The right of appeal is statutory. It exists where the Supreme Court Act (Chapter 37) gives it, and not otherwise.
Section 4
(1) An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.
(2) An appeal lies in any civil or criminal proceedings, to the Supreme Court from a Judge of the National Court sitting on appeal —
(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.
Section 1 of the Act defines judgment to include a finding, decree, order, rule, conviction, verdict and sentence, a decree, order or rule nisi, and a refusal to make a finding, decree, order or rule.
So a refusal to make an order is itself a judgment capable of being appealed. That matters where an application below was dismissed.
Section 14 — the civil provision
(1) 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.
(2) An appeal does not lie from an order of the National Court made by consent of the parties.
(3) No appeal lies without leave —
(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or
(b) from an interlocutory judgment, 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.
(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgment.
Which route is yours?
| Situation | Leave? | Source |
|---|---|---|
| Final judgment, ground is a question of law | No | s 14(1)(a) |
| Final judgment, ground is mixed fact and law | No | s 14(1)(b) |
| Final judgment, ground is a question of fact | Yes | s 14(1)(c) |
| Interlocutory judgment, generally | Yes | s 14(3)(b) |
| Interlocutory — liberty of the subject or custody of infants | No | s 14(3)(b)(i) |
| Interlocutory — granting or refusing an injunction, or appointing a receiver | No | s 14(3)(b)(ii) |
| Order extending time to appeal | Yes | s 14(3)(a) |
| Costs only, in the Court’s discretion | Yes | s 14(3)(c) |
| Consent order | No appeal lies at all — s 14(2) | |
| Refusal of unconditional leave to defend | No — deemed not interlocutory | s 14(4) |
Both questions matter, and they are independent. A ground of fact needs leave even from a final judgment. A ground of law needs leave if the judgment is interlocutory and no exception applies.
In Yakham v Merriam [1997] PGSC 32; [1998] PNGLR 555 the Supreme Court held that where grounds involve law or mixed fact and law the appeal lies as of right on a Form 8 notice; where they involve only fact, a Form 7 application for leave is required; and where an appeal raises all three, separate notices must be filed.
See whether you need leave and mixed grounds.
Criminal cases are governed separately
A person convicted by the National Court may appeal —
(a) against conviction, on any ground that involves a question of law alone;
(b) against conviction, on a question of mixed fact and law;
(c) with leave, or on the certificate of the National Court that it is a fit case for appeal, against conviction on a ground involving a question of fact alone, or that appears to the Supreme Court to be a sufficient ground of appeal;
(d) with leave, against the sentence, unless the sentence is one fixed by law.
The certificate route. Paragraph (c) offers an alternative to leave: a certificate from the National Court that it is a fit case for appeal.
Sentence always needs leave — and no appeal lies at all against a sentence fixed by law.
Only from the National Court
Section 4(1) confers a right of appeal from a judgment of the National Court. There is no direct appeal to the Supreme Court from the District Court, a Local Land Court, a Village Court or a tribunal.
Those appeals go to the National Court first. Only then, under section 4(2), does an appeal lie to the Supreme Court from a Judge of the National Court sitting on appeal — and on the same three-way basis of law, mixed fact and law, or (with leave) fact.
Order 7 Rule 12: where the appeal is from a Judge sitting on an appeal, a copy of the notice of appeal shall be left with the court or tribunal from the judgment of which the appeal was brought to the National Court.
And Order 7 Rule 43(13)(i) requires the appeal book, in that situation, to include the notice of appeal, the reasons for judgment and the formal order in that earlier proceeding. A second-tier appeal therefore carries two layers of record.
If no appeal is available
Where the Act gives no right of appeal, or the right has been lost by delay, the remaining route is review under Constitution section 155(2)(b) — the Supreme Court’s inherent power to review all judicial acts of the National Court.
It is discretionary and demanding. See section 155(2)(b) review and appeal compared with review.
Sources
- Supreme Court Act (Chapter 37) — ss 1, 4, 14, 22
- Constitution — s 155(2)(b)
- 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.