There is no separate, longer period for a leave application. It shares the appeal deadline, and that catches people out.
The provision
Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.
An extension is available — but only on application made… within that period of 40 days.
The application for more time must itself be brought inside the original period. Once the 40 days has run without such an application, there is no power to extend. That is the single most important sentence in Supreme Court practice.
Confirmed for leave applications
The Supreme Court held that an application for leave to appeal against an interlocutory judgment must be filed within the 40-day limit, and that a supplementary notice of appeal filed outside it was incompetent.
The appeal was from a guarantee dispute, and the Court went on to deal with the summary judgment point. But the competency holding is the one cited: the leave application is governed by the same period as the appeal.
The date of the judgment
Section 17 runs from the date of the judgment in question. Not the date the reasons were published, not the date the order was sealed, and not the date you were told.
“Judgment” is defined in section 1 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 starts the clock as surely as a grant.
In criminal matters section 29(1) runs the 40 days from the date of conviction.
Transcripts and written reasons frequently take longer than 40 days. That does not stop time running.
File within the period on the material you have. Order 7 Rule 10 requires particularity, but a notice can be amended by supplementary notice before the appointment to settle — whereas an appeal never filed cannot be revived.
Note the limit on that: Order 7 Rule 26 provides that the addition of a new ground of appeal shall not be made after the expiry of 40 days after the date of the judgment, or such further period as has been allowed by a Judge within those 40 days.
The Form 4 application
A person who desires to apply for a further period in which to lodge a notice of appeal or an application for leave to appeal shall, within 40 days after the date of the judgment, file and serve on all parties (or their lawyers):
(a) an application in Form 4 setting out (i) the date of the judgment; (ii) the grounds relied on for an extension; (iii) the further period sought; and
(b) a supporting affidavit (i) annexing a copy of the judgment, or a transcript, or if neither is available a summary of the decision; and (ii) deposing as to why the additional time is required.
Order 7 Rule 2: the Registrar shall take all steps necessary to have the application heard by a Judge as soon as is practicable after filing.
Rule 1(b)(ii) requires evidence of why more time is needed. A bare assertion that the transcript is outstanding is weak; evidence of when it was requested, from whom, and what has been done since is not.
Note the sensible concession in Rule 1(b)(i): where no judgment or transcript is available, a summary of the decision will do. The Rules anticipate exactly the situation that causes most extension applications.
And then 21 more days
When leave to appeal has been granted, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted, or within such further time as the Court or a Judge may allow on application filed and served within that 21 days.
The same structure recurs: the extension must be sought inside the period it extends.
Obtaining leave does not institute the appeal — Order 7 Rule 7 provides that an appeal shall be instituted by a notice of appeal.
If the 40 days has gone
In Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81 the Court held that the time limit validly regulates the right of review guaranteed by Constitution section 37(15); that the right to appeal is lost on failure to comply; and that section 155(4) does not empower the Court to waive non-compliance.
But section 155(2)(b) gives an unfettered discretionary jurisdiction to hear a matter although the right to appeal has been lost — exercisable only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, with the onus on the applicant.
See missing the deadline and applying for review out of time.
Sources
- Supreme Court Act (Chapter 37) — ss 1, 17, 29
- Supreme Court Rules 2012 — O 7 rr 1, 2, 6, 7, 10, 26; Form 4
- Constitution — ss 37(15), 155
- Tsang v Credit Corporation (PNG) Ltd [1993] PGSC 18; [1993] PNGLR 112
- 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.