The phrase comes from the days when an appellant had to have his case placed on the court’s list. The step survives, with a 40-day deadline, and the National Court has had to explain more than once what it does and does not require.
The provisions
226(1) Within 40 days after the institution of an appeal, the appellant shall enter the appeal for hearing on a date to be fixed by the Registrar of the National Court. (2) An entry shall be made by delivering to the Registrar a memorandum in the prescribed form, signed by the appellant or by his lawyer and containing the prescribed particulars.
227 If, within 40 days after the institution of an appeal, the appellant does not enter the appeal for hearing, a Court or Magistrate has the same authority to enforce the conviction, order or adjudication as if it had not been appealed against.
The memorandum is Form 73, “Entry of appeal to National Court”. It identifies the appeal and asks the Registrar to fix a date. Institution, from which the 40 days run, is complete when both the notice of appeal and the recognizance under section 222 have been done.
Entry is not the appeal book
(1) Section 226 relates to the requirement that after lodging the appeal, the appeal must then be entered for hearing within 40 days. This is a mandatory requirement. Entry of appeal within 40 days is not the same as filing an Appeal Book; these are two different processes. (2) The Appeal Rules impose a mandatory obligation to compile an appeal book and file it before the appeal is fixed for hearing. (3) There is no requirement under the Act or the Rules to have appeal books filed and served within 40 days.
— Kawi J, PGNC 325 (2011)
Ngip Agmark v Laitia (2018) N7623 dealt with the same argument, a motion to dismiss because the appeal book was not ready before the entry of appeal was filed, and drew the same distinction between good practice and the actual requirement of section 226.
Should the appeal be ready before it is entered?
In Moses v Magiten (2000) N2023 and Rabaul Shipping v Ruru (2000) N2022 Kandakasi J treated filing a notice of entry of appeal when the appeal was not ready as an abuse of process, and expressed the view that an appellant should prepare the appeal for hearing during the 40 days before entering it. Later cases have read that as a statement of good practice rather than of what section 226 requires: the entry is a memorandum asking for a date, and the appeal book follows under the Rules. The safe course reconciles both: enter the appeal within 40 days without fail, and get the appeal book moving at once.
What follows under the Appeal Rules
Order 18 Division 1A of the National Court Rules supplies the rest of the timetable. On receipt of the notice of appeal the Registrar fixes a directions hearing within 14 days, at which the judge deals with representation, compliance with conditions precedent, the grounds and issues, the depositions and the magistrate’s reasons or report, typing of the transcript, compilation of the appeal book, and fixes a pre-hearing conference within 30 days. The appellant compiles the appeal book, which must be delivered and served seven days before the pre-hearing conference. The stages are described in appealing to the National Court from a lower court and how the appeal is conducted.
If the appeal is not entered
Section 227 has an immediate effect: the District Court may enforce. A warrant of execution or commitment may issue, and a convicted appellant released under section 223 is liable to be returned to custody. The appeal itself is not automatically dead, but a respondent may move to dismiss it for want of prosecution, as in Moses and Rabaul Shipping, and under Order 18 rule 7(1)(c) and rule 10(4) the judge may summarily determine an appeal that fails to comply with the statutory procedure. An appellant who has missed the 40 days should apply at once under section 231 for an extension, by originating summons under Order 18 rule 12(1), with an affidavit explaining the delay.
Practical steps in the 40 days
| Task | Why |
|---|---|
| Deliver the Form 73 memorandum to the Registrar and obtain a date | Section 226; the mandatory step |
| Confirm the Clerk has forwarded the depositions and exhibits under s 224, and any report under s 225 | Without them there is no appeal book |
| Arrange typing of a handwritten transcript and its certification by the Clerk | Order 18 rule 6(3) |
| Draft the appellant’s summary of argument for the appeal book | Order 18 rule 6(5) |
| Apply for a stay of enforcement if needed | Order 18 rule 12(2) |
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. 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.