What Happens If I Miss the Appeal Deadline?

No power to extend after the period

Section 17 of the Supreme Court Act allows a further period on application made… within that period of 40 days. Section 29(2) is to the same effect for criminal appeals.

Once the period has expired without a notice and without an extension application, there is nothing left to extend.

Avia Aihi v The State (No 1) [1981] PGSC 9; [1981] PNGLR 81

The applicant had lost the right to appeal by failing to give notice in time. The Supreme Court held:

The time limit is valid. It validly regulates the right to “review of… sentence… according to law” guaranteed by Constitution section 37(15).

The right is lost. The right to appeal or to apply for leave is lost on failure to comply.

Section 155(4) does not save it. The inherent jurisdiction to make such orders as are necessary to do justice does not empower the Court to waive non-compliance. Saki v The State [1980] PNGLR 33, Mathias Evertz v The State [1979] PNGLR 174 and Launce Vetari v The State were distinguished. Greville Smith and Kapi JJ dissented on this point.

But section 155(2)(b) is a separate jurisdiction. The inherent power to review all judicial acts of the National Court invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal or an application for leave although the applicant has lost the right.

The discretion is narrow. It should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being upon the applicant.

Five steps

1. Establish the exact date of judgment or conviction, and confirm the period really has expired. Section 17 runs from the date of the judgment; section 29 from the date of conviction, not sentence.
2. Check whether anything was filed in time. A Form 4 extension application, or a notice of appeal covering some grounds, changes the position entirely.
3. Do not file an extension application. There is no power to grant one, and filing it wastes the only time you have.
4. Consider section 155(2)(b) review under Order 5 of the Rules.
5. Move immediately. Delay after discovering the problem is itself a factor against the applicant on a discretionary application.

Four things worth checking

1. Was the date really the date you think? Section 17 runs from the date of the judgment; section 29 from the date of conviction, not sentence. Where conviction and sentence were weeks apart, the position on each may differ.
2. Was anything filed in time? A Form 4 extension application filed on day 39, even if never heard, changes everything — the section 17 power was validly invoked.
3. Does part of the appeal survive? Where a notice was filed in time for some grounds, the appeal exists, and the question becomes whether further grounds can be added — governed by Order 7 Rule 26, which bars a new ground after the expiry of 40 days.
4. Is there in fact no right of appeal at all? If the Act never gave one — a consent order, or a decision of the kind considered in Leahy — then you are not “out of time” and the easier test applies.

Address the delay squarely

The application must confront, not skate over, the failure to appeal in time. Set out what happened in each period between judgment and application — illness, custody, remoteness, late discovery that the decision had been made, or a lawyer’s failure.

Then show what makes the case exceptional: the gravity of the consequences, the clarity of the error, the absence of any other remedy. And address prejudice — that the respondent can still meet the case.

See applying for review out of time and what leave for review requires.