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Tame (trading as Nicholas Tame Lawyers) v South Pacific Post Ltd (trading as Post Courier) [2025] PGSC 102; SC2748 (4 July 2025)

SC2748

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 6 OF 2025

BETWEEN:
NICHOLAS TAME t/as NICHOLAS TAME LAWYERS
Appellant

AND:
SOUTH PACIFIC POST LTD t/as POST COURIER
Respondent

WAIGANI: COLLIER J, WAWUN-KUVI J, KOSTOPOULOS J
4 JULY 2025

SUPREME COURT – PRACTICE AND PROCEDURE – Objection to competency of appeal – whether compliance with Order 7 Rule 9(b) and (e) and Form 8 of the Supreme Court Rules 2012 – appellant submitted non-compliance with Form 8 trivial and claims of respondent “nit-picking” – whether compliance with Form 8 mandatory – relevance of justice of the case in circumstances of non-compliance – principles of stare decisis

HELD:

The respondent (the publisher of a national newspaper in Papua New Guinea) published material on the front page of its newspaper the Post Courier regarding the appellant. The appellant commenced proceedings in the National Court of Justice alleging the material was defamatory within the meaning of the Defamation Act 1962. The primary Judge found that the material was defamatory, however the respondent was entitled to rely on defences pursuant to ss 7(a), 8(2)(c), 11 and 12 of the Defamation Act 1962.

The appellant appealed. The respondent objected to the competency of the appeal on grounds that the notice of appeal did not state whether the whole or part only and what part of the judgement of the National Court was the subject of the appeal, did not state the name of the primary Judge in the manner and form required by Form 8 of the Supreme Court Rules, and the individual grounds of appeal were inadequately particularised such that they did not constitute competent grounds of appeal.

Per Collier J (dissenting): the objection to competency of the appeal should be upheld. The prevailing weight of Supreme Court decisions is that compliance with the provisions of Order 7 Rule 9(b) and (e) and Form 8 of the Supreme Court Rules 2012 is mandatory, such that failure to strictly comply is fatal to an appeal. The Supreme Court should follow its previous decisions in accordance with the principle of stare decisis, as settled in such cases as Christian v Namaliu [1996] SC1583.

Per Wawun-Kuvi J and Kostopoulos J: the second ground of objection is dismissed because one or more of the grounds of appeal are competent. The costs of the appellant to be paid by the respondent.

Per Wawun-Kuvi J: the decision of the majority in Serowa v Dowa [2023] SC2381 should be followed. An objection to competency goes to the appeal’s competency, not the Notice of Appeal or just the grounds of the appeal. The first objection to competency was based on non-conformity with the precise wording of Rule 9(b) and (e) of the Supreme Court Rules, and the objection was trivial. The third ground of objection challenged the form of the Notice of Appeal, but the objection had no merit and was an exercise of nitpicking.

Per Kostopoulos J: the grounds set out in the Notice of Appeal clearly informed the respondent of the basis of the appeal so that the respondent could prepare its arguments. The submission of the respondent in respect of ground of objection 3 was far-fetched and fanciful. Absence of the primary Judge’s name in paragraph 5 was cured by clear and distinct reference elsewhere in the Notice of Appeal. Exceptions to the mandatory nature of the need to comply with Form 8 were recognised in Jay LW Contractors Limited v Covec (PNG) Limited [2023] SC2498. The incorrect terminology used by the appellant in the Notice of Appeal was not fatal. Ground of objection 1 was nitpicking. Ground of objection 3 not substantiated. The respondent suffered no prejudice by the completion of the Notice of Appeal form caused by “clerical errors”. The interests of justice dictate that the appeal should proceed. The current appeal will determine the laws and rights of litigants under the Defamation Act 1962. The strict application of the principle of stare decisis can calcify into injustice when precedent is applied with unyielding rigidity. Jurisprudence of former Australian High Court Justice Michael Kirby dictated that justice must take precedence over mechanical obedience to precedents or forms. International examples of where Courts declined to follow previous authorities discussed. The supremacy clause in the Constitution of Papua New Guinea meant that no precedent, whether colonial or at common law, could override entrenched and guaranteed rights to its citizens. Denial of the Notice of Appeal being heard on form not substance, and on trivial aberrations of clerical errors in the completion of Form 8, would offend the interest of justice and smother the Supreme Court’s discretion to dismiss the Notice of Objections.

Cases cited
Aihi v Isoaimo [2013] SC1276
Bank of Papua New Guinea v Ruh [2021] SC2124
Christian v Namaliu [1996] SC1583
Coca-Cola Amatil (PNG) Ltd. v Joshua Yanda [2012] SC1221
Ganzik v Iguan [2024] SC2572
Haiveta v Wingti (No.2) [1994] PNGLR 189
Idumava Investment Ltd v National Fisheries Authority [2013] SC1273
In re Application by Sakaire Ambo [2012] SC1195
In re Chan v Arendia [2007] SC858
Independent State of Papua New Guinea v Uddin [2022] SC2312
Ipili Porgera Investments Limited v. Bank South Pacific Limited and Resources & Anor [2007] SC1322
Jay LW Contractors Ltd v Covec (PNG) Ltd [2023] SC2498
Kauba v Willie [2021] SC2162
Kelola v Augerea [2019] SC1829
Kimbu v Pakira [2023] SC2387
Layo v Pala [2024] SC2597
London Street Tramways Co Ltd v LCC [1898] UKHL 1
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Mamtirin v Donnelly [2024] SC2708
National Development Bank v Noka Builders Limited [2024] SC2703
R v Bedford [2013] 3 SCR 1101
R v Jogee [2016] UKSC 8
Ramu Nico Management (MCC) Ltd v Eddic Tarsi [2010] SC1075
Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511
Rural Technology Infrastructure Ltd v Paradise Foods Ltd [2015] SC1408
Sauwan Rai v Cornelius Aku Imbuni [2021] SC2080
Scruttons Ltd v Midland Silicones Ltd [1962] AC 446; [1961] UKHL 4
Serowa v Dowa [2023] SC2381
Talibe Hegele v Tony Kila [2011] SC1124
The Independent State of Papua New Guinea v Nick Betanjo and 100 Others Named in the Schedule [2023] SC2378
Turia v Nelson [2008] SC949
Wereh v Wamuk [2023] SC2424
Yambaki Surveys Limited v Nambawan Super Limited [2020] SC1901
Yambaki Surveys Ltd v Nambawan Super Ltd [2020] SC1901

Counsel

Mr P.H. Pato for the appellant
Mr I Shepherd for the respondent

REASONS FOR JUDGMENT

1. COLLIER J: I have had the opportunity to read in draft the reasons for judgment of Justice Wawun-Kuvi and Justice Kostopoulos in this case. I do not agree with the reasons, the conclusions, or the proposed orders of their Honours.
2. Before the Court is a notice of objection to competency, filed on 17 February 2025 by the respondent to the substantive appeal in these proceedings. The notice of objection challenges the competency of the appeal referable to the notice of appeal filed by the appellant on 19 January 2025. The appeal is from a decision of the National Court of Justice in proceedings WS No. 368 of 2013, delivered on 16 December 2024, being Tame (trading as Nicholas Tame Lawyers) v South Pacific Post Ltd (trading as Post Courier) [2024] N11114.

BACKGROUND

3. For convenience, I will continue to refer to the respondent to the appeal as “the respondent”, notwithstanding that it is the applicant to the notice of objection currently before the Court. Similarly, I will refer to the appellant to the appeal as “the appellant”.
4. The respondent is company which publishes national newspapers throughout Papua New Guinea, including the Post Courier.
5. The appellant is a law firm practising in Papua New Guinea, the principal of which is Mr Nicholas Tame. At material times Mr Tame was a lawyer and politician in Papua New Guinea.
6. The decision the subject of the appeal concerned publication by the appellant on 2 August 2010 of material on the front page of the Post Courier. The appellant claimed that the material defamed him in breach of the Defamation Act 1962.
7. The primary Judge found that, indeed, the relevant material was defamatory of the appellant. However, as his Honour observed:
   3. Under section 7 (a), a person does not incur liability for defamation by publishing a defamatory matter in the course of a court proceeding. Under section 8(2)(c), it is lawful to publish in good faith for the information of the public a fair report of the proceeding of a court, whether the proceedings are preliminary, interlocutory or final, or of the result of any such proceedings. Under section 9(1)(d), it is lawful to publish a fair comment respecting the merits of a civil case that has been decided by a court. The defendants also claim qualified protection under section 11(1)(c), (e) and or (h). The claim would fail if any of these protections is established.
   4. The article is prima facie a defamatory matter and I so find as a matter of fact. I do understand that the plaintiff was hurt by the article to the point where people and colleagues would have a negative perception of him. However, if the defendant is covered by a protection under the Act, there is nothing much the plaintiff could do except to move on with life.

9. Accordingly, the issues are:

Whether the defendant is protected under section 7(a)?
Whether the defendant is protected under section 8(2)(c)?
Whether the defendant is protected under section 9(1)(d)?
Whether the defendant is protected under section 11(1)(c)(e)(h)?

8. The primary Judge noted that various injunctive orders had been made against all parties.
9. His Honour then turned to the protective provisions under the Defamation Act 1962.
10. Section 7(a) of the Defamation Act 1962 provides that a person does not incur liability for defamation by publishing defamatory matter in the course of a proceeding held before or under the authority of a court. His Honour said:
    7. I have carefully considered the offending article with the orders and the pleadings. In my considered opinion, there is no demonstration of bad faith or malice by the defendant or its reporter. In my view, it was a fair report of the proceeding. The plaintiff took issue with the article stating that the funds in question were the subject of a “major fraud investigation”. The pleadings alleged fraud and conspiracy. Payments were particularized, including amounts, payees, cheque numbers, and dates of payment. The amount of money involved was more than K1 million. Bank Account details were pleaded. The plaintiff allegedly received K320,000. In my view, given the amount in question, it is fair reporting to use such description.
    8. The totality of all the above, in my considered opinion, demonstrates good faith and fair reporting. I find therefore that the defendant is entitled to the protection under section 7(a).
11. Section 8(2)(c) of the Defamation Act 1962 provides that, for the purposes of that Act, it is lawful to publish in good faith for the information of the public a fair report of the public proceedings of a court, whether the proceedings are preliminary, interlocutory or final, or of the result of any such proceedings. The primary Judge at [9] noted that he had already addressed this issue, and found that the article was a fair report of a court proceeding. It followed that the respondent was protected under s 8(2)(c).
12. Section 9(1)(d) of the Defamation Act 1962 provides that, for the purposes of that Act, it is lawful to publish a fair comment respecting the merits of a case, civil or criminal, that has been decided by a court; or the conduct of a person as a Judge, magistrate, party, witness, lawyer or officer of the court, in any such case; or the character of any such person, so far as his character appears in that conduct. The primary Judge found at [10] that s 9(1)(d) was irrelevant because the article published by the respondent was not a commentary on the merits of the case, or the conduct or character of anyone including the appellant.
13. Section 11(1)(c), (e) and (h) of the Defamation Act 1962 provide that, for the purposes of that Act, it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith:

(c) for the protection of the interests of the person making the publication or of some other person, or for the public good;
...
(e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed on reasonable grounds by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances; or
...
(h) in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.

14. The primary Judge observed at [11]-[12] that good faith is one of the ingredients of protection under the section, that there was no bad faith in the publication of the defamatory article, and it followed that the respondent was entitled to protection under s 11.
15. Finally, the primary Judge concluded that, under s 12 of the Defamation Act 1962, the onus is on a plaintiff to show absence of good faith, and there was absolutely no evidence of this in the present case.
16. Accordingly, his Honour dismissed the appellant’s claim.

NOTICE OF APPEAL

17. The Notice of Appeal filed by the appellant was in the following terms:

NOTICE OF APPEAL

1. THE APPELLANT appeals from the Orders and Judgment of His Honour Justice Manuhu dated 16th December, 2024, made in the National Court at Waigani in proceedings WS No 368 of 2013- Nicholas Tame Trading as Nicholas Tame Lawyers -v- South Pacific Post Ltd Trading as Post Courier (the "proceedings" hereafter), whereby His Honour dismissed the Plaintiffs' claim.
2. THE APPEAL lies without leave pursuant to Section 14(1) (a) & (b) of the Supreme Court Act as the appeal involves orders and decision of a final nature.

GROUNDS
3.1 The trial judge erred in law in holding that there was no demonstration of bad faith or malice by the Respondent or its reporter by considering only the news article, the court orders and the pleadings relating to the court proceeding (subject of the news article) and not considering and analysing the evidence.
3.2 The trial judge erred in both law and in fact by failing to consider, analyse and draw conclusions from the totality of the evidence relating to the court proceeding that constituted the news article.
3.3 The trial judge erred in law in holding that there was no demonstration of bad faith or malice by the Respondent or its reporter when deliberating on the defence of absolute protection of official reports under Section 7 (a) of the Defamation Act Chapter 293 (the “Act”) as Section 7 of the Act does not deal with the defence of bad faith or malice.
3.4 The trial judge erred in both law and fact by holding that:

(a) the news article was a fair report of the court proceeding when the evidence proved that the news article failed to retain substantial accuracy of the facts of the court proceeding; and
(b) the news article was a fair report of the court proceeding when he failed to consider that the article contained untrue statements and contrary to the documents used in the court proceeding, in a material particular that was prejudicial to the Appellant's reputation when it reported that the Appellant and the Member of Parliament were restrained from accessing K1.5 million in their personal bank accounts.

3.5 The trial judge erred in both law and fact by failing to hold that:-

(a) the news article was a fair report of the court proceeding when the evidence proved that the news article failed to retain substantial accuracy of the facts of the court proceeding; and
(b) the protection under Section 11 (1) ( e) of the Act was not available as the article was ill-researched and based on false assertion of facts rather than on opinion of the Respondent's reporter; and
(c) the Respondent failed to prove the purpose of serving the public good and the effect by publication of the article in serving the public good.

4. ORDER SOUGHT

1. The appeal be allowed.
2. The Orders of His Honour Justice Manuhu made 16th December, 2024 be quashed.
3. The proceedings WS No. 368 of 2013 be reinstated.
4. Judgment on liability be entered against the Respondent.
5. The matter be remitted to the National Court to be tried before another Judge for assessment of damages.
6. The Respondent to pay the Appellant's costs of the appeal.
7. Such other or further orders as this Court deems fit.

5. A transcript is required.

NOTICE OF OBJECTION TO COMPETENCY

18. The respondent objected to the competency of the appeal, relying on the following grounds of objection:
    1. The appeal fails to comply with Order 7 Rule 9(b) and (e) and Form 8 of the Supreme Court Rules 2012 (as amended) in that the Notice of Appeal filed on 19 January 2025 does not state whether the whole or part only and what part of the judgement of the National Court made on 16 December 2024 in WS No. 368 of 2013 is appealed from.
    2. All the grounds of appeal set out in the Notice of Appeal filed on 19 January 2025 fail to satisfy the mandatory requirements of Order 7 Rule 9(c) and 10 of the Supreme Court Rules 2012 in that:
       1. As to ground 3.1, it is alleged that the trial judge erred in law “in holding that there was no demonstration of bad faith or malice by the Respondent ... by considering only the news article, the court orders and the pleadings ... and not considering and analysing the evidence”. This ground:
          1. does not state with any particularity the reasons why the trial judge was wrong in law; and
          2. fails to demonstrate with any particularity why the trial judge's decision was against the weight of the evidence, and what he ought to have found.
       2. As to ground 3.2, it is alleged that the trial judge erred in both law and fact “by failing to consider, analyse and draw conclusions from the totality of the evidence”. This ground:
          1. does not state with any particularity the reasons why the trial judge was wrong in law and fact;
          2. fails to demonstrate with any particularity why the trial judge's decision was against the weight of the evidence, and what he out to have found.
          100. As to ground 3.3, it is alleged that the trial judge erred in law "in holding that there was no demonstration of bad faith or malice ... when deliberating on the defence of absolute protection of official reports under Section 7(a) of the Defamation Act. .. as Section 7 does not deal with the defence of bad faith or malice." This ground does not state with any particularity the reasons why the trial judge was wrong in law or what he ought to have found.
       4. As to ground 3.4(a), it is alleged that the trial judge erred in both law and fact “by holding that the news article was a fair report of the court proceeding when the evidence proved that the news article failed to retain substantial accuracy of the facts of the court proceeding”. This ground fails to demonstrate with any particularity why the trial judge's finding was wrong in law and fact or against the weight of the evidence, and what he ought to have found.
       5. As to ground 3.4(b ), it is alleged that the trial judge erred in both law and fact “by holding that the news article was a fair report of the court proceeding when he failed to consider that the article contained untrue statements and contrary to the documents used in the court proceeding, in a material particular ... when it reported that the Appellant. .. were restrained from accessing K1.5 million in their personal bank accounts.” This ground fails to demonstrate with any particularity why the trial judge's finding was wrong in law and fact or against the weight of the evidence, and what he ought to have found.
       6. As to ground 3.5(a), it is alleged that the trial judge erred in both law and fact “by failing to hold that the proceeding being a subject of the public interest, the Respondent had a duty to ensure ... that its article was accurate, fair and objective”. This ground does not state with any particularity why the trial judge was wrong in law and fact and what he ought to have found.
       7. As to ground 3.5(b), it is alleged that the trial judge erred in both law and fact “by failing to hold that the protection under Section 11(1)(e) of the Act was not available as the article was ill-researched and based on false assertion of facts rather than on opinion of the Respondent's reporter.” This ground does not state with any particularity why the trial judge was wrong in law and fact and what he ought to have found.
       8. As to ground 3.5(c), it is alleged that the trial judge erred in law and fact “by failing to hold that the Respondent failed to prove the purpose of serving the public good and the effect by publication of the article in serving the public good”. This ground does not state with any particularity why the trial judge was wrong in law and fact and what he ought to have found.
    3. The appeal fails to comply with Order 7 Rule 9(e) and Form 8 of the Supreme Court Rules 2012 (as amended) in that the Notice of Appeal filed on 19 January 2025 is not in accordance with Form 8 of the Supreme Court Rules 2012 (as amended) as it does not state the name of the primary judge in the manner and form that is required by and prescribed in Form 8 of the Supreme Court Rules 2012 (as amended).
19. At the hearing of the notice of objection to competency on 27 June 2025, both Counsel for the parties first addressed grounds of objection 1 and 3 concerning the form of the notice of appeal. Following a short adjournment, the Court reserved its decision in relation to grounds of objection 1 and 3 before proceeding to hear arguments of both Counsel relating to ground of objection 2.

CONSIDERATION

20. I am of the view that the appeal is incompetent under grounds of objection 1 and 3 alone. It follows that it is unnecessary to consider ground of objection 2.
21. I so find for the following reasons.

Compliance with form of appeal is mandatory

22. First, there is overwhelming and conclusive authority from decisions of the Supreme Court of Justice that strict compliance with the Supreme Court Rules 2012 (the Rules) referable to notices of appeal, including the form of such notices, is mandatory, and that failure to comply is fatal to the competency of an appeal.
23. The notice of objection to competency, in part, challenges the competency of the appeal on the basis that the notice of appeal does not comply with Order 7 Rules 9(b) and (e) of the Rules. Those rules read as follows:

ORDER 7—APPEALS
....
9. The notice of appeal shall–
...
(b) state whether the whole or part only and what part of the judgment is appealed from; and
...
(e) be in accordance with form 8; and
...

24. The form of a notice of appeal is prescribed as Form 8 under Schedule 1 of the Rules as follows:

Form 8—Notice of Appeal
...
NOTICE OF APPEAL

1. THE Appellant appeals from the whole (or if a part specify part) of the judgment of (specify National Court or National Court Judge) given on (specify date) at (place).
2. (Where applicable) THE appeal lies without leave OR (where applicable) THE appeal is brought pursuant to leave granted on (specify order)
3. GROUNDS (specify each particular ground by paragraph).
4. ORDER SOUGHT (state what judgment or order appellant seeks in lieu of the judgment appealed from).
5. The name of the primary judge is:
6. A transcript is/is not required.

...
(emphasis in original)

25. In the present case the respondent materially submitted that the appeal was incompetent because, in summary:
    • The notice of appeal was required to state in para 1 whether the whole or part only of the judgment was appealed, and what part of the judgment of the National Court was appealed. It did not, and as such failed to satisfy the requirements of Order 7 Rule 9(b) and (e), and the prescribed Form 8, of the Rules.
    • The notice of appeal was required to state in para 5 the name of the primary Judge. It did not, and as such failed to satisfy the requirements of Order 7 Rule 9(b) and (e), and the prescribed Form 8, of the Rules.
26. The respondent relied on Supreme Court authorities finding that such failures to comply with the Rules were fatal to the competency of an appeal.
27. In National Development Bank v Noka Builders Limited [2024] SC2703 the relevant notice of appeal failed to state whether it was against the whole or part of the primary judgment in that case, and what part of the judgment was appealed from. A Supreme Court constituted by Mogish, Murray and Geita JJ held:
    29. In this case, Mr. Joseph, in his submissions stated, the appeal is really against part of the National Court’s decision that allowed part of the claim to go through. Mr. Levy contended, despite what was submitted, the notice of appeal does not reflect that which is required in Order 7 Rule 9 (b) of the Supreme Court Rules. In other words, Mr. Levy contends that, Order 7 Rule 9 (b) of the Supreme Court Rules was not complied with, and so the appeal is incompetent and must be dismissed.

30. Order 7 Rule 9 (b) of the Supreme Court Rules is in the following terms:

The notice of appeal shall state whether the whole or part only and what part of the judgment is appealed from. (emphasis added)

31. The said rule is in mandatory terms. The Notice of Appeal by NDB at [1] reads:

“1. THE Appellant appeals against the decision of the National Court (constituted by the Honourable Justice Makail) given on the 12th day of July 2022 at Waigani in proceedings WS No. 131 of 2018 refusing the Appellant’s application to dismiss the entire proceedings as being time-barred and granting the Respondent leave to file an amended statement of claim together with consequential orders.”

32. In Nipo Investments Ltd, (supra) the Supreme Court, following the judgments in Bakani v Daipo (2001) SC659, Kukari v Polye (2008) SC907 and National Capital Limited v Bakani (2014) SC1392, held, an appeal may be incompetent if it fails to comply with mandatory requirements of the Supreme Court Act or Rules.
33. Applying the principles discussed to this case, the Notice of Appeal by NDB is incompetent in that it has failed to comply with Order 7 Rule 9 (b) of the Supreme Court Rules. It follows therefore that the appeal must be and is now dismissed.
28. In The Independent State of Papua New Guinea v Nick Betanjo and 100 Others Named in the Schedule [2023] SC2378 the notice of appeal filed by the appellant in that case failed to state whether the whole or part only and what part of the judgment was appealed from. A Supreme Court constituted by Hartshorn, Anis and Dingake JJ ruled:
    10. As is plain from the above, the Rule is couched in mandatory terms. The Appellants conceded it was not complied with.
    11. In our opinion the natural consequences that flow from such non compliance is that the Notice of Appeal is incompetent, and we so hold. We refer to Idumava Investment Ltd v National Fisheries Authority (2013) SC1273, Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408 and Sauwan Rai v Cornelius Aku Imbuni (2021) SC2080 as examples of appeals that were dismissed for failure to comply with mandatory Supreme Court Rules.
    12. In the result, this Appeal is liable to be dismissed in its entirety as we shall in due course direct.
    13. We do not think that the Respondents, although successful in their objection, are entitled to costs, given that the Objection to Competency was not formally filed and was only raised as part of their submissions.
    14. In the premises, this Court orders as follows:

a. The Objection to Competency is upheld and the Appeal is dismissed in its entirety;
b. There is no order as to costs.

29. In Mamtirin v Donnelly [2024] SC2708 the Supreme Court found that the notice of appeal filed by the appellant in that case failed to comply with Order 7 Rule 9(e) of the Rules in that it set out, in detail “Background Facts” for which there was no provision in the prescribed Form 8. Justices Hartshorn, Polume-Kiele and Carey relevantly held:
    16. Secondly, that “Background Facts” were included to assist the Court; we are not satisfied that it has been shown that in this instance that the “Background Facts”, constitute variations as the nature of the case requires as referred to in Order 1 Rule 8(ii) SCR, or constitute sufficient compliance as referred to in that Rule. Further, it is not an issue of any prejudice as submitted by the appellants, but a question of whether a mandatory Supreme Court Rule has been complied with.
    17. As compliance with Order 7 Rule 9(e) is mandatory by use of the word “shall” and the NOA in this instance is not in accordance with Form 8, as referred to, the NOA should be dismissed.

...

19. As a consequence, we are not satisfied that the purported grounds of appeal satisfy the mandatory requirements of Order 7 Rule 9(c) SCR.
20. Fourthly, as to the submission that the respondents have not raised any objections to the jurisdiction of the court to entertain the appeal, the bases upon which objection is taken by the respondents are the failures to comply with mandatory Supreme Court Rules. We refer to Serowa v. Dowa (2023) SC2381 [99] – [101] in this regard. Given the above it is not necessary to consider the other submissions of counsel
21. The objection to competency is upheld and the appeal should be dismissed.
30. In my view, these unanimous Supreme Court authorities are more than compelling to require that the objection to the competency of the appeal, as it relates to the form of the notice of appeal in the present case, be upheld.
31. Mr Pato for the appellant relevantly submitted that:
    • Any omission to refer to the appeal being from the whole or part of the primary judgment, or omission to specify which part, was trivial, and in any event it was clear that the appeal was from the whole of the primary judgment;
    • The omission of a paragraph numbered para 5 naming the primary Judge was trivial, because the primary Judge had been named in para 1 of the notice of appeal; and
    • In any event, it was appropriate for the Court to note relevant observations of Cannings J in Serowa v Dowa [2023] SC2381. In particular, in paras [18]-[19] of Serowa his Honour said:
      18. The first of those grounds is trivial. True it is that the supplementary notice of appeal fails to expressly state whether the whole or part only of the judgment of 4 January 2022 is appealed from. However the only reasonable inference to draw from the supplementary notice of appeal is that it is an appeal against the whole of the judgment. It can be read no other way. An express statement to that effect was unnecessary. If I am wrong in that view, a breach of Order 7 rule 9(b) is not a matter going to competency of the appeal. It is at most a procedural irregularity, which causes no prejudice. I dismiss this ground of objection.
      19. I make similar comments regarding the second ground. Paragraph 3 of the supplementary notice of appeal is confusing. It appears to be an application to introduce fresh evidence. It appears to be a procedural irregularity, which can be quickly resolved at the hearing, or before the hearing, of the appeal. It causes no prejudice. It is not a matter going to competency of the appeal. I dismiss this ground of objection.
32. In my view, these submissions have no merit.
33. Again, there is ample, compelling Supreme Court authority, not only from the cases I have cited but earlier cases cited in those decisions, that compliance with Order 7 Rule 9 and the prescribed Form 8 of the Rules is mandatory.
34. Further, and with great respect, the observations of his Honour at [18]-[19] of Serowa were those of a single Judge in a decision of the Supreme Court, where neither of the other members of the Bench specifically agreed with those observations. In Serowa at [155]-[160], Berrigan J agreed with Cannings J that the ground of appeal 4.1 in that case was competent, such that the objection to competency should be dismissed. However, there is no indication in her Honour’s judgment that her Honour agreed with Cannings J at [18]-[19].
35. I also consider, again respectfully, that the observations of Cannings J in Serowa at [18]-[19] were plainly counter to principles adopted in many Supreme Court authorities on this point.
36. I note that in Jay LW Contractors Ltd v Covec (PNG) Ltd [2023] SC2498 a Supreme Court bench comprised of Cannings, Toliken and Dowa JJ dismissed an objection to the competency of an appeal claiming non-compliance with the prescribed Form 8 of the Rules. Their Honours found that departure of the notice of appeal in that case from the prescribed form was immaterial, insignificant, and caused no prejudice or convenience to the respondent or the Court, and further that the ground of objection was trivial (at [12]). I also note however that the ground of objection in that case was that the signature of the appellant’s lawyer was placed above the date of the notice of appeal, not below (see at [10]). The Court noted that the signature of the lawyer was on the form – to that extent the notice of appeal was compliant with the Rules because all relevant information required by the prescribed Form 8 was included. In my view the decision in Covec is entirely distinguishable from the earlier authorities I have cited, and which are directly on point to the facts of the present case.

Doctrine of Stare Decisis

37. The second reason that I consider that the objection to the competency of the appeal must be upheld is closely related to my first reason. That is, the doctrine of stare decisis requires this Supreme Court to follow its earlier decisions, in the absence of exceptional circumstances (which have not been identified or substantiated by the appellant in this case).
38. As Viscount Simonds observed in Scruttons Ltd v Midland Silicones Ltd [1962] AC 446; [1961] UKHL 4, without the doctrine of stare decisis, the law is “at hazard”. The doctrine:

...is still the indispensable foundation of the use ... of the appellate jurisdiction of the House [of Lords] and its normal practice.
(Lord Hailsham of St. Marylebone in R v Cunningham [1981] UKHL 5; [1982] AC 566]

39. The doctrine of stare decisis was confirmed as operating in Papua New Guinea in the decision of the seven-member Bench of the Supreme Court in Christian v Namaliu [1996] SC1583. In that case Amet CJ, with whom on this point Kapi DCJ (at [139]), Salika J (as his Honour then was) (at [243]), Doherty J (at [274]) and Andrew J (at [279]), concurred, said:
    70. Schedule 2.9(1) of the Constitution provides:

“(1) All decisions of law by the Supreme Court are binding on all courts, but not on itself.”

71. The effect of this provision has been ruled upon by the Supreme Court in a number of cases since Independence. The first case post-independence was Public Prosecutor v John Aia of Mondo and Others [1978] PNGLR 224, in which the effect of this provision and the court’s power to review and overrule its earlier decision was considered. Only Wilson, J ventured to give an opinion on the effect of Sch 2.9 and the legal doctrine of stare decisis. He said at page 232:

“I realise that the Supreme Court is no bound by earlier decisions of the Supreme Court (see Sch 2.9 of the Constitution). Nevertheless the legal doctrine of stare decisis and the principles of judicial comity are such that an earlier decision of the Supreme Court should only be over-ruled great caution and in a clear case.”

...

74. In Motor Vehicles Insurance (PNG) Trust v Reading [1988] PNGLR 608 at p 610 the Court comprising Kidu CJ, Amet & Cory JJ said:

“Although this Court is not bound by its previous decisions (see sch 2.9(1) of the Constitution), it will not depart from them unless exceptional circumstances exist.”
...

90. It is trite that this Court is not bound by its previous decision by virtue of Sch 2.9(1) of the Constitution. But case authorities have established authoritatively that this provision and the power vested in the Court is not absolute. The qualifications and the basis upon which the Supreme Court may correctly invoke and exercise this power to review its own earlier decision should only be in a clear and proper case with the exercise of great caution in the most exceptional circumstances where the earlier decision can be said to be clearly and manifestly wrong and that is maintenance in injurious to the public interest. The Court being invited to review and reconsider its earlier decision will only do so after the most careful and respectful consideration of the earlier decision and after giving weight to all the circumstances, before a Justice may give effect to his own opinions in preference to an earlier decision of the Court. A decision to review and overturn an earlier decision will only be justified if the earlier judgement was given per in curiam, that is it was in conflict with some other decision of the court or with some well established principle that were binding on it. The Court reviewing and overturning an earlier decision will also have to consider what may be the consequences of doing so.
91. Applying these principles to the circumstances of this application, can it be said that this is a clear and proper case, where the circumstances are so exceptional and that the decision of a five member court presided over by the Chief Justice is so clearly or manifestly wrong and that its maintenance is injurious to the public interest that it should be reviewed and overruled?
92. In my respectful opinion, the plain answer to the question is NO. In my view the circumstances giving rise to this application do not warrant a review of the decision in SC 487, let along overruling it. This is not a proper case to invoke the per vested in this Court under Sch 2.9(1) of the Constitution. There are no exceptional circumstances in this case. The decision of the Court by a majority cannot be said to be clearly or manifestly wrong. It is not a decision per in curiam, where it can be said to be clearly or manifestly wrong. It is not a decision per in curiam, where it can be said to be in conflict with some binding authority or decision of this Court or another Court which this Court is bound by, or that it was in conflict with some well established principle which would permit this Court to readily review it. Nor, indeed can it be said that its maintenance would be injurious to the public interest.

(emphasis added)

40. More recently in Ganzik v Iguan [2024] SC2572 Geita, Lindsay and Shepherd JJ said:
    71. The law relating to the manner in which the Supreme Court deals with conflicting prior decisions of law is clear. The principles of law which have been developed by the Supreme Court in this regard emanate from Schedule 2.9 (1) of the Constitution which provides that all decisions of law by the Supreme Court are binding on all other courts, but not on itself. This is the constitutional recognition of the English common law doctrine of stare decisis, meaning “to stand by things decided”, which holds that it is necessary to abide by former precedents when the same points of law arise again in litigation.
    72. When conflicting decisions fall for consideration by the Supreme Court as to which of those decisions the Court should apply or should best have bearing on the particular circumstances of an appeal or review, the Court is not left in a vacuum. Guidance is given by numerous earlier decisions on point. Hartshorn J in the Supreme Court decision in Paraka v Peng (2016) SC1780 summarised the relevant principles, after considering earlier case authorities, and said this at para. 26:

Though the Supreme Court is not bound by its previous decisions, it should only overrule them with great caution, in exceptional circumstances, following full argument and preferably when the Court is comprised of a greater number of Judges than in the earlier case and perhaps when the Chief Justice is presiding.

73. Given that prior decisions of the Supreme Court are not binding on itself, in Hagahuno No. 2 Kandakasi DCJ expressly considered how the Supreme Court was to resolve its own two conflicting lines of authority, one in favour of the strict approach which had commenced with Biri v Ninkama in 1982 and had continued through to Dekena v Kuman in 2018 and beyond, and the very different liberal approach so clearly articulated in the 2012 case of Coca Cola Amatil (PNG) Ltd v Kennedy, reinforced in 2013 by Kikala v Electoral Commission and followed in many subsequent similar cases at both National Court and Supreme Court levels.
74. In the course of his Honour’s deliberations on this issue in Hagahuno No.2, Kandakasi DCJ specifically addressed the law relating to the principles which deal with conflicts in past precedent. His Honour summarised the application of those principles at para. 71 of the decision in Hagahuno No.2 as follows:

(a) [T]his five-member Supreme Court is not bound by its own earlier decisions starting from the three-member Supreme Court decision in Biri v Ninkama;
(b) in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court has not readily and easily departed from its earlier decisions;
(c) departure from Biri v Ninkama and the line of decisions following it have been called for and finally after more than 31 years later, this Court in Kikala v Electoral Commission departed from the decision in Biri v Ninkama and the various decisions that follow it:
(d) additionally, exceptional circumstances now exist which warrant a departure from the decision in Biri v Ninkama and its line of authorities because:

(i) that decision and those following it have misinterpreted, misconceived, mistook and or misunderstood the law as pointed out above which requires correction in the terms discussed;
(ii) the law pronounced or stated in the earlier decisions is no longer appropriate and applicable to the current prevailing circumstances and needs of the country for the reasons also given above; and
(iii) although the Chief Justice is not a part of this Court comprising of five Judges, His Honour then as Deputy Chief Justice was the president of the Court in Kikala v Electoral Commission which consciously commenced the departure from Biri v Ninama and its line of cases.

75. The decisions in Hagahuno No.1 and Hagahuno No.2 were each delivered by five-member benches of the Supreme Court. Moreover, the five-member Supreme Court in Hagahuno No. 2 was specifically empanelled by the Chief Justice at the request of the parties to settle the conflicting approaches taken by both the National Court and the Supreme Court which had up to that point emerged over the years, strict as opposed to liberal, in relation to election petitions, including the differing approaches the Courts have taken to objections to competency at both National and Supreme Court levels. Hagahuno No.1 and Hagahuno No.2 expressly deal with detailed consideration of objections to competency in review proceedings, as distinct from appeal proceedings, where the applicant has pleaded one or more grounds of review when leave for those grounds has not granted by the leave Judge. To our minds, Hagahuno No.1 and Hagahuno No.2 have convincingly resolved the conflict in prior decisions in favour of the liberal approach.
41. I further note the authorities in Aihi v Isoaimo (2013) SC1276 at [23], Independent State of Papua New Guinea v Uddin [2022] SC2312 at [28], Kelola v Augerea [2019] SC1829 at [36] et seq where the same principles were reiterated.
42. The tenor of the submissions of Counsel for the appellant was that the outcome of a decision of this Court upholding the respondent’s objection to competency, and dismissing the appeal, would severely prejudice the appellant. That may well be the case. However I do not form a view in respect of this issue because it is irrelevant to the competency of the appellant’s appeal.
43. In any event, any concern the Court could possibly have in relation to possible prejudice to the appellant in this case is ameliorated by the fact that the appellant was represented by lawyers, who presumably were aware of the need to comply with the mandatory provisions of Order 7 Rule 9 (b) and (e) and the requirements of the prescribed Form 8 under the Rules.
44. As I have already observed, in the present case, no reason has been identified or substantiated to support a view that this Court should decline to follow earlier decisions of the Supreme Court, holding that the provisions of Order 7 Rule 9 (b) and (e) of the Rules are mandatory, and that non-compliance with these rules and the prescribed Form 8 render an appeal incompetent. Accordingly, I am satisfied that this Court is obliged to follow the law as found by earlier Supreme Court benches in this regard.

CONCLUSION

45. The requirements of Order 7 Rule 9 (b) and (e) of the Rules, and the prescribed Form 8, are mandatory. As I have explained, so has been held by many Supreme Court benches.
46. Mr Pato for the appellant submitted that the instances of non-compliance by the appellant in respect of its Notice of Appeal in this case with those requirements were “trivial”.
47. Failure to comply with those mandatory requirements is not trivial. The clear law in Papua New Guinea is that failure to comply renders an appeal incompetent.
48. At the hearing I pointed out to Mr Pato that there was no provision in the Rules for dispensation with, or relaxation of, mandatory requirements by Judges of the Supreme Court, such that it could be open to the Supreme Court to dismiss an objection to competency in the present circumstances.
49. The position under the Rules can be contrasted with, for example, r 22 of the Election Petition Rules 2017 which specifically provides:

22. Relief from Rules
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless the rule is a requirement of the Organic Law.

50. Circumstances where appeals come to the Supreme Court of Justice, being the highest Court in Papua New Guinea, and where cases must be presented at the highest standard to maintain the integrity of the justice system, warrant strict compliance with the rules of the Court.
51. The authorities are clear. The appellant has neither identified nor substantiated any reason for the Supreme Court in this case to diverge from its well-established position concerning the mandatory requirements of Order 7 Rule 9 (b) and (e) of the Rules. The consistent application of the laws of Papua New Guinea by the Supreme Court, not only in this respect but as a general proposition, is critical to the maintenance of trust and confidence of the public in the Supreme Court and in the administration of justice, and is, in turn, essential to the maintenance of the rule of law in Papua New Guinea.
52. In accordance with the laws of Papua New Guinea, as found by the Supreme Court on many occasions, the objection to the competency of the present appeal should be upheld, and the appeal dismissed.
53. Costs should follow the event.
54. I consider that the appropriate orders are as follows:
    • (1) The Notice of Objection to Competency filed by the respondent on 17 February 2025 be upheld.
    • (2) The appeal be dismissed.
    • (3) The appellant pay the costs of the respondent of and incidental to the proceedings, such costs to be taxed if not otherwise agreed.
      
55. WAWUN-KUVI J: I have read the drafts by Collier J and Kostopoulos J. I adopt the background facts set out in Collier J’s decision. I concur with Kostopoulos J in dismissing the objection to competency. The subsequent paragraphs detail my reasons.
56. The objections are threefold:
    1. The Notice of Appeal fails to comply with Order 7, rr 9(b) and (e) of the Supreme Court Rules 2012 by not stating whether the whole or part only and what part of the judgement is appealed from.
    2. The Notice of Appeal fails to comply with Order 7, rr 9(c) and 10 of the Supreme Court Rules 2012 by not stating briefly and specifically the grounds relied upon in support of the appeal.
    3. The Notice of Appeals fails to comply with Order 7 r 9(e) of the Supreme Court Rules 2012 by not stating the name of the primary judge as required in Form 8.
57. The first and third grounds challenge the form of the Notice of Appeal.
58. I adopt the majority decision in Serowa v Dowa [2023] PGSC 38; SC2381, which follows Coca-Cola Amatil (PNG) Ltd. v Joshua Yanda (2012) SC1221. The position being that the objection must go to the appeal's competency, not the Notice of Appeal. The objection must draw the Court’s attention to a question of jurisdiction: see also Wereh v Wamuk [2023] PGSC 78; SC2424, Kimbu v Pakira [2023] PGSC 28; SC2387, Bank of Papua New Guinea v Ruh (2021) SC2124, Kauba v Willie [2021] PGSC 78; SC2162, Yambaki Surveys Ltd v Nambawan Super Ltd (2020) SC1901, Talibe Hegele v Tony Kila (2011) SC1124 and Turia v Nelson [2008] PGSC 32; SC949.
59. Recently, this Court unanimously in Layo v Pala [2024] PGSC 61; SC2597 adopted the statements in Yambaki Surveys Ltd v Nambawan Super Ltd (2020) SC1901 (per Salika CJ, Polume-Kiele J and Shepherd J), emphasising that the objection must go to the competency of the appeal and not just the grounds of the appeal.
60. Layo v Pala, while acknowledging the two different approaches, adopted the conclusions from Yambaki Surveys Ltd v Nambawan Super Ltd, stating:

“24. The decision of the Court in Coca Cola Amatil, with respect, is consistent with a line of prior decisions of 3-member benches of the Supreme Court. It has not subsequently been overtaken by any contrary decision of a 5-member bench of the Supreme Court. Both approaches have their merits. However, we emphasize the importance of the distinction between the two approaches but recognize that objections must always go to the competency of the appeal, not to the grounds of appeal per se. (Underlining added)”

61. Returning to the objections, I note that objection 1 is based on non-conformity with the precise wording specified in rule 9(b) and (e) of the Supreme Court Rules 2012. I resolve this objection by adopting the finding of Cannings J in Serowa v Dowa [2023]. He held:

“18. The first of those grounds is trivial. True it is that the supplementary notice of appeal fails to expressly state whether the whole or part only of the judgment of 4 January 2022 is appealed from. However, the only reasonable inference to draw from the supplementary notice of appeal is that it is an appeal against the whole of the judgement. It can be read no other way. An express statement to that effect was unnecessary. If I am wrong in that view, a breach of Order 7 rule 9(b) is not a matter going to competency of the appeal. It is at most a procedural irregularity, which causes no prejudice. I dismiss this ground of objection.”

62. It follows that the first ground of the objection filed on 17 February 2025 is refused
63. Similarly, I must reject the third ground of the objection. It has no merit and is an exercise of nitpicking, which is discouraged. Both the first paragraph and the second page of the Notice of Appeal state the name of the primary judge. The first paragraph reads:

“1. THE APPELLANT appeals from the Orders and Judgement of His Honour Justice Manuhu dated 16th December 2024, made in the National Court at Waigani in proceedings WS No 368 of 2013-Nicolas Tame Trading as Nicholas Tame Lawyers -v- South Pacific Post Ltd Trading as Post Courier (the “proceeding” hereafter), whereby His Honour dismissed the plaintiffs’ claim.”

64. The third ground of the objection to competency filed on 17 February 2025 is refused.
65. Finally, in relation to the second ground, I adopt the reasonings and conclusions by Kostopoulos J set out in the table format. I subscribe to the position in the majority decision in Coca Cola Amatil (PNG) Ltd v Joshua Yanda (2012) SC1221 and find that the appeal survives, as one or more of the grounds of appeal are competent.
66. The second ground of the objection to competency filed on 17 February 2025 is refused.

PROPOSED ORDERS

67. The Orders of the Court are as follows:
    • (1) The objection to competency, filed by notice of objection to competency on 17 February 2025, is refused.
    • (2) The respondent shall pay the appellant’s costs of the objection to competency on a party-party basis, which shall if not agreed be taxed.
    • (3) The proceedings are adjourned to the Registry and shall be referred to the duty judge for directions as soon as is practicable.
      
68. KOSTOPOULS J: The Respondent moves the Court by a notice of objection to competency filed on 17 February 2025 to the substantive appeal in these proceedings.
69. The notice of objection challenges the competency of the notice of appeal filed by the Appellant on 19 January 2025.
70. The appeal is from a decision of the National Court of Manuhu.J (the trial judge) in proceedings WS No. 368 of 2013, delivered on 16 December 2024, being Tame (trading as Nicholas Tame Lawyers) v South Pacific Post Ltd (trading as Post Courier).
71. I adopt the matters set out in Collier J draft judgment excepting for the reasons and conclusions of the majority that has reached a different conclusion.
72. I find that in reaching the conclusions in the matter the reasons I dismissed all but one of the grounds in the Notice of Objection to Competency is set out in my judgement. I find the appeal should proceed to hearing.
73. The Court will set out the reason why objections as to competence must fail.

ORDERS SOUGHT BY THE APPELLANT

74. The Appellant seeks the following orders:
    • (1) The appeal be allowed.
    • (2) The Orders of His Honour Justice Manuhu made 16th December 2024 be quashed.
    • (3) The proceedings WS No. 368 of 2013 be reinstated.
    • (4) Judgment on liability be entered against the Respondent.
    • (5) The matter be remitted to the National Court to be tried before another Judge for assessment of damages.
    • (6) The Respondent to pay the Appellant's costs of the appeal.
    • (7) Such other or further orders as this Court deems fit.

NOTICE OF OBJECTION TO COMPETENCY

75. The respondent argues that each ground of appeal fails to comply with the requirement of the Rules.
76. Further the Respondent says that a general objection is raised to all the grounds of the Appeal.
77. The Supreme Court explained in Haiveta v. Wingti (No.2) 1994 PNGLR 189 that the two (2) principal reasons for the grounds of appeal to be stated briefly but specifically are:

(1) the Respondent must be informed of the basis of the Appeal so the responding party can prepare its arguments.

(2) the court must be informed of the issues to be determined.

78. I find that the grounds sent out in the Notice of Appeal have clearly informed the Respondent of the basis of the Appeal so that the respondent can prepare its arguments.
79. I also find that appellant has clearly informed the court of the issues to be determined.
80. I now set out my reasons.

RULING ON EACH OBJECTION

81. I adopt the table set out by Injia DCJ (as he then was), Cannings J and Los J (who retired before the delivery of the judgment), at page 6 of the judgment in Ipili Porgera Investments Limited v. Bank South Pacific Limited and Resources & Anor [2007] PGSC 55, SC1322.
82. The table is produced for convenience and ease of reference.
83. The table is to ensure the speedy publication of the judgment of the court in this matter in a timely and efficient manner.
84. The Court sets out in the following table to include each grounds of appeal, the objections to it submitted by the respondent and the ruling on each objection by the Court:

85. With the exception of ground 3.2 of the respondent’s complaints which was upheld, I am of the view that the Notice of Appeal is competent.
86. I find it difficult to understand the respondent’s submission that, if the name of the judge does not appear strictly in paragraph 5 of the Notice of Appeal in accordance with the rigid format prescribed the then it totally disappears from the record despite the trial judge’s name appearing clearly in the Notice of Appeal.
87. The respondent’s submission on this point I find far fetched and fanciful.
88. The mandatory nature of the form urged by the respondent to make good the submission is set out in the vast list of the authorities provided to the court by both parties.
89. The joint list of authorities are 18 authorities in total that, when read, provide a further substratum of authorities of at least 30 previous cases referenced as relevant cases to consider by the court to understand the development of the mandatory nature of the prescribed form principles.
90. On a simple point of construction of what is required in the prescribed form of the Notice of Appeal, I find the reference to the authorities as excessive and an overkill on the point.

...

91. The respondent’s principal objections to the form of the Notice of Appeal are set out in Grounds 1 and 3 of the respondent objections which states that compliance with Form 8 of the Notice of Appeal is mandatory.
92. The exceptions to the mandatory nature of the Appellant’s compliance with Form 8 Notice of Appeal was recently discussed in the decision of the Supreme Court in Jay LW Contractors Limited v. Covec (PNG) Limited [2023] PGSC 147 (Covec), where the court found that form of the notice of appeal was substantially compliant with form 8 of the Rules and the alleged defect in form was trivial.
93. The first complaint is that Respondent argues in Ground 3 as a wholesale challenge to the form of the Notice of Appeal that:

“the appeal fails to comply with Order 7 Rule 9(e ) and Form 8 of the Supreme Court Rules 2012 ( as amended) in that the Notice of Appeal filed on 19 January 2025 is not in accordance with Form 8 of the Supreme Court Rules 2012 ( as amended) as it does not state the name of the primary judge in the manner and form that is required by and prescribed in Form 8 of the Supreme Court Rules 2012(as amended).”

94. I find that Ground 3 of the Objections and the submissions supporting the objections in arguendo underwhelming.
95. I find that the failure by the Appellant to enter the name of the trial judge at paragraph 5 of the Notice of Appeal is conceded by the Appellant’s counsel as a human clerical error or overlooked in the sequencing of the paragraphing in the Notice of Appeal during the preparation of the Notice of Appeal by the lawyers for the Plaintiff.
96. In paragraph 1 of the Notice of Appeal it clearly states the trial judge’s name and the date of the decision on 16 December 2024 as follows:

“THE APPELLANT appeals from the Orders and Judgment of His Honour Justice Manuhu dated 16 December 2024, made in the National Court at Waigani in proceedings WS No 368 of 2013 – Nicholas Tame trading as Nicholas Tame Lawyers v. Couth Pacific Post Ltd trading as post Courier (the proceedings hereinafter) whereby His Honour (referring to Justice Manuhu) dismissed the Plaintiff’s claim.”

97. I find the absence of the trial judge’s name in paragraph 5 is cured by the clear and distinct reference to the trial judge’s name, the date of decision and the parties including the registry reference identifier in the court below in the Notice of Appeal which in my view is substantially compliant of the Form 8 requirements.
98. I find that the defect in the form trivial on the principles referred to in the authority of Covec.
99. The second complaint raised by the respondent in Ground 1 represents a wholesale challenge to the entire form of the Notice of Appeal arguing that the appellant is required to state in paragraph 1 whether the whole or part only of the judgment was appealed, and what part of the judgment of the National Court was appealed.
100. It did not, and as such failed to satisfy the requirements of Order 7 Rule 9(b) and (e), and the prescribed Form 8, of the Rules.

It seems to me that the use of the words “the appellant appeals from the orders and judgment”.. rather than the conventional and operative words the “...whole or part of the judgment of Manuhu.J...” again falls into the category of trivial objections referred to in Covec on the issue of Form 8 compliance which I find is captious and an overscrupulous objection taken by the Defendant.

101. In my view, the incorrect terminology used by the Appellant in Form 8 is not fatal as the substantial reasoning process of the trial judge is set out in a six (6) page judgment below.
102. It is necessary to explain the contents of the primary judgment in a granular form below:
103. The title page appears at page 1.
     • (a) The entire defamatory publication published by the Post Courier appears at pages 2-3.
     • (b) The reference to Section 7 of the Defamation Act and the judges findings of facts and history of the matter commences at the last paragraph of page 3 and concludes about halfway through page 4.
     • (c) Thereafter the trial judge’s reasoning and application of the special defences of the Defamation Act in the matter commences halfway through page 5 with his conclusions, verdict and orders at the end of page 6.
104. It is not difficult to interpolate that the Appellant meant to state in the Notice of Appeal the whole judgement is challenged in circumstances where there is only 2 pages of a 6 page judgment to consider as representing the whole of the judgment relevant to the appeal.
105. I agree with Wawun-Kuvi J that the objection is nitpicking, and without pause in my view.
106. Mr Pato for the appellant relevantly submitted that:

“Any omission to refer to the appeal being from the whole or part of the primary judgment, or omission to specify which part, was trivial, and in any event it was clear that the appeal was from the whole of the primary judgment by the use of these words “from the orders and judgment of the trial judge Justice Manuhu.”

107. The obvious concession made by counsel for the appellant in submission to accept the trivial error and the use of the wrong words is useful. It was meant to convey that the ‘whole of the judgment was appealed against’, which makes sense in the circumstances.
108. Upon examination of the trial judge’s ruling in 2-3 pages at most in the Court below, I am persuaded by the submissions and find that the whole of the judgment was meant by the words used ““the appellant appeals from the orders and judgment in the Notice of Appeal”.
109. I have considered the full bench decisions of Idumava Investment Ltd v National Fisheries Authority (2013) SC1273, Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408 and Sauwan Rai v Cornelius Aku Imbuni (2021) SC2080 as examples of appeals that were dismissed for failure to comply with mandatory Supreme Court Rules.
110. The respondent relied on Supreme Court authorities that espouse the view that the failure to comply with the Rules is fatal to the competency of the notice of appeal resulting in the entire appeal being dismissed.
111. In National Development Bank v Noka Builders Limited [2024] SC2703 the relevant notice of appeal failed to state whether it was against the whole or part of the primary judgment in that case, and what part of the judgment was appealed from. A Supreme Court constituted by Mogish, Murray and Geita JJ held:

“In this case, Mr. Joseph, in his submissions stated, the appeal is really against part of the National Court’s decision that allowed part of the claim to go through. Mr. Levy contended, despite what was submitted, the notice of appeal does not reflect that which is required in Order 7 Rule 9 (b) of the Supreme Court Rules. In other words, Mr. Levy contends that, Order 7 Rule 9 (b) of the Supreme Court Rules was not complied with, and so the appeal is incompetent and must be dismissed.”

112. In my opinion the Notice of Appeal is competent, the failure to comply with Form 8 is trivial and I so hold for the reasons below.

The divergent Supreme Court authorities – mandatory or a more liberal approach

113. I refer to Idumava Investment Ltd v National Fisheries Authority (2013) SC1273, Rural Technology Infrastructure Ltd v Paradise Foods Ltd (2015) SC1408 and Sauwan Rai v Cornelius Aku Imbuni (2021) SC2080 as examples of appeals that were dismissed for failure to comply with mandatory Supreme Court Rules.
114. The question arises am I bound by previous decisions of the Supreme Court to apply the mandatory compliance principles in correctional application of stare decisis?
115. I find that the respondent has not suffered prejudice by the irregular completion of the Notice of Appeal form caused by what I regard as ‘cleric errors’.The principles decided in the full bench of the Supreme Court decision of Covec in these circumstances on what is trivial supports my view.
116. The recent full bench of the Supreme Court in Yambaki Surveys Limited v Nambawan Super Limited [2020] PGSC 1 SC 1901 (Salika CJ Polume-Kiele J and Shepherd J) discussed the courts current and progressive trend for a more liberal approach against the strict compliance approach of the previous full benches of the Supreme Court.
117. The court unanimously stated at paragraphs 18 – 25 of the judgement with specific reference to the illustrative discussions of the blistering divergent approaches of the Supreme Court governing objections to competency proceedings that:-

“The first approach requires strict compliance with Order 7 Rules 9 and 10 of the Supreme Court Rules and Section 10 of the Supreme Court Act. However a more liberal approach to objections to competency was recognised in the decision of Coca Cola Amatil v. Kennedy (2012) SC1221, which provides concessions to the effect that if a notice of appeal or application for review contains at least one ground by which the Court’s jurisdiction is validly invoked, ALL ( my emphasis added) of the grounds survive the objection to competency although those grounds can still be open to challenge at the substantive hearing of the appeal or review application”

118. The Notice of Appeal is substantially competent in my findings to address the issue that form over substance cannot hinder the rights of the appellant to prosecute his appeal following the principles set in in Yambaki and Covec by the full court which included the Chief Justice Salika in Yambaki.
119. The interest of justice dictate that the Appeal should proceed.
120. I have found that the Notice of Appeal is competent and raises arguable appeal points relevant to the Defamation Act and the special defences found in the judgment below.
121. In the court below the trial judge found that the Appellant was defamed but was defeated to perfect his claim for damages arising from the defamatory nature of the published article by the special defences pursuant to ss.7-11 of the Defamation Act.
122. In arguendo I asked Mr Shepherd of counsel whether ss 7-11 of the Defamation Act had been determined on appeal or in any other National Court case other than the present case before the Court.
123. The answer was a definitive “No” .
124. This matter alone requires careful examination and consideration in rejecting the Notice of Appeal on the grounds I have found represent trivial ‘clerical errors’.
125. The overriding principles of the law of stare decisis is to allow the matter to be determined by a full bench of the Supreme Court of Papua New Guinea with a suggestion that it is my view a bench of 5 justices of the Supreme Court be constituted to hear the matter so the law of defamation is reviewed and determined as a matter of public interest.
126. The current appeal will determine the laws and rights of litigants under the Defamation Act as a national law on libel and slander.
127. In my experience it is not uncommon in Papua New Guinea for the newspapers such as the Respondent in these proceedings, in social media and the televised media generally to publish and pursue stories involving high-profile individuals or their family’s like politicians, leaders of industries, judicial officers and citizens in high powered roles, providing narratives and editors that result in sensational headlines for the common reader.
128. One the story dissolves with little, if no merit, after the outcome of the criminal justice system finds that the individual is innocent of the allegations the individual should have a right to sue to restore his/her tarnished reputation.
129. Reporters, in the pursuit of newsworthy stories in the press, social media, or media generally may find that targets of unfair news reporting may seek redress in the courts as the applicant has sought unsuccessfully in the proceeding below.
130. The litigants in defamation actions before the court having proven on the balance of probabilities that a superior court has found clearly that he/she was defamed, then seek damages only to be defeated by the special defences found to be available under the Defamation Act extinguishing their rights to damages under statutory defences shielding the slanderer or an aegis to compensate the litigant.
131. Relevantly in re Chan v Arendia [2007] SC 858 Kapi CJ lead the following discussions:

“... the Supreme Court Act prescribes the powers that may be exercised by a single judge of the Supreme Court s.5 of the Supreme Court Act...” and supported in that, the Supreme Court is by virtue of the Constitution, Schedule 2.9(1) not bound by its own decision: Mary Torobert v Henry Torobert [2011] SC1130.

The limits of stare decisis in common law: When justice demands departure in the interests of justice

Background

132. The doctrine of stare decisis (“to stand by things decided”) has been a cornerstone of the English common law tradition since its systematisation by the Royal Courts of England in the 12th century.
133. The maximum of stare decisis has been applied since the 12^th century in common law democracies since that time including Papua New Guinea, Australia and the United Kingdom in their respective systems of modern justice.
134. The Court in re Application by Sakaire Ambo [2012] SC 1195 described the broad review jurisdiction of the Supreme Court.
135. Its intended function is stability and coherence in the legal order ensuring that similar cases are treated alike and fostering predictability in judicial outcomes.
136. In my view the strict application of stare decisis can calcify into injustice when precedent is applied with unyielding rigidity.

Stare decisis cannot be absolute.

137. To amplify my reasons, in Ramu v Nico Management(MCC) Ltd v Eddic Tarsi SC1075, the overarching powers of the Supreme Court is not whether the Court is a court of law, it is also a Court of equity requiring the Court to do justice given the circumstance of the case.
138. When precedent would result in injustice, miscarriage of justice, or a breach of procedural fairness or fundamental rights guaranteed by the Constitution, the Supreme Court must be both empowered and obligated to depart from it.
139. The position resonates with the persuasive jurisprudence of The Hon. Michael Kirby, former President of the NSW Court of Appeal and High Court Justice of Australia, who advocated the idea that the judicial role includes a ‘moral responsibility to refine and, where appropriate, it takes correct’ trajectory of the law.
140. The reasoning dictates that:
     • (a) Justice is the ultimate end of legal interpretation and must take precedence over mechanical obedience to precedents or forms;
     • (b) Procedural fairness and the right to be heard, as foundational principles of natural justice in Section 59 of the Constitution and international obligations ratified by the State in Papua New Guinea under the Internation Covenant on Civil and Political Rights (ICCPR), cannot be subordinated to prior decisions that offend them or hinder those guaranteed rights by exploring mandatory provisions of the Rules over substance in court rules or forms; and
     • (c) In Papua New Guinea, the Constitution’s autochthonous origin, rooted in indigenous sovereignty, customary law, fairness and human rights, demands a contextual, values-based approach that should necessitate judicial departure from English precedent, Papua New Guinea precedents in common law based on previous colonial laws or the use of forms to commences court proceedings or appeals to obstruct the progress of the development of the common law.
141. As Aristotle taught, “Even the best laws, if rigidly applied, become unjust. Equity must temper the letter of the law.”
142. This ancient insight reverberates in modern common law courts, where adherence to precedent must bend, not break, in service to the cause of justice in the interest of its citizenry.

Objectives of Stare Decisis

143. As previous mentioned in this judgment, stare decisis arose in English legal history as a mechanism of judicial economy and legitimacy.
144. The Royal Courts in the 12th century responded to the need for a consistent, predictable system of dispute resolution under royal authority so that progressively precedents came to bind future courts, mooring common law development and constraining judicial arbitrariness or the fluidity of government influencing the law.
145. The courts in common law jurisdictions are century-old institutions that resist change.
146. Deference to change of the accepted norms and social homogeneity often faces severe stress in modern pluralistic democracies.
147. Where precedent is no longer a guide but a chain, it threatens to impair the dynamism that justice in a changing society demands attention and review.
148. The law cannot limp behind a rapidly changing society demanding agile and relevant laws.
149. English case law, including London Street Tramways v LCC [1898], exemplifies the early orthodoxy that courts of final appeal should not reverse themselves lest uncertainty follows.
150. But the House of Lords’ 1966 Practice Statement as the Commonwealth final court of review marked a seismic shift in recognising that the stiffness of precedent must yield “where it appears right to do so.”
151. In the past 60 years since the House of Lords drafted the Practice Statement, which conjoins with the declaration of independence of the new-era modern PNG State (due to be celebrated on 16 September 2025 of this year), the principle has since echoed across jurisdictions in the Commonwealth, especially where fundamental rights or constitutional values are at stake.
152. In Papua New Guinea, the Constitution is not merely an inherited instrument but a locally crafted, entrenched, and living document, examining the idea that precedent should command obedience at the cost of autochthonous justice not only doctrinally unsound, it is constitutionally impermissible.

Justice Kirby’s Jurisprudence—the Voice of an agile human rights lawyer

153. Justice Michael Kirby has consistently championed the view that stare decisis cannot override the judicial obligation to serve justice and fairness.
154. Kirby’s views are taken as persuasive not determinative or binding views of this Court.
155. Rather these views are incisive and didactic insight into the views of a seasoned international jurist to assist in meta-ethical juristic decision-making on mandatory requirements in processes involved in the administration of justice.
156. Rhetorically, does a Court slavishly require all forms or pleadings to be perfect, or does a judge examine the merit of the action or appeal to adopt a flexible approach?
157. In my view substance over form is the equity that is necessary in this matter.
158. In his dissenting and concurring opinions (which were often later vindicated) he warned against an ossified legal system where precedent becomes an inescapable “iron cage” rather than a guiding light.
159. In Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511, Kirby observed that the High Court’s role was not to “defer to doctrinal tradition” where such tradition offends constitutional structure or fairness.
160. The moral accountability of judges is to ensure the law remains “human, principled, and just.”
161. Kirby rejected the notion of judicial passivity as the courts must constantly recalibrate the law in light of new realities, fundamental rights, and the evolving conscience of the community.
162. The views are not activism, but as fidelity to constitutional purpose for a final review court of people’s rights.
163. In my view this aligns with equity’s ancient purpose: courts tempering the strictness of the law when its application would result in injustice.

Injustice in Practice—When Precedent Betrays Justice

164. Rigid application of precedent has led to multiple acknowledged injustices.
165. In R v Jogee [2016] UKSC 8, the UK Supreme Court overturned three decades of erroneous authority on joint enterprise liability, candidly admitting that the prior line of authority had “taken a wrong turn.”
166. That moment illustrated stare decisis’ greatest danger fused in the entrenchment of flawed doctrine that denies fairness and distorts culpability.
167. In Australia, Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 stands as a monumental rejection of the colonial doctrine of terra nullius, upending centuries of precedent in favour of Indigenous land rights.
168. The High Court recognized that “the common law should be adapted to reflect contemporary values and moral standards,” a stance entirely consistent with Kirby’s judicial philosophy.
169. In Papua New Guinea, the danger of slavish fidelity to precedent is heightened by the layered complexity of law: the intersection of common law, customary law, and constitutional supremacy which dictates fairness.
170. Where precedent conflicts with autochthonous justice or customary values which are reflected in customs of fairness, the court’s first duty is to the Constitution and not to English doctrine or foreign laws within the Commonwealth or elsewhere.
171. Instructively, if legal education and judicial reasoning remain chained to outdated models, the courts risk perpetuating injustice under the veneer of certainty.

Instructive judicial reasoning of a fair and just society

172. In my view injustice in practice dictated by mandatory provisions impede discretion and the dictates of justice.
173. In South Africa, during apartheid, if a white or coloured man committed murder, the Appellant courts applied mercy and commuted the death sentence to life imprisonment.
174. If a black man was found guilty of murder, he was executed.
175. George Bizos SC, Counsel who acted for Nelson Mandela during the Rivonoa Trial (1963-1964) told this story to me which I intended to share in the right circumstances.
176. This matter warrants its discussion and represents the right circumstances.

“a panel of 3 judges sat to hear an appeal to commute the death sentence of a black man convicted of murder.
When a senior counsel appeared for the Appellant, one of the judges said,
‘Counsel you have failed to staple the appeal papers on the correct side and the paper is overlength – I reject the competency of your Notice of Appeal as he was about to walk off the bench headed for the chambers.
The Senior Counsel as he turned and walked out of the Court, turned to the judge and replied “then...Hang him’.
The remaining bench of 2 judges gave an immediate ex tempore judgment and ordered that the Appeal be upheld and commuted the death sentence to life imprisonment.

The PNG Constitutional Context – Legal precedent obeys the Constitution and does not wither its purpose for a just and fair rule of law

177. PNG’s autochthonous constitutional identity declares that the Constitution is not a borrowed text, but a deliberate act of sovereign will espoused almost 50 years ago.
178. The Constitution’s supremacy clause means no precedent, whether colonial or at common law can override entrenched and guaranteed rights to its citizens.
179. The Underlying Law Act 2000 reinforces local values and customary law over imported rules where appropriate, relevantly to the reasoning of the majority:-

Section 5 DUTY OF COURTS.
The courts, especially the Supreme Court and the National Court, shall ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country.

PART III. – FORMULATION OF UNDERLYING LAW.
Section 6 ORDER OF APPLICATION OF LAW.
Subject to this Act, in dealing with the subject matter of a proceeding, the court shall apply the laws in the following order:
(a) written law; and
(b) the underlying law; and
(c) the customary law; and
(d) the common law.”

180. In the descending order of the laws of PNG rigid deference to the century-established rules of English precedent contradicts PNG’s modern legal identity as independent state and undermines the local legal evolution of the written law with the grandfather and leader of the law being the Constitution.
181. In my view rigid stare decisis is often blind to cultural nuance and community-centred justice.
182. Justice Kirby’s voice is again heard in the distance and relevant as a reflection in The Judges (2004), as a senior jurist he calls on courts to be “alive to local values, not imprisoned by foreign doctrines.”
183. Notably in PNG this statement must apply to a justice-sensitive approach that respects local philosophy and natural justice which includes the right to be heard.

Comparative Jurisdictions and Global Best Practice

184. In South Africa, Constitutional Court's power to depart from precedent when it infringes the Bill of Rights.
185. In Canada in R v Bedford [2013] overturning Prostitution Reference—emphasizing that stare decisis is not a straitjacket.
186. In India, the Courts routinely depart from precedent when it violates basic structure doctrine or human dignity.
187. Globally, constitutional democracies are moving away from mechanical adherence to processes.
188. PNG is no exception as can be recently seen in the liberal approach taken by the Chief Justice and the senior Supreme Court benches of 3 in the Covac and Coca Cola Amatil cases in relation to substance over form prevailing where mandatory compliance is oppressive and unjust.

Natural Justice, Procedural Fairness, and the Right to Be Heard – Section 59 of the Constitution

189. The key elements that can be interpolated from Section 59 of the Constitution are relevant to my decision that justice must be done and see to be done in these proceedings:
190. The right to be heard is not subordinate to prior decisions that ignored or suppressed it.
191. Miscarriages of justice often stem from courts refusing to revisit flawed reasoning or applying mandatory provisions involving form completion unjustly.
192. Justice Lindsay of the Federal Court of Australia recently said in 2017 that “precedent must remain the servant of justice, never its master.”
193. A legal system that prizes certainty over conscience is one step removed from tyranny.

Conclusion—Justice as the bastion of fairness

194. It is my view that stare decisis must yield where it conflicts with justice, fairness, or fundamental rights, especially in jurisdictions with distinct constitutional identities.
195. The Supreme court is empowered, not burdened when it sets aside precedent in the interests of justice.
196. The Supreme Court must not only apply past precedent but reflect to provide the laws necessary for its future citizens.
197. I find to deny the Notice of Appeal to be heard on form not substance on trivial aberrations of clerical errors in the completion of Form 8 would offend the interest of justice and smother the Supreme Court’s discretion to dismiss the Notice of Objections.
198. The appeal must now take its natural course to be heard and determined in due course concerning the purposive operation of the Defences pursuant to the Defamation Act in these circumstances.

Disposition of the Application

199. I have completed my reasoning for refusing the Notice of Objection to competency of the Notice of Appeal ending with my discussion on the principles of stare decisis.
200. Stare decisis resonates in strengthening my views in the present matter that the correctness of documents must never override the merit of the case to fortify the dictates of justice and the guaranteed right for every citizen to be heard like the Appellant in this application.

ORDERS

201. I agree with the proposed orders of Wuwun-Kuvi J in this judgment.
202. Accordingly, the Court orders that:
     • (1) The objection to competency, filed by notice of objection to competency on 17 February 2025, is refused.
     • (2) The respondent shall pay the appellant’s costs of the objection to competency on a party-party basis, which shall, if not agreed, be taxed.
     • (3) The proceedings are adjourned to the Registry and shall be referred to the duty judge for directions as soon as is practicable to list the Appeal for hearing.
       

THE COURT ORDERS THAT:

1. The objection to competency, filed by notice of objection to competency on 17 February 2025, is refused.
2. The respondent shall pay the appellant’s costs of the objection to competency on a party-party basis, which shall, if not agreed, be taxed.
3. The proceedings are adjourned to the Registry and shall be referred to the duty judge for directions as soon as is practicable.

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Lawyers for the appellant: Pato Lawyers
Lawyers for the respondent: Ashurst