposes of the proceeding — dismissing it, or entering judgment — is final even if made on an interlocutory application.
That is why a decision dismissing a claim on a motion is treated as final in nature. In Takori v Yagari [2007] PGSC 48; SC905 — an appeal against dismissal of a claim on an interlocutory application — the Court addressed whether leave was required and treated the decision appealed against as final in nature and so within the exception to the leave requirement.
Section 14(3)(b)
(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.
It contemplates the Rules prescribing further categories of interlocutory judgment that may be appealed without leave because they are in the nature of final decisions.
The phrase captures the underlying principle: what matters is whether the order, though technically interlocutory, has the practical effect of finality. An order refusing an injunction that was the only thing preserving the subject matter of the dispute is interlocutory in form and close to final in substance — which is why paragraph (ii) removes the leave requirement for it.
One judgment deemed not to be interlocutory
An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgment.
Where a defendant resists summary judgment and is refused unconditional leave to defend — either refused leave altogether, or given leave only on conditions — the resulting order is treated as not interlocutory. No leave to appeal is needed on that account.
The rationale is obvious: such an order effectively decides the case against the defendant. It would be harsh to require them to obtain leave before challenging it.
On summary judgment itself, see Tsang v Credit Corporation and the two elements of Order 12 Rule 38 of the National Court Rules.
Three consequences
1. Leave. If the judgment is interlocutory and no exception applies, an appeal without leave is incompetent.
2. Time. The 40-day period runs from the date of the judgment either way — but if leave is needed and not obtained in time, the appeal cannot be saved.
3. Which judge may sit. Section 2(2) of the Act provides that a Judge is not precluded from sitting on the Supreme Court where they gave an interlocutory judgment only. So the characterisation also determines whether the judge below may sit on the appeal.
In Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 the Supreme Court held that an application for leave to appeal against an interlocutory judgment must be filed within the 40-day limit, and that a supplementary notice of appeal filed outside it was incompetent.
So the leave application is itself subject to the time limit. There is no separate, later period for it.
A practical consequence in the registry
Where an appeal may lie by leave or without leave, the officer of the National Court who has custody of the exhibits shall, unless the primary Judge otherwise orders, retain the exhibits —
(a) for 40 days after the date when the judgment is pronounced; or
(b) if within those 40 days leave to appeal is granted, for a further period of 40 days.
The retention period is tied to the appeal period. If nothing is filed and no leave is granted within the 40 days, the exhibits may be released — and reconstructing the record afterwards is difficult and expensive.
On filing a notice of appeal, Order 7 Rule 31 requires the Associate to the primary Judge to make out and certify a list of exhibits, and the exhibits, the list and any other documents before the primary Judge to be delivered to the registry. See the collection of papers.
Failing to appeal an interlocutory order is not fatal
An interlocutory order or rule from which there has been no appeal shall not operate so as to bar or prejudice the court from giving such decision upon an appeal as may be just.
A party who did not appeal an interlocutory ruling — perhaps because leave would have been needed, or because the ruling seemed unimportant at the time — is not shut out from complaining about its consequences on the appeal from the final judgment.
The Court is not barred by the unappealed interlocutory order from giving whatever decision on the appeal is just. That does not make the interlocutory ruling itself a ground of appeal, but it prevents it operating as an estoppel.
Sources
- Supreme Court Act (Chapter 37) — ss 2, 14
- Supreme Court Rules 2012 — O 7 rr 25, 26, 60
- 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.