SC2801

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 18 OF 2025 (IECMS)

BETWEEN:
PAUL KUMPIO
Appellant

AND:
DR. SERGIE KOPEN BANG Ph.D
First Respondent

AND:
APEO F.SIONE, LM, M.PP in his capacity as Chairman – Public Services Commission
Second Respondent

AND:
PUBLIC SERVICE COMMISSION
Third Respondent

AND:
HON. JOE SUNGI, in his capacity as Minister for Public Service
Fourth Respondent

AND:
NATIONAL EXECUTIVE COUNCIL
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

WAIGANI: YAGI J, FRANK J, TUSAIS J
29, 31 OCTOBER 2025

APPEAL - Practice & Procedure - Objection to competency of an appeal - Appeal pursuant to National Court Rules Order 16 rule 11 and Supreme Court Rules Order 10 rule 3 - Mandatory requirements - Failure to comply with the requirements - Supreme Court Rules; Order 11 r 28 (a), Order 7 r 15 & Order 10 rule 3 (b) (i).

Cases cited
Feo v Samson & 3 Ors (2024) SC2542
Foe Association Inc v Manau (2024) SC2542
Landu v Hitron Ltd (2024) SC2540
Manda v Yatala (2005) SC795
Maser v Salin (2021) SC2093
National Capital Ltd v Bakani (2014) SC1392
Nipo Investment Limited v Nambawan Super Limited (2017) SC1642
Palaso v Elliott (2020) SC2030
Tasion Group Ltd v Steamships Ltd (2025) SC2710
The State v Kubor Earthmoving (PNG) Limited [1985] PNGLR 448

Counsel
Mr. J. Napu for the appellant
Mr. P. Othas for the first respondent
Mr. K. Kipongi for the fourth, fifth & sixth respondents

JUDGMENT

1	BY THE COURT: For determination is the objection to the competency of these appeal proceedings raised by the Notice of Objection filed on behalf of the fourth, fifth and sixth respondents on 3 June 2025 against the following background:

(a)	On 6 January 2025, the appellant filed a notice of motion for judicial review pursuant to Order 16 rule 5 (1) of the National Court Rules (“Motion for Judicial Review”) in proceeding instituted by originating summons under Order 16 rule 1 (1) referenced OS (JR) 152 of 2023 between the appellant as plaintiff and the respondents as defendants in the order in which they have been named in this appeal but as respondents;
(b)	On 4 April 2025, the primary judge dismissed the Motion for Judicial Review;
(c)	On 8 May 2025, the appellant filed the notice of motion in Form 15 of the Supreme Court Rules 2012 (as amended) instituting the appeal herein (“Notice of Appeal”);
(d)	On 22 May 2025, the Notice of Appeal was served on the fourth, fifth and sixth respondents; and
(e)	On 8 July 2025, the Notice of Objection was served on the appellant.

2	By the sole objection raised in the Notice of Objection the respondents contend that the appeal is incompetent as in breach of Order 10 rule 3 (b) (i), the Notice of Appeal did not have annexed to it all the court documents filed in the judicial review proceedings. In response to the objection, Mr Napu of counsel for the appellant submits that the Notice of Objection be dismissed as incompetent because contrary to Order 7 rule 15 (b), it was served outside the 14 days prescribed by Order 7 rule 15, citing The State v Kubor Earthmoving (PNG) Limited [1985] PNGLR 448 to reinforce this submission. To the proposition put to him by the Court that an issue of incompetence of an appeal remains open to be raised by the Court at any time up to the hearing of the appeal, Mr Napu submits, first,  that as Order 10 rule 4 (a) and (b) imports the rules specified therein of Order 7, the documents not annexed can be incorporated at the settlement of the appeal book; and, second, as both the appellant and the fourth, fifth and sixth respondents have breached the rules, this Court should, in the interest of justice, allow the appeal to progress to hearing as it raises meritorious grounds of appeal.

3	As regards the failure of the fourth, fifth and sixth respondents to fully comply with Order 7 rule 15 (b), as the dates asserted by the appellant (para 1 (d) and (e) above) have not been challenged by the respondents, we accept the appellant’s submission that in breach of that provision, the Notice of Objection was served just over a month outside of the 14 days prescribed time for service which expired on 5 June 2025.

4	In Manda v Yatala (2005) SC795, this Court held that a notice of objection to competency served outside of the prescribed 14 days is incompetent and dismissed the notice of objection to competency in that case. Similarly, the notice of objection to competency in Maser v Salin (2021) SC2093, which was served outside the prescribed 14 days was dismissed as incompetent.

5	As the Notice of Objection has been served outside of the prescribed 14 days, it is, on those authorities of this Court, incompetent.
6	As the issue of competence remains a live issue up to the determination of the substantive appeal, and in this instance goes to jurisdiction of the entire appeal, we address the submissions on the ground of objection.

7	The objection is founded on Order 10 rule 3 (b) (i) which rule provides (with italic added):

The notice of motion shall—
(a)	show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 8; and
(b)	have annexed—
(i)	copies of all documents which were before the Judge of the National Court appealed from; and
(ii)	a copy of the order made, certified by the Judge's Associate or the Registrar; and
(c)	be in accordance with form 15; and
(d)	be signed by the appellant or his lawyer; and
(e)	be filed in the registry.

8	It is advanced on the basis that the Notice of Appeal does not have annexed to it the following documents:

(a)	originating summons filed on 24 December 2023;
(b)	Statement Pursuant to Order 16 rule 3 (2) of the National Court Rules filed on 24 December 2023;
(c)	Affidavit of Paul Kumpio filed on 24 December 2023;
(d)	Amended originating summons filed on 31 January 2025;
(e)	Affidavit of Dr. Sergie Bang filed on 1 February 2025;
(f)	Supplementary Affidavit of Paul Kumpio filed on 2 February 2025;
(g)	Amended Statement Pursuant to Order 16 rule 3 (2) of the National Court Rules filed on 9 February 2025;
(h)	Affidavit of Taies Sansan filed on 6 February 2025;
(i)	Affidavit of Paul Kumpio filed on 3 March 2025.

9	These omissions, Mr Kipongi (supported by Mr Othas) submits, rendered the Notice of Appeal incompetent as this Court has previously held where, in breach of Order 10 rule 3 (b) (i), were omitted from the documents annexed to the Form 15 notice of motion instituting the appeals:
(a)	a written submission: Nipo Investment Limited v Nambawan Super Limited (2017) SC1642 and Palaso v Elliott (2020) SC2030; Pacific Medical Centre Inc. v Tkachenko (2024) SC2672;
(b)	the minute of the orders under appeal: National Capital Ltd v Bakani (2014) SC1392; Foe Association Inc v Manau (2024) SC2542;
(c)	an affidavit: Landu v Hitron Ltd (2024) SC2540;
(d)	a bundle of documents filed in the proceedings: Feo v Samson & 3 Ors (2024) SC2542; Tasion Group Ltd v Steamships Ltd (2025) SC2710.
10	Mr Napu acknowledges though not expressly the omission of these documents from the Notice of Appeal, firstly, as he did not dispute this list as was put to the Court in the submissions of the fourth, fifth and sixth respondents; secondly, except for the affidavits of Dr. Bang, Ms Sansan and Mr Kumpio filed on 3 March 2025 these documents are also referred to in the Affidavit of Service of Thomas Barry sworn and filed 8 January 2025; and, thirdly, by his submission that the omission of documents from the Notice of Appeal can be rectified through Order 10 rule 4 which we understand from his submissions to mean by serving such documents and incorporating them at the settlement of the index and when the appeal book is compiled.

11	We accept and find that not all documents filed in the judicial review proceedings in which the orders under appeal were made have been annexed to the Notice of Appeal.

12	On the case authorities cited, the appeal herein is incompetent.

13	As regards the appellant’s submission that the omission of the documents not annexed could be rectified, this submission was advanced in Pacific Medical Centre Inc. (supra) and Tasion Group Ltd v Steamships Ltd (supra) but rejected by this Court. In so far as the submission is advanced based on Order 10 rule 4, the rules under Order 7 referred to in this rule have no relevance to the reception of the omitted documents. Otherwise, the appellant has not cited any authority for that submission. The requirement of Order 10 rule 3 goes to jurisdiction and thus the competency of an appeal. The requirements for the settlement of index and compilation of an appeal book proceeds on the premise of a competent appeal. We therefore reject this submission.

14	As regards the appellant’s submission that the grounds of appeal have merit and that the interest of justice requires that those grounds be allowed to proceed, no authority has been cited to support it and persuade us. We reject this submission as unless the jurisdiction of this Court is invoked by a competently instituted appeal, as this has not been done in this instance, this Court does not have jurisdiction to hear such grievance.

15	For these reasons, we find that the appeal as filed is incompetent. As we have found the Notice of Objection incompetent, each party will bear its own costs of these proceedings. 

16	The orders therefore are:

(1)	The Notice of Objection to Competency is dismissed as incompetent;
(2)	The appeal herein is dismissed as being incompetent;
(3)	Each party will bear its own costs of these proceedings. 
______________________________________________________________
Lawyers for the appellant: Napu & Company Lawyers
Lawyers for the first respondent: Paul Othas Lawyers
Lawyer for the fourth, fifth & sixth respondents: George Akia, Solicitor General