The starting point is fixed by statute and is not adjusted for the practical difficulties that follow a judgment. Knowing precisely when the clock started is the first thing to establish.
The date of the judgment
Notice must be given within 40 days after the date of the judgment in question.
Publication of written reasons. Where a judge pronounces a decision and reserves reasons, time runs from the pronouncement.
Sealing or entry of the order. That is an administrative step.
Service of the order on you. Section 17 is not framed by reference to knowledge.
Receiving the transcript. Transcripts routinely take longer than 40 days. Time does not wait.
The statutory definition
“Judgment” includes 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.
The inclusion of a refusal to make an order matters. Where an application below was dismissed, the dismissal is itself a judgment, and the 40 days runs from it.
The Rules use a narrower definition for their own purposes. Order 1 Rule 7(1) defines “judgment” as the judgment, decree, order or sentence of a court or a judge under appeal or in respect of which leave to appeal is sought — that is, the thing being challenged.
The date of conviction
Where a person convicted desires to appeal or to obtain leave to appeal, he shall give notice within 40 days after the date of conviction.
This is a genuine trap. Where a person is convicted on one date and sentenced weeks later, the 40 days for an appeal against conviction runs from the earlier date.
An appeal against sentence under section 22(d) is a different complaint, but section 29(1) speaks only of the date of conviction. A person intending to appeal both should treat the conviction date as the operative one and file within 40 days of it.
Section 1(2) adds that where a person is acquitted on the ground of unsoundness of mind which was not set up by him, he is deemed to have been convicted, and any order to keep him in custody is deemed to be a sentence.
Counting the 40 days
Both sections say after the date of the judgment or conviction, so the day of the judgment itself is not counted. Day 1 is the following day.
The period is 40 days, not forty working days. Weekends and public holidays are included.
See how time is counted.
The practical discipline is to fix the last safe date the moment judgment is given, and to work back from it: when the notice must be settled, when instructions must be taken, and when — if more time is needed — the Form 4 application must be filed. That application must itself be inside the 40 days.
The exhibits are held for the same period
Where an appeal may lie by leave or without leave, the officer of the National Court who has custody of the exhibits shall, unless the primary Judge otherwise orders, retain the exhibits —
(a) for 40 days after the date when the judgment is pronounced; or
(b) if within those 40 days leave to appeal is granted, for a further period of 40 days.
Rule 30 keys the retention period to the date the judgment is pronounced, which supports the reading that section 17 runs from pronouncement rather than from any later formal step.
The practical consequence is that a party who lets the 40 days pass may find the exhibits released. Reconstructing a record afterwards is difficult and expensive — see the collection of papers.
Proving when judgment was given
- The court’s record of the date of pronouncement — not the date on the reasons, which may differ where reasons were reserved and later published.
- The sealed order or minute, which records the date of the decision it perfects.
- Your own note of the hearing, and the associate’s if it can be obtained.
Where a decision was given orally with reasons to follow, the date of the oral pronouncement is the date to work from. Assuming otherwise is how appeals are lost.
If there is a real question about when judgment was given — a decision announced in chambers, or an order perfected long after the ruling — treat the earliest arguable date as the operative one and file from that.
An appeal filed early is never incompetent for being early. One filed late is incurable.
Where several decisions are involved
A proceeding may produce a series of rulings — an interlocutory decision, then a trial judgment, then an order as to costs. Each is a judgment within the section 1 definition, and each starts its own period.
A party who waits for the final judgment before appealing an earlier interlocutory ruling will be out of time for that ruling. The protection is Order 7 Rule 60: an interlocutory order or rule from which there has been no appeal shall not operate so as to bar or prejudice the court from giving such decision upon an appeal as may be just.
That prevents the unappealed ruling operating as an estoppel — but it does not convert it into a ground of appeal. See interlocutory judgments.
A second clock
When leave 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.
So a successful leave applicant has a fresh, shorter period, running from the grant — and the same structure applies: any extension must be sought within the period it extends.
Sources
- Supreme Court Act (Chapter 37) — ss 1, 17, 22, 29
- Supreme Court Rules 2012 — O 1 r 7; O 7 rr 1, 6, 30
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.