The extension power exists, and it is used. What defeats most applicants is not the merits but the timing of the application itself.
Where it comes from
Section 17 — notice must be given within 40 days, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.
Section 29(2) — in criminal matters, the time may be extended at any time by the Supreme Court on application made within 40 days after the date of conviction.
Note where the time limit bites. The extension may be for any length the Judge allows. The application must be made within the original 40 days.
Section 29(2) makes this vivid: the Court may extend at any time — but only on application made within 40 days after the date of conviction.
What to file
Where a person desires to apply for a further period within which to lodge a notice of appeal or an application for leave to appeal, the applicant shall, within 40 days after the date of the judgment in question, file and serve on all parties in the proceedings the subject of the proposed appeal, or their lawyers:
(a) an application in Form 4 setting out —
(i) the date of the judgment in question;
(ii) the grounds upon which the applicant relies for an extension of time;
(iii) the further period which the applicant seeks; and
(b) a supporting affidavit —
(i) annexing a copy of the judgment in question, or a transcript, or if no judgment or transcript is available a summary of the decision of the Court;
(ii) deposing as to why the additional amount of time being sought is required.
— Supreme Court Rules 2012, O 7 r 1
The Rules expressly contemplate that no judgment or transcript may be available, and accept a summary of the decision instead.
That removes the most common excuse for delay. The absence of a transcript is not a reason to miss the 40 days; it is a situation the Rules have already provided for.
The Registrar's duty
The Registrar shall take all steps necessary to have an application under Rule 1 heard by a Judge as soon as is practicable after its filing.
This is an obligation on the Registry, not a courtesy. Where an extension application has been filed and is not moving, Rule 2 is the provision to point to.
The application is heard by a Judge — consistent with section 10(1)(b), under which the power to extend time may be exercised by a Judge in the same manner as by the Court. If a Judge refuses, section 10(2) allows the appellant to apply to the Supreme Court to have the matter determined by that Court.
What to put in the affidavit
- The date of judgment and the date of the application, so the Judge can see the application is in time.
- What has happened since the judgment, period by period. Unexplained gaps are what such applications fail on.
- Why the further time is required — Rule 1(b)(ii) asks this directly. Awaiting a transcript is a reason only if you show when it was requested and what has been done since.
- How long is sought, and why that long. Rule 1(a)(iii) requires the period to be specified.
- Something about the merits. The Rule does not require it, but a Judge asked to extend time will want to know the proposed appeal is not hopeless.
- Absence of prejudice to the respondent.
The affidavit should come from someone with direct knowledge of the delay. Where the reason is that instructions were late, that is the client’s evidence; where it is that the transcript was not produced, it is the lawyer’s.
An extension order is itself appealable — with leave
No appeal lies without leave from an order allowing an extension of time for appealing or applying for leave to appeal.
So a respondent unhappy that an extension was granted may challenge it, but must first obtain leave. See whether you need leave.
Once the 40 days has gone
The power in sections 17 and 29(2) is conditioned on an application inside the period. After that, it does not exist.
In Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 the Court held the right to appeal is lost on failure to comply, and that Constitution section 155(4) does not empower the Court to waive non-compliance.
What remains is the separate section 155(2)(b) review jurisdiction — discretionary, and available only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, with the onus on the applicant.
Sources
- Supreme Court Act (Chapter 37) — ss 10, 14, 17, 29
- Supreme Court Rules 2012 — O 7 rr 1, 2; Form 4
- Constitution — s 155
- 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.