The 40-day limit is the hardest rule in Supreme Court practice, and most of the cases about it involve a lawyer who diarised the wrong date, waited for instructions, or assumed time ran from the sealed order. The client bears the consequences in the appeal and must look to the lawyer for compensation.
The rule and its trap
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 judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.
Section 29 says the same for criminal appeals. The trap is the last clause: the application to extend must itself be made within the 40 days. A lawyer who realises on day 41 that no notice has been filed cannot apply for an extension. In Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112 the 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 filed outside it was incompetent. Time runs from the date the judgment is pronounced, not from when the order is sealed or the reasons are received. See when the time for appealing starts running.
What can still be done
| Situation | Option |
|---|---|
| Within 40 days, notice not yet ready | File a bare notice of appeal or leave application now and amend later; or apply to a Judge in Form 4 for an extension under s 17, with an affidavit |
| Day 41 onwards, no extension sought | Apply for leave to review under Constitution s 155(2)(b) and Order 5; explain the delay, show a serious point and prospects; act immediately |
| Notice filed in time but served late | Not fatal by itself; apply for directions and explain; see O 7 r 13 |
| Notice filed in time but in the wrong form or without required particulars | Amend under O 7 r 25; leave needed after 40 days; the Court is more lenient with form than with time |
| Judgment was interlocutory and leave was not sought | Same as day 41: review is the only route; the Court asks why the point was not taken |
| Criminal appeal, prisoner unrepresented | The Court is more forgiving: Damane v The State treats a prisoner appeal and delay in assigning a lawyer as exceptional circumstances |
See what happens if you miss the appeal deadline and applying for review when out of time.
How the Court treats the lawyer’s default
On a review application the Court asks for a reasonable explanation of the delay. That the lawyer forgot, was overworked, or misunderstood the rule is an explanation, and the Court does not visit every lawyer’s error on the client. But the Court also holds that a litigant who chooses a lawyer takes the lawyer’s conduct, that ignorance of the Rules by a lawyer is not a good reason, and that the longer the delay after the error was discovered the less the explanation is worth. The applicant must therefore show what was done the moment the error came to light, and the lawyer’s affidavit must be candid. An applicant who sat on the problem for months has no explanation at all.
The client’s remedies against the lawyer
A lawyer who lets a limitation period expire is liable in negligence for the loss of the chance of a successful appeal, valued by the prospects the appeal had. The claim is brought in the National Court under the ordinary law of professional negligence, and the Lawyers Act allows a complaint to the Lawyers Statutory Committee. Within the Supreme Court, Order 12 Rule 11 lets the Court disallow the lawyer’s costs against the client and order the lawyer to indemnify the client against costs ordered to the other side, for example the costs of a failed review application caused by the lawyer’s default. See whether the Court can order a lawyer to pay costs.
Avoiding it
Diarise 40 days from the date the judgment is delivered, not the sealed order. If instructions or funds are uncertain, file a protective notice or a Form 4 extension application before day 40; a Judge lists extension applications as soon as practicable under Order 7 Rule 2. Check whether leave is needed and file Form 7 with the notice. And count time correctly: the Rules and the Interpretation Act exclude the day of the judgment. See how time is counted and extensions of time to appeal.
Sources
- Supreme Court Act (Chapter 37) — ss 17, 29
- Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
- Damane v The State [1991] PNGLR 244
- Constitution — s 155(2)(b)
- Supreme Court Rules 2012 — O 5; O 7 rr 1–4, 13, 25; O 12 r 11; Forms 4, 7
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.