Most of the periods in Supreme Court practice are short, and several are jurisdictional. Counting them correctly is not a formality.
Days mean days
The periods in the Supreme Court Act and the Supreme Court Rules 2012 are expressed in days, without qualification. They are calendar days.
Sections 17 and 29 say 40 days. Order 7 Rule 6 says 21 days. Order 7 Rule 15 says 14 days. None says “clear days” or “working days”, and weekends and public holidays are counted.
Sections 17 and 29 run after the date of the judgment or conviction. The day itself is not counted; the following day is day 1.
Order 7 Rule 6 uses a different phrase — within 21 days immediately after the date on which leave is granted — to the same effect.
Where the Rules do say “clear”
The appellant shall serve the draft index on the respondent a reasonable time before the appointment to settle the appeal book but no later than two clear days before settlement.
Clear days exclude both the first and the last day — so two clear days before a Friday settlement means service by Tuesday, not Wednesday.
Because the Rules use the phrase only where they mean it, the ordinary periods should not be read as clear days. Where a rule says simply 14 days, count 14.
The periods in one place
| Step | Period | Runs from |
|---|---|---|
| Notice of appeal / application for leave | 40 days | Date of judgment; date of conviction |
| Application to extend that time (Form 4) | Within the same 40 days | Date of judgment |
| Notice of appeal after leave | 21 days | Date leave is granted |
| Objection to competency (Form 9) | 14 days | Service of the notice or application |
| Adding a new ground of appeal | Not after 40 days | Date of judgment |
| Draft index served on respondent | No later than two clear days before | Settlement |
| Further evidence: notice and affidavit | Not later than 21 days before | Hearing of the appeal |
| Further evidence: other party’s affidavit | Not later than 14 days before | Hearing of the appeal |
| Written submissions by appellant | 10 days | Receipt of the direction |
| Entry of judgment for taxed costs | 14 days | Service of the certificate of taxation |
| Appearance by a party ceasing to be under disability | 30 days | Ceasing to be under the disability |
Registry closures
Sections 17 and 29 fix the period by statute. Neither contains a provision extending it where the last day falls on a day the Registry is closed.
The safe assumption is that a period ending on a weekend or public holiday must be met before it. Do not plan to file on day 40 and hope the Registry opens.
Where a genuine difficulty is foreseeable, the answer is the Form 4 application under Order 7 Rule 1 — filed, of course, inside the 40 days.
Periods counted back from a hearing
Order 7 Rule 57 — on further evidence, the applicant shall file the notice and any affidavit not later than 21 days before the hearing of the appeal.
Order 7 Rule 58 — the evidence of any other party shall, unless the Court or a Judge otherwise orders, be given by affidavit filed not later than 14 days before the hearing.
Order 7 Rule 41 — the draft index shall be served no later than two clear days before settlement.
These periods run before an event rather than after one, so the arithmetic is reversed: identify the hearing date, then count back. A hearing on the 30th means a Rule 57 filing by the 9th.
If the hearing date moves, the deadlines move with it — but a party who has already missed one does not gain by an adjournment, because the default has already occurred.
Which periods can be extended, and how
Statutory periods — sections 17 and 29. Extendable only on an application made within the period itself. After that there is no power. Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 holds that Constitution section 155(4) does not empower the Court to waive non-compliance.
Rule-made periods — those in the Rules themselves. Several carry their own extension mechanism: Order 7 Rule 6 allows further time for the notice of appeal; Rule 58 allows the Court or a Judge to order otherwise for answering affidavits. Where a rule is silent, Order 11 Rule 9 allows a person to apply to a Judge for directions where the manner or form of a procedure is not prescribed.
A missed rule-made step can usually be cured by application, and Order 7 Rule 48 gives the Court a discretion to fix a time peremptorily rather than dismiss.
A missed statutory period cannot be cured at all. That is why the 40 days deserves different treatment from every other date in the appeal.
Sources
- Supreme Court Act (Chapter 37) — ss 17, 29
- Supreme Court Rules 2012 — O 7 rr 1, 6, 15, 26, 41, 48, 57, 58; O 11 rr 2, 9; O 12
- Constitution — s 155(4)
- 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.