The Magistrates’ Manual notes that an appeal must normally be commenced within a month, that the National Court may extend that time, and that there is no limit on the extension it may grant. The cases show how reluctantly that power is exercised.
The one-month limit
| Step | Section |
|---|---|
| Lodge the notice of appeal with the Clerk of the District Court | s 220(2) |
| Serve a copy on each respondent | s 221(2)(a) |
| Serve a copy on the Registrar of the National Court | s 221(2)(b) |
| Enter into the recognizance with a surety, or make the deposit | s 222(1) |
All four run from “the day when the decision is pronounced”, that is the day the magistrate announced it in court, not the day written reasons arrived or the day a formal order was drawn up. Section 11 of the Interpretation Act excludes the day of the decision itself, and if the last day is a Sunday or public holiday the step may be taken on the next working day. A decision pronounced on 3 March must be appealed by 3 April.
The 40-day limit
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, by delivering a memorandum in the prescribed form (s 226). If he does not, a Court or Magistrate has the same authority to enforce the decision as if it had not been appealed against (s 227).
Institution is complete when both the notice and the recognizance are done, so the 40 days run from the later of them. What the memorandum is, and what the cases require of the appellant during the 40 days, is in entering the appeal for hearing.
Extension and dispensation
The National Court may (a) dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply; and (b) on application made ex parte by the party appealing, extend the time for compliance with a condition precedent.
Order 18 rule 12(1) of the National Court Rules requires applications for extension of time or dispensation to be instituted by originating summons, made ex parte, filed under an OS (App) reference. The judge conducting the Appeals List can also deal with non-compliance and dispensation at the directions hearing under rule 5(5)(b) and (c). The National Court’s general approach to extending time is in time limits for appeals to the National Court.
What the cases say
Nikints v Rumints [1990] PNGLR 123: the recognizance under section 222 is a mandatory requirement subsequent to institution, not a condition precedent, and cannot be waived under section 231; failure invalidates the appeal.
Moses v Magiten (2000) N2023 and Rabaul Shipping v Ruru (2000) N2022: lodging with the wrong court, failing to serve within time, and filing an entry of appeal when the appeal was not ready were held to be failures to comply with sections 220, 221, 222, 226 and 227 that were fatal, and the appeals were dismissed for want of prosecution with no reasonable explanation for the delay.
Thomas v Thomas (2011) N5142 and Ngip Agmark v Laitia (2018) N7623: entry within 40 days is mandatory, but it is a different thing from filing the appeal book, which has no 40-day limit.
“Whatever is reasonably practicable”
The dispensation power turns on effort. An appellant who lodged the notice in time but could not serve the respondent because he had left the district, and who can show the attempts made, has done what was reasonably practicable. An appellant who did nothing for six weeks has not. The extension power is broader but is exercised on ordinary principles: the length of and reason for the delay, whether the appeal has merit, and prejudice to the respondent. Because the application is ex parte, the affidavit must be candid.
Enforcement meanwhile
An appeal does not stay the decision. Section 227 lets the District Court enforce once 40 days have passed without entry, and section 11 lets it enforce once the appeal is decided against the appellant. A stay must be sought from the National Court by motion under Order 18 rule 12(2). A convicted appellant in custody applies under section 223 for release once the notice is served and the recognizance given. See release pending appeal.
At a glance
| Deadline | Runs from | Extendable? |
|---|---|---|
| Notice lodged and served: 1 month | Day of decision | Yes, s 231(b); dispensable, s 231(a) |
| Recognizance or deposit: 1 month | Day of decision | Not dispensable (Nikints); extension arguable but risky |
| Entry for hearing: 40 days | Institution | Yes, s 231; failure lets the decision be enforced, s 227 |
| Directions hearing: 14 days | Registrar’s receipt of the notice | Fixed by the Registrar under O 18 r 5 |
The District Courts Act is not on PacLII; it is available on vLex.
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.