Most National Court judgments can be appealed, with or without leave. A few cannot be appealed at all, and knowing which is essential before spending money on an appeal that is bound to be struck out.
Orders made by consent
An appeal does not lie from an order of the National Court made by consent of the parties.
A party who agreed to an order has no complaint about the judge making it. The order records their bargain, not a judicial determination against them.
The bar is absolute. It is not a leave requirement — no appeal lies, and leave cannot be granted.
See appealing a consent order for what can be done instead: an application in the National Court to set the order aside on the ground of fraud or mistake, or a review.
Sentences fixed by law
A person convicted may appeal, with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.
An appeal against sentence always requires leave — it never lies as of right.
And where the sentence is fixed by law — that is, where the statute prescribes the penalty and leaves the judge no discretion — no appeal against sentence lies at all, with or without leave. There is nothing to appeal against, because the judge had no choice.
An appeal against the conviction remains available in the ordinary way. See appealing a sentence.
Where a statute says the decision is final
Except where the contrary intention expressly appears in a law, the power to reserve a case or point of law for the Supreme Court may be exercised in relation to any appeal or matter coming before a Judge or the National Court under any law — notwithstanding that the determination of the Judge or of the Court is expressed to be final or without appeal.
Section 15(2) preserves the reserved point of law route even where a statute says the National Court’s decision is final.
And a privative or finality clause cannot displace the Supreme Court’s constitutional jurisdiction. Section 155(2)(b) confers an inherent power to review all judicial acts of the National Court, and an ordinary statute cannot remove it.
Compare Ombudsman Commission v Donohoe [1985] PNGLR 348, where the Court held that an Organic Law cannot restrict, narrow down or qualify a grant of jurisdiction or a right under the Constitution unless the Constitution itself so provides.
No appeal is not the end
The National Court dismissed an objection to, and accepted, an indictment. There was no right of appeal and no other way the accused could bring the matter to the Supreme Court.
The Court held the decision is reviewable under Constitution section 155(2)(b), provided the applicant shows (a) there is an important point of law to be determined; and (b) it is not without merit.
Applying Re Central Banking (Foreign Exchange and Gold) Regulations [1987] PGSC 4; [1987] PNGLR 433.
Where the Act gives no right of appeal, the question becomes whether the decision is a judicial act of the National Court capable of review. If it is, the Leahy criteria apply.
Other appeals that are restricted
| Judgment | Position | Source |
|---|---|---|
| Order made by consent | No appeal at all | s 14(2) |
| Sentence fixed by law | No appeal at all | s 22(d) |
| Order as to costs only, in the Court’s discretion | Leave required | s 14(3)(c) |
| Order extending time to appeal | Leave required | s 14(3)(a) |
| Interlocutory judgment | Leave required, subject to exceptions | s 14(3)(b) |
| Ground of fact alone | Leave required | s 14(1)(c) |
| Sentence (criminal), generally | Leave required | s 22(d) |
Appeals that will be dismissed summarily
Where the Registrar is of the opinion that a notice of appeal, or a notice of an application for leave to appeal, does not show any substantial ground of appeal, the Registrar may refer the appeal to the Supreme Court for summary determination.
Where the Court is satisfied that the appeal (a) is frivolous or vexatious; and (b) can be determined without a full hearing, it may dismiss the appeal summarily without calling on any person to attend the hearing.
The Act carries a footnote to section 11 reading “But see Constitution, Section 37, especially Subsections (1), (5) and (15)” — the protection of the law, the right to be present, and the right to have a conviction and sentence reviewed by a higher court according to law.
That is a signal that section 11 must be read consistently with those guarantees, and it is a reminder of why summary dismissal without a hearing is exceptional.
Order 13 Rule 16(2) supplies the procedural protection: where the Registrar refers a matter for summary determination, he may give notice, 14 days before the hearing, in Form 10D to each party, shall place on the file any written response and advise the appellant to appear, and shall forward the file to the Court or a Judge with any response received.
Sources
- Supreme Court Act (Chapter 37) — ss 11, 14, 15, 22
- Constitution — ss 37, 155(2)(b)
- Application by Herman Joseph Leahy [2006] PGSC 21; SC855
- Re Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138) [1987] PGSC 4; [1987] PNGLR 433
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.