This is the single most consequential drafting constraint in a Supreme Court appeal. An appellant who identifies the real error in the judgment three months after filing will usually be too late to plead it.
Order 7 Rule 26
The addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment in question, or such further period as has been allowed by a Judge within those 40 days.
Section 17 of the Supreme Court Act gives 40 days to appeal, extendable only by an order made within those 40 days. Rule 26 applies the same structure to the content of the appeal.
The rationale is that a new ground is, in substance, a new appeal. Allowing grounds to be added later would allow appeals to be brought later.
When is a ground “new”?
The question is whether the complaint was already made. Recasting an existing complaint so that it complies with Rule 10 is amendment; introducing a complaint the respondent could not have known about is addition.
| Original ground | Change | Likely characterisation |
|---|---|---|
| The Judge erred in construing clause 12 | Add the construction contended for and why | Amendment |
| The Judge erred in finding the notice was served | Identify the evidence said not to support it | Amendment |
| The Judge erred in construing clause 12 | Add a ground that the Judge denied natural justice | Addition |
| The Judge erred in assessing damages | Add a ground attacking liability | Addition |
| The Judge erred in law (no particulars) | Specify three distinct errors not previously identified | Arguable either way |
An appellant who filed a notice of bare assertions and then particularises it after 40 days is exposed to the argument that there was no ground there to amend. Rule 10 says such assertions are not sufficient; a respondent will say that what was insufficient was, in substance, nothing at all.
That is a reason to draft properly at the outset rather than to file a placeholder. See drafting grounds of appeal.
Tsang
Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112 — an application for leave to appeal an interlocutory judgment must be filed within the 40-day limit, and a supplementary notice filed outside that limit was incompetent.
The result is that a late supplementary notice does not merely fail to add the ground; the notice itself is liable to be struck out.
The only enlargement available
Rule 26 allows such further period as has been allowed by a Judge within those 40 days. The application must be made and determined while the period is running.
An appellant who realises on day 35 that further grounds may be needed — because the transcript has not arrived, or the reasons are long — should apply then. An appellant who realises on day 45 has no application to make.
See extensions of time.
A separate question
In Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812 the Supreme Court held that an appellant can raise an issue of law before the Supreme Court that was not raised in the trial, provided (1) it is set out in the notice of appeal; (2) it does not concern a question of fact only; and (3) the leave of the court is obtained to argue the point.
Even a pure point of law never argued below must be in the notice of appeal. So Papua Club is not a route around Rule 26 — it presupposes that the point was pleaded within the 40 days and addresses only whether it may be argued.
On review the position is stricter: Application by Herman Joseph Leahy [2006] PGSC 21; SC855 requires that each argument was raised in the National Court.
What is left
1. Directions under Order 11 Rule 9. Where the manner or form of a procedure is not prescribed, a person may apply to a Judge for directions. That is a thin basis here, because Rule 26 prescribes the position rather than leaving it open — and the broad dispensing power in the Rules sits in Order 5, which governs reviews, not appeals.
2. Rely on the grounds you have. Often the point can be argued within an existing ground, properly read. This is the realistic answer in most cases.
3. A section 155(2)(b) review under the Constitution, for a person who has lost the right of appeal — the jurisdiction in Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81. It is discretionary and exceptional, and it is not a substitute for pleading properly.
How to avoid the problem
Get the reasons and the transcript early. The 40 days run from the judgment, not from when the transcript arrives. Order the transcript the week judgment is given.
Draft the grounds before deciding to appeal. Working out what can properly be pleaded is also how you find out whether the appeal is worth bringing — and it means the notice filed on day 20 is the notice you would have filed on day 39.
Sources
- Supreme Court Rules 2012 — O 7 rr 9, 10, 25, 26, 42; O 11 r 9
- Supreme Court Act (Chapter 37) — ss 14, 17
- Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112
- Papua Club Inc v Nasaum Holdings Ltd [2005] PGSC 15; SC812
- Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81
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.