SC2827
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 79 OF 2025

INDEPENDENT STATE OF PAPUA NEW GUINEA
Appellant

AND:
GRAND COLUMBIA LIMITED
Respondent

WAIGANI: KARIKO J, NAROKOBI J, KOSTOPOULOS J
30 OCTOBER, 12 DECEMBER 2025

SUPREME COURT PRACTICE AND PROCEDURE - APPEAL - Objection to Competency – late filing by appellant; absence of leave; grounds mischaracterization; ground directed to non-appealed order - Appeal from the National Court – Timing for filing Notice of Appeal – computation of 40 days – whether late when registry is closed on weekend; Section 17 Supreme Court Act; leave to appeal on questions of fact and law – Supreme Court Act s. 14(1)(c) – whether required; adequacy and specificity of grounds – Supreme Court Rules O. 7 RR. 9–10; whether grounds relate to order appealed – application in place under section 17 of SCA where there is inadequate or no precedent for filing of appeal on first day Registry is open for business.

CROSS – VESTING OF NCR TO SCR – Supreme Court Rules cross vesting National Court Rules in relation to proceedings when Registry is closed for filing of appeals on weekend when 40 days expired – application of sections 184 and 185 of the Constitution – application of Order 2 Rule 1 of SCR.

NATIONAL COURT PRACTICE AND PROCEDURE – default judgment for failure to defend; assessment on the papers; discretion to refuse statutory interest where contractual interest awarded 

CLAIMS BY AND AGAINST THE STATE ACT (AS AMENDED) – s 5 and s 5A notices – sufficiency and service, effect on competence of proceedings and default judgment.

FRAUDS AND LIMITATIONS ACT 1988 – s 16 limitation for rent arrears; accrual of causes of action for rent under monthly tenancy and continuing occupation; whether time-bar affects assessment - Commercial Lease – holding-over month-to-month; CPI review; contractual interest 8% p.a. on unpaid rent “until paid”; assessment of arrears and contractual interest following default judgment.

COMMERCIAL LEASE – Holding over clause in commercial lease between the parties where Clause 8 provides or dispute to be referred for Arbitration.

The National Court entered default judgement against the appellant (the State) and subsequently ordered damages, among others, in favour of the respondent (Grand Columbia Limited). The State appealed against the decision to the Supreme Court to which the respondent filed an objection to the competency of the appeal. 

Held

(Per Kariko J with whom Narokobi agreed, the majority):

1.	An appeal not filed within the 40 days, or any extended time as required by s 17 of the Supreme Court Act is incompetent and the Supreme Court has no jurisdiction to entertain it. 
 
2.	Rules of court are a code of practice designed to guide and assist parties and the court resolve disputes fairly and expeditiously; they do not feature in the hierarchy of laws listed in s 9 of the Constitution and cannot override statutory provisions of Acts of the Parliament.
 
3.	When the last day to appeal to the Supreme Court falls on Saturday when the Registry is closed, O2 r 12 of the National Court Rules does not operate to extend time to appeal.

4.	Objection to competency upheld and appeal dismissed.    

(Per Narokobi J):

1.	Even if the rules of court were to be amended to allow for filing of an appeal that fell due on a Saturday, on the next business day, the particular provision of the rules of the court would be ultra vires the enabling legislation and face the potential of being declared invalid.

(Per Kostopoulos J, dissenting):

1.	The appeal was filed in the Registry on Monday in compliance with the 40-day rule pursuant to Section 17 of the Supreme Court Act taking into account that the Registry was closed on the Saturday and the Registry re-opened on Monday.

2.	The Notice of Appeal is substantially competent to address the issue that form over substance cannot hinder the rights of the appellant to prosecute its appeal. 

3.	The interest of justice dictate that the Appeal should proceed.

Cases cited
Avia Aihi v The State [1981] PNGLR 81
Bank of Papua New Guinea v Ruh [2021] SC2124
Coca Cola Amatil (PNG) Ltd v Joshua Yanda [2012] SC1221
Felix Bakani v Rodney Daipo (2001) SC659
Grand Colombia Limited v. Independent State of Papua New Guinea [2025] N11268
Haiveta v. Wingti (No.2) [1994] PNGLR 189
Hegele v Kila [2011] SC1124
Iangalio v National Development Bank Ltd [2016] SC1499
Inakambi Singorom v Klaut [1985] PNGLR 328
In re Chan v Arendi [2007] SC858
Ipili Porgera Investments Limited v. Bank South Pacific Limited and Resources & Anor [2007] SC1322
Jay LW Contractors Limited v. Covec (PNG) Limited [2023] SC2498
Kalgregos Electrical Limited v Mamun Investments Ltd [2024] SC2655
Kauba v Willie [2021] SC2162
Kimbu v Pakira [2023] SC2387
Kuman & Ors v Digicel (PNG) Limited [2017] SC1638
Kunangel v The State [1985] PNGLR 144
Lama v. NDB Investments Ltd [2015] SC1423
Layo v Pala [2024] SC2597
Marat v Hanjung Power Ltd (2014) SC1357
National Capital District Water & Sewerage Ltd (trading as Eda Ranu) v Yambaran Pausa Saka Ben Limited [2023] PGSC 17; SC2365
National Development Bank v Noka Builders Limited [2024] SC2703
National Executive Council v Toropo (2023) SC2451
Neville v National Executive Council of Papua New Guinea [2015] SC1431
Nivani Ltd v Independent State of Papua New Guinea (2020) SC1945
PLAR No 1 of 1980 [1980] PNGLR 326
PNG Forest Authority v Securimax Security Pty Ltd [2003] SC717
Polling v Motor Vehicles Insurance (PNG) Trust & Ors [1986] PNGLR 228
Public Officers Superannuation Fund Board v Imanakuan (2000) SC677
Serowa v Dowa [2023] SC2381
Tiensten v Independent State of Papua New Guinea [2014] SC1468
Torobert v Torobert [2011] SC1130
Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112
Turia v Nelson [2009] SC989 
Waghi Savings and Loans Society Ltd v Bank South Pacific Ltd [1980] SC185
Wood v Watkins (PNG) Pty Ltd [1986] PNGLR 88
Yambaki Surveys Ltd v Nambawan Super Ltd [2020] SC1901

Counsel
Mr. G. Akia for the appellant 
Mr. L. Evore for the respondent 

JUDGMENT

1. KARIKO J:   Before this Court is the respondent’s objection to competency to this appeal from the decision of the National Court at Waigani given on 5 May 2025 in proceedings WS No. 21 of 2024 which has been published as Grand Colombia Limited v Independent State of Papua New Guinea (2025) N11268.

2.   I have had the benefit of reading the draft opinion of my brother Kostopoulos J. With due respect, I differ from His Honour’s reasoning and conclusions relating to the first ground of objection which contends that the appeal was filed outside the time limit prescribed by s 17 of the Supreme Court Act. 

BACKGROUND

3.Proceedings WS No. 21 of 2024 concerned a claim by the respondent (Grand Columbia Limited) against the appellant (the State) for outstanding rental payments pursuant to a commercial lease agreement of a property commonly known as Fincorp Haus in Port Moresby.

4.	 The writ of summons was filed on 6 February 2024.

5.	Upon the failure of the appellant to file a notice of intention to defend and a defence, the respondent moved a motion for default judgement against the appellant. 

6.	The trial judge upheld the application on 24 March 2024 and ordered for damages to be assessed. 

7.	On 8 April 2024, the trial on damages was ordered to be conducted on paper with submissions to be filed.  

8.	The trial judge delivered his decision on 5 May 2024 ordering in favour of the respondent K42,300,860.05 as outstanding rentals, K13,396,653.13 as contractual interest; and costs of the proceedings.

9.	Aggrieved, the appellant commenced these appeal proceedings, filing its notice of appeal on 16 June 2025. 

10.	To this, the respondent filed its objection to competency on 1 July 2025. 

NOTICE OF APPEAL

11.	The appeal is filed pursuant to s 14(1)(c) of the Supreme Court Act and raises several grounds which I deem not necessary to set out, noting that they are reproduced in full by his Honour Kostopoulos J in his judgement. 

12.	Most grounds allege errors of mixed law and fact by the trial judge in exercising his discretion in the assessment of damages.  

OBJECTION TO COMPETENCY

13.	In summary, the grounds of the objection to competency of the appeal allege that:
 
(1)	the appeal was lodged outside the 40-day period stipulated under s 17 of the Supreme Court Act;
(2)	leave ought to have been sought for two of the grounds of appeal as they relate to questions of fact only;
(3)	six of the grounds of appeal do not arise from the appealed decision; and 
(4)	the grounds of appeal do not conform to the requirements of O7 r9(c) and r10 of the Supreme Court Rules.

TIME-LIMIT TO APPEAL

14.	It is common ground that as the appealed decision was delivered on 5 May 2024, the 40-day period within which to appeal as required by s 17 of the Supreme Court Act lapsed on 14 June 2024, a Saturday, and the appellant opted to wait until Monday 16 June 2024 when the Registry next opened to file its appeal.

15.	The respondent contends that the appeal was filed out of time and is therefore incompetent. Reliance is placed on Felix Bakani v Rodney Daipo (2001) SC659 and Tsang v Credit Corporation (PNC) Ltd [1993] PNGLR 112 to submit that it is settled law that an appeal to the Supreme Court which is not filed within the 40 days period or any extended time allowed by the Court pursuant to s 17 of the Supreme Court Act, is incompetent. 

16.	In response, the appellant refers to and relies on O2 r1 of the Supreme Court Rules and O2 r11 of the National Court Rules to submit that as the 40 days’ time limitation fell on a Saturday when the Registry was closed, it was entitled to wait until Monday when the Registry next opened for business to file its appeal. It is argued that in those circumstances, the appeal is to be regarded as having been filed within time.

17.	The State explains the submission in this way. 

18.	Section 17 of the Supreme Court Act states that a notice of appeal shall be given “in the manner prescribed by the Rules”, and the relevant Rules applicable in this instance are O2 r1 of the Supreme Court Rules and O2 r11 of the National Court Rules. 

19.	Order 2 Rule 1 of the Supreme Court Rules allows for certain Rules of the National Court to apply as if they were, with necessary modifications, Rules of the Supreme Court in respect of several matters including the Registry and thereby O2 r11 (Registry hours).

20.	Order 2 Rule11 sets the hours of business when the Registry is open to the public, and these are from 8.00am-12.00pm and 1.00pm-3.30pm daily except for Saturdays, Sundays and Court holidays.

21.	The appellant thus invites the Court to find that its appeal was ready to be filed within the prescribed time limit except that when it went to file, it was the last date for filing and a Saturday when the Registry was closed, and by opting to file the appeal when the Registry next opened for business, it ought to be regarded `as having been filed within time.  

22.	During submissions, the Court pointed parties to O2 r12 (Opening of Registry outside business hours) and questioned whether the Rule had the effect of extending time to appeal from Saturday to Monday in that the Rule seemingly presented the appellant an option of waiting until Monday when the Registry next opened for business.

23.	Order 2 Rule 12 essentially states that a person wanting to do business with the Registry on a day when it is closed may ask the Registry to open to conduct the business upon payment of a K5.00 fee.

24.	The respondent’s answer is that the Rules cannot override statutory provisions regarding the time-limit for lodging an appeal, while the appellant agrees to the proposition that the O2 r12 permitted the appellant the choice to wait until Monday to file its appeal and by this, the Rule effectively operated to extend time to appeal. 

CONSIDERATION

25.	Section 17 of the Supreme Court Act states:

Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.

26.	It is settled law that the phrase “within 40 days after the date of the judgement” contained in s 17 simply means 40 days from when judgement is pronounced or given: Wood v Watkins (PNG) Pty Ltd [1986] PNGLR 88 and Felix Bakani v Rodney Daipo (supra). 

27.	It is also not controversial that an appeal not filed within the 40 days or any extended time as required by s 17 is incompetent, and the Supreme Court has no jurisdiction to entertain it: Avia Aihi v The State [1981] PNGLR 81and Tsang v Credit Corporation (PNG) Ltd (supra).  

28.	The Interpretation Act addresses computation of time in s 11 and relevantly provides at s 11(2):

If the last day of a period prescribed or allowed by a statutory provision for the doing of an act falls on a Sunday or a public holiday, the act may be done on the day next following that is not a Sunday or public holiday. 

29.	This means that when the last day to appeal falls on a Sunday or a public holiday, the appeal can be lodged the next day provided that day is not a Sunday or public holiday. 

30.	As the last day to appeal in the present case fell on a Saturday and it was not a public holiday, s 11(2) of the Interpretation Act is obviously of no assistance to the appellant. 

31.	I am unable to agree to the proposition advanced by the appellant that the phrase “in the manner prescribed by the Rules of Court” contained in s 17 of the Supreme Court Act permitted the State to file its appeal outside the time limit by virtue of the application of O2 r12 of the National Court Rules. 

32.	In my view, the phrase is directed at the requirements relating to the form, lodgment and service of a notice of appeal or notice of application for leave to appeal which must be filed within the prescribed time limit.

33.	The appellant rightly points out that O2 r1 of the Supreme Court Rules allows some Rules of the National Court, with necessary modifications, to apply as Rules of the Supreme Court, and these include O2 r11and O2 r12 of the National Court Rules.

34.	While it is correct that pursuant to O2 r12, the appellant was entitled to but was not obliged to request the Registry to open on Saturday, the choice to wait until Monday to file the appeal clearly was to the appellant’s detriment as the appeal would then be out of time. 

35.	To my mind, a proper interpretation of O2 r12 as it applies to the present case is not that the Rule gave the appellant a choice of whether to ask for the Registry to be opened on Saturday for it to file its appeal or defer  the filing to when  the Registry next opened on Monday but rather, the Rule entitled the appellant to request for the Registry to be opened in circumstance where the business it wanted to conduct viz the filing of its notice of appeal, was  indeed business which in terms of the Rule “could not be transacted when the office is next to be opened in the normal course or which might if so transacted involve the person concerned or any other person in serious risk of prejudice”. 

36.	The appellant could have and should have asked for the Registry to open on Saturday to file its notice of appeal because to wait until Monday deprived the State of its right to appeal pursuant to law.  

37.	The State’s failure to make the request plainly prejudiced against its right of appeal and this was unfortunately a fatal mistake of its own doing. 

38.	I add that by virtue s 6 of the Claims By and Against the State Act, the State is exempted from paying the requisite fee so all that was required of the State was for it to make a proper request for the Registry to be opened.

39.	I also mention O1 r14(4) of the National Court Rules which was referred to during submissions. This Rule states that when the due date for doing a ‘thing’ falls on a day when the Registry is closed, it may be done on the next day the Registry is open. Given my views on the interpretation and application of O2 r12, I do not consider O1 r14(4) adds anything to the appellant’s case. 

40.	Importantly though, it is my firm opinion that O2 r12 cannot override the dictates of s 17 of the Supreme Court Act and s 11 of the Interpretation Act. That is, O2 r12 cannot extend the time-limit nor can it amend the computation of time stipulated by these statutory provisions. 

41.	Rules of court are delegated legislation made by the Judges collectively pursuant to s 184 (Rules of court) of the Constitution while the power to enact legislation remains within the domain of the legislature, the National Parliament; s 100 (Exercise of the legislative power) and s 109 (General power of law-making) of the Constitution.

42.	The hierarchy of laws is listed in s 9 (the laws) of the Constitution which states:

The laws of Papua New Guinea consist of -

(a)	this Constitution; and
(b)	the Organic Laws; and
(c)	the Acts of the Parliament; and
(d)	Emergency Regulations; and
(da) 	the provincial laws; and
(e)	laws made under or adopted by or under this Constitution or any of those laws, including subordinate legislative enactments made under this Constitution or any of those laws; and
(f)	the underlying law,

and none other.

43.	Rules of court are a code of practice (Polling v Motor Vehicles Insurance (PNG) Trust & Ors [1986] PNGLR 228) designed to guide and assist parties and the court resolve disputes fairly and expeditiously (Public Officers Superannuation Fund Board v Imanakuan (2000) SC677), but they do not feature in the hierarchy of laws whereas Acts of the Parliament rank subordinate only to the Constitution and the Organic Laws.

44.	In fact, s 184(1) of the Constitution provides that rules of court shall not be inconsistent with a Constitutional Law or an Act of Parliament, regarding practice and procedure in the higher courts.

45.	This may explain the lack of case authority on the last day of appeal falling on a Saturday because it has been long recognized that rules of court cannot supersede or override statute law. 

46.	I view the following judgements of the Supreme Court helpful in illustrating the principle that rules of court cannot be applied in lieu of the requirements of statute.
 
47.	In Nivani Ltd v Independent State of Papua New Guinea (2020) SC1945, the Court observed that the correct jurisdiction for the State to apply for extension of time to file a defence was s 9 of the Claims By and Against the State Act and not O7 r6 (Late notice) of the National Court Rules. 

48.	In a later case, National Executive Council v Toropo (2023) SC2451, the Court determined that a direction issued by the National Court under O6 r12 (Substituted service) of the National Court Rules for the State to be served in a manner contrary to the requirements of service outlined in s 7 of the Claims By and Against the State Act, was ultra vires and wrong in law. 

49.	For the foregoing reasons, it is my respectful conclusion that the notice of appeal in the present case was filed out of time thereby rendering this appeal incompetent.

50.	In the circumstances, it is not necessary to consider the other grounds of objection to competency.

51.	Costs shall follow the event.

ORDER

52.	The orders I propose the Court issue are:

(1)	The objection to competency filed by the respondent on 1 July 2025 is upheld.
(2)	This appeal is dismissed for being incompetent.
(3)	The appellant shall pay the respondent’s costs of and incidental to these proceedings, to be taxed if not agreed.
(4)	Time for entry of these orders is abridged to the time for settlement by the Registrar which shall take place forthwith.

53.	NAROKOBI J: I have read the drafts opinions of both my colleagues, Justices Kariko and Justice Kostopoulos, my esteemed colleagues. I am left with the difficult task of deciding which opinion I should agree with. This task is made more difficult because both opinions are very well expressed and convincing. Be that as it may, the choice I make will determine the appeal. Whilst I see the merits and the justice of the opinion advanced by Justice Kostopoulos, I am unable to agree with him. In my humble opinion, the clear provision of the legislation concerned, and its interplay with the relevant provision of the rules of court favours Justice Kariko’s opinion.

54.	I offer in brief my reasons, why I agree with Justice Kariko. I adopt his reasons, interpretation of the law, and the case authorities he cites.

55.	This is a case which will have a significant bearing on the way statutory appeal time periods are computed. The central question in simple terms, is what happens when the last day for filing an appeal falls due on a Saturday?

56.	The two principal laws concerned are the Supreme Court Act and the Interpretation Act. Section 17 of the Supreme Court Act, simply states:

Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days. (Emphasis added)

57.	The legal question is to be resolved by statutory interpretation, by asking what this phrase means “…in the manner prescribed by the Rules of Court within 40 days after the date of the judgement in question…”? The interpretation of Section 17 turns on three words, “shall,” “manner,” and “within.”

58.	The Constitution of Papua New Guinea has rejected the literal method of statutory interpretation and instead requires a purposive approach. This is clear from Schedule 1.5 of the Constitution (PLAR No 1 of 1980 [1980] PNGLR 326). However, where the terms of legislation are clear, and the intention of Parliament can be easily discerned, then that is the meaning that must be attributed to these words (per Kidu CJ in Inakambi Singorom v Klaut [1985] PNGLR 328).

59.	The word “manner,” a noun, simply means, “a way of doing, being done, or happening; mode of action, occurrence, etc...” (dictionary.com). The synonym for “manner,” would be “method.” The rules of the court would have the function of spelling out the form of an appeal document. Whatever appearance the form should take is dictated by the rules of the court.

60.	The appeal document prepared in the form provided for by the rules, must be filed within 40 days. This is the simple and ordinary meaning of that word. The word “within,” an adverb means “in or into the interior or inner part; inside.” (dictionary.com). Ordinarily, it means “inside 40 days.” It is be noted that the word, “within” is used no less than three (3) times in Section 17, in my view emphasising the importance Parliament placed in having the act done inside the required period. For example, if an appellant wishes to file outside the 40 days, then an application must be made, “within,” 40 days to get an extension.

61.	The phrase in contention is prefaced by the word “shall.” The discretionary “may,” is not used. This means that whatever is required to be done by Section 17, such as the form of the appeal and the requirement to file it within 40 days, is mandatory.

62.	There is therefore no authorisation by the primary legislation, even from liberal construction, for an appeal to be filed outside of 40 days. 

63.	The only exception is if the last day fell on a Sunday or Public Holiday, then it can be filed on the next day the registry is open for business. This comes from Section 11(2) of the Interpretation Act:

64.	If the last day of a period prescribed or allowed by a statutory provision for the doing of an act falls on a Sunday or a public holiday, the act may be done on the day next following that is not a Sunday or public holiday. 

65.	Section 11(2) makes no provision as to what should happen if the due date for filing an appeal fell on a Saturday. Parliament has spoken, exercising its powers under Section 99 and Section 109 of the Constitution, and it is not for the Courts to traverse this boundary, unless specific provisions of the Constitution, allows the court to do so.

66.	To alleviate this difficulty, the Supreme Court Rules (Order 2, rule 1) together with the National Court Rules (Order 2, rule 12), makes provision for the registry to be opened at times the registry is usually closed to cater for filing of court documents.

67.	Even if the rules of court were to be amended to allow for filing of an appeal that fell due on a Saturday, on the next business day, the particular provision of the rules of the court would be ultra vires the enabling legislation and face the potential of being declared invalid (Marat v Hanjung Power Ltd (2014) SC1357).

68.	In my view, the rules of the court accommodate litigants placed in the dilemma faced by the appellant to arrange for the registry to be opened on days and hours it is usually closed to accommodate filing of documents to meet statutory time limits or as always happens, urgent applications. The failure of the appellant to utilise the provisions of Order 2 rule 12 of the National Court Rules has proven to be fatal. The result is that the appeal must be dismissed with costs, as it was not filed within the period required by Section 17 of the Supreme Court Act.

69.	KOSTOPOULOS J: Before the Court is a notice of objection to competency filed on 1 July 2025 by the respondent to the substantive appeal in these proceedings.

70.	The notice of objection challenges the competency of the appeal referrable to the Notice of Appeal filed by the appellant on 16 June 2025.

71.	The appeal is from a decision of the National Court of Justice in proceedings WS No.21 of 2024 delivered on 5 May 2025 at Waigani being Grand Colombia Limited v. Independent State of Papua New Guinea [2025] N11268 before Makail J. 

72.	For convenience and ease of reference, 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. Likewise, I will refer to the appellant to the appeal as “the appellant” and is the respondent on the application. 

73.	References to documents contained in the Application Book before this Court will be identified as ‘AB’ with the relevant page or paragraph numbering.

BACKGROUND

74.	The respondent is a company and the owner of a commercial property known as Fincorp Haus, Allotment 30, Section 278, Port Moresby.

75.	The appellant is the Independent State of Papua New Guinea “the State” who is responsible for the payment of rent on behalf of the Department of Education for the commercial lease “the Lease” entered into between the respondent and the State executed by the parties on 31 December 2010 for five (5) years, with a further five (5) years optional effective and commencing from 1 January 2011 with rent adjusted annually by a fixed rate of 7% as the agreed annual CPI increase. 
 
76.	At the expiry of the Lease in 2015, the Lease was not renewed in accordance with the option of a further five (5) year term set out in ITEM 7 of the schedule to the Lease.

77.	However, the Department of Education “the DOE” continued its occupancy of Fincorp Haus and the State continued paying rent on a on a month-to-month basis pursuant to clause 1.4 of the Lease under the ‘Holding Over’ provisions... “and otherwise on the terms and conditions contained in this lease” – AB 114. 

78.	Pursuant to ITEM 13 of the schedule to the Lease, the DOE through the Department of Finance (Office Allocation Section) was responsible for all rental payments. 

79.	From 2017 onwards, the DOE and Government Office Allocation Committee (GOAC) did not pay the full rental amount due on all buildings leased by the respondent, including Fincorp Haus occupied by the Department of Education with the shortfall of rental payments accumulating each year. 

80.	Rental payments were irregular, and the outstanding rent continued to increase owing to the respondent in respect of Fincorp Haus from 2019 onwards. 

81.	Finally, the rental payment became increasingly irregular and unpaid creating the shortfall for each year’s rental increased with the passage of time between the periods 2017-2024. 

82.	Rent was due each quarter in each year. For each quarter, the respondent issued regular invoices for rents by the appellant, and for each invoice issued, the appellant would either pay the sum due or a lesser sum less than the sum due on the invoices.

83.	The respondent made numerous requests to the appellant to settle the outstanding rent, but it failed. 

84.	The request turned into demands made by the respondent to the appellant to pay the outstanding rent resulting in the respondent threating to commence legal proceedings against the appellant for the failure by the appellant to settle the outstanding rental amounts due and payable.

85.	In March 2023 the DOE finally vacated Fincorp Haus leaving the outstanding rental arrears owed by the appellant to the respondent in the total amount of K42,300,860.05.

86.	On 16 June 2023 the respondent’s lawyer gave notice of its intention to make a claim against the appellant as the State remained responsible for the outstanding rent notwithstanding the dispute provision under Clause 8 of the Lease – AB 122 and 124-125.

87.	On 16 February 2024, the respondent commenced proceedings to recover the outstanding rentals from the appellant in the National Court of Justice.  

Relevant facts between the parties leading to proceedings being commenced 

88.	The unchallenged facts set out below were relied upon by Makail J in the trial below to prove the respondent’s claim. 

89.	Ledgers, recorded invoices, part-payments and growing shortfalls of rent owing by the appellant to the respondent were produced as evidence in the trial for the periods 2017–2022 appearing in table below: 

Year 	Quarter 	Amount	Amount 
Outstanding 	
2017	1st Qtr.	K269, 905.98	K2,775,763.92	
	2nd Qtr.	K269, 905.98		
	3rd Qtr.	K1,117, 975.98		
	4th Qtr.	K1,117, 975.98		
				
2018	1st Qtr.	K466,897.11	K1,867,576.44	
	2nd Qtr.	K466,894.11		
	3rd Qtr.	K466,894.11		
	4th Qtr.	K466,894.11		
				
2019	1st Qtr.	K677,671.41	K2,118,788.69	
	2nd Qtr.	K677,671.41		
	3rd Qtr.			
	4th Qtr.	K763,446		
				
2020	1st Qtr.	K985,017.28	

K5,753,899.22	
	2nd Qtr.	K814,547.74		
	3rd Qtr.	K2,712,290.10		
	4th Qtr.	K1,242,044.10		
				
2021	1st Qtr.	K1,483,363.02	K11,357,022.00	
	2nd Qtr.	2,496,194.98		
	3rd Qtr.	K3,688,732.02		
	4th Qtr.	K6,688,732.02		
				
2022	1st Qtr.	K3,946,943	K15,787,773.36.4	
	2nd Qtr.	3946943.34		
	3rd Qtr.	3946943.34		
	4th Qtr.	3946943.34		
				
Total Rent outstanding 2017 to 2022	K39,660,832.66	

90.	On 26 September 2022, the respondent issued a final “Letter of Demand” advising that if payment was not received or a settlement plan was not put in place for the settlement of the unpaid invoices temporally, Fincorp Haus would be closed with no further access to the building for use by the DOE.  

91.	On 3 October 2022, the respondent did not receive any payment or undertaking from the appellant or Treasury to pay the outstanding rent resulting in the respondent exercising its right under the Lease to issue a formal Notice of Closure to close Fincorp Haus if the outstanding rentals were not settled within 20 days. 

92.	The State then advised the respondent that the DOE was relocating to Vulupundi Haus.

93.	The respondent being notified of the DOE’s intention to relocate to new premises requested the DOE to remove its property and belongings from the building. 

94.	The relocation by the DOE was finally completed by the end of March 2023 and the keys to the premises returned to the respondent by the appellant. 

95.	As at March 2023, the respondent was owed the sum of K42,300,860.05 in outstanding rental arrears for Fincorp Haus by the appellant. 

96.	On 16 August 2023, the respondent instructed Ashurst PNG (Ashurst) to issue notice pursuant to sections 5 and 5A of the Claims By and Against the State Act 1996 (as amended) in relation to the claim against the State for the outstanding rentals.

97.	On 29 September 2023, the respondent wrote to GOAC requesting a meeting to finally resolve the outstanding rent pay able to the respondent for Fincorp Haus. 

98.	On 13 October 2023, an employee of the respondent met with Samuel Penias, acting Secretary for Finance, to discuss the accrued rental debt. Mr Penias gave an undertaking to pay all the outstanding rental arrears before the end of the year (that is, the end of 2023), including the outstanding rental owed for Fincorp Haus.

99.	On both 20 October 2023 and 29 November 2023, an employee of the respondent wrote to Mr Penias reminding him of his pledge at their meeting of 13 October 2023 that he would issue a letter confirming all amounts owed and pay the outstanding rent before the end of the year (2023). 

100.	On 4 December 2023, the respondent wrote to the Minister for Treasury and requested payment of the overdue outstanding rent before the end of the year. 

101.	On 15 December 2023, the respondent wrote another letter to Mr Penias to resolve the outstanding rental for Fincorp Haus

102.	On 22 January 2024, the respondent again wrote to Mr Penias advising him that it had not received any reply from his office to the numerous correspondence and requests since the meeting on 13 October 2023 leaving no option for the respondent but to seek legal assistance to recover the money owed to the Respondent. 

103.	On 2 February 2024, the respondent then wrote to the Honourable Rainbo Paita, the then Minister for Finance, advising him of the accrued rental debt, lack of payments and scheduling all the correspondence issued over the previous year in the hope that he may step in and assist with resolving the outstanding rent owed and, in particular, establishing a payment plan for the rent owed in relation to Fincorp Haus.

104.	On 16 February 2024, after having received no response to numerous correspondence previously sent to the appellant, the respondent instructed Ashurst lawyers to file the Writ of Summons and Statement of Claim commencing the proceedings in the National Court.

105.	On 13 May 2024, a further letter was sent by the respondent to Mr Penias requesting payment of the outstanding rentals with no response from the appellant.

Proceedings in the National Court

106.	On 16 February 2024, the respondent through its lawyers filed a Writ of Summons and a Statement of Claim claiming damages under the terms and conditions of the Lease, or, alternatively, a sum payable by way of compensation pursuant to the Lease or damages for breach of contract, interest and costs.

107.	On 24 July 2024 after the Writ of Summons and Statement of claim remained unanswered by the appellant, the respondent moved the Court for default judgment in the proceedings below whereby the following default orders were made by the National Court under the National Court Rules 1983 (NCR):

i.	“Default judgement is entered against the defendant/ appellant for damages to be assessed. 

ii.	The Defendant shall pay the Plaintiff’s cost of the application, to be taxed, if not agreed.

iii.	Time shall be abridged.”  

108.	On 8 April 2025, his Honor Justice Makail in the National Court proceeding WS No. 21 of 2024 ordered that:

i.	“Trial on assessment of damages shall be on paper; 

ii.	The plaintiff shall file written submissions on damages including the question of whether the action is not time-bard under section 16 of the Frauds and Limitations Act 1988, by or before Friday, 25 April 2025; and
 
iii.	Until further order, the decision on the assessment of damages is reserved to a date for the parties to be advised.”

109.	On 25 April 2025, the respondent filed its ‘Plaintiff’s Submissions on Trial on Assessment of Damages’ before the hearing making its submissions to  apply the terms and conditions of the Lease to prove a breaches of the Lease were continuing breaches on an accrual basis as a series of occurrences on the authorities and case law relied upon by the respondent to prove its loss of rent.

110.	Makail J in his judgment dated 5 May 2025 after considering the evidence by way of documentary trial and receiving and considering the respondent’s submissions on damages made the following findings and said:

“1. This is an ex parte trial on the paper for assessment of damages for breach of a lease agreement following entry of default judgment for failure by the defendant to file a notice of intention to defend and defence filed on 24th July 2024...

3. I have read the affidavit of Mr. Stack (sworn on 13th September 2024) – at this point his Honour records the evidence in the affidavit on which he relies on in his judgment is this Court’s observations of the evidence.

4. That entry of default judgment does not relieve a plaintiff from proving its claim, corroboration is usually required…based on the above findings I am satisfied that the plaintiff has corroborated its claim for unpaid rentals by producing the unpaid invoices and a Statement of Account showing a sum of K42,300,860.05 as due and owing.

5. Secondly, that I am satisfied that this is not a vague and a false claim but one of a genuine service provider to the defendant where the plaintiff provides its Fincorp Haus to house the offices of the Department of Education over the years and the defendant terribly failed to honour its part of the bargain. Finally, I accept the learned counsel’s submissions that the action is not statute-barred under Section 16 of the Frauds and Limitation Act, 1988, because the breach is continuous, and a fresh cause of action arises each time a breach occurs…”

111.	The balance of the findings by the learned trial judge deals with the debate by the respondent concerning simply interest and contractual interest by refusing statutory interest applying to the claims before he made his final orders on 5 May 2025 as set out below:

i.	“Judgment is entered in favour of the plaintiff in the sum of K42,300,860.05 as outstanding rentals;

ii.	Judgment is entered in favour of the plaintiff in the sum of K13,396,653.13 as contractual interest up to 24 July 2024 and until final settlement to be calculated by the plaintiff; 

iii.	Order sought for statutory interest under the Judicial Proceedings (Interest on Debts and Damages) Act 2015, is refused;
 
iv.	Costs of proceedings to the plaintiff, to be taxed, if not agreed.
v.	Time shall be abridged.” 

112.	Accordingly, his Honour found in favour of the respondent and upheld the respondent’s claims for damages under the Lease proven by the unchallenged evidence tendered at the trial below.

113.	The appellant filed a Notice of Appeal on 16 June 2025; and 

114.	The respondent filed Notice of Objection to Competency on 01 July 2025.

NOTICE OF APPEAL

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

NOTICE OF APPEAL 

1 The Independent State of Papua New Guinea (hereafter referred to as "the Appellant") appeals from whole of the judgment and orders of His Honour, Makail J (hereafter 'Primary Judge') given on 5th May 2025 at Waigani National Court in matter entitled WS No. 21 of 2024 (CC1) (IECMS) – Grand Columbia Limited v. Independent State of Papua New Guinea (hereafter referred to as "the National Court proceeding") which ordered as follows (hereafter referred to as "the subject Order"):

(i) Judgment is entered in favour of the plaintiff in the sum of K42,300,860.05 as outstanding rentals.

(ii) Judgment is entered in favour of the plaintiff in the sum of K13,396,653.13 as contractual interest up to 24th July 2024 and until final settlement to be calculated by the Plaintiff.

(iii) Orders sought for statutory interest under the Judicial Proceedings (Interest on Debts and Damages) Act, 2015 is refused.

(iv) Cost of the proceedings to the plaintiff, to be taxed, if not agreed.

(v)  Time is abridged.

2 The appeal lies without Leave as the appeal is against the final decision of the National Court and is pursuant to Section 14(1)(b) of the Supreme Court Act.

3  GROUNDS FOR APPEAL are as follows: -

3.1. The Primary Judge erred in fact and law by wrongly exercising his discretion by acting on wrong principles in assessing and awarding damages as per the subject Order when he only relied on six (6) national court cases at paragraph 4 of his written judgement and failed to rely on the well settled principles in the case of Mel v Pakalia [2005] PGSC 36; SC790:

 (a) To discharged his duty as a judge in a trial on assessment of damages  after entry of default judgment as follows:

i)     Failing to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

ii)     Failure to ascertained whether the facts and cause of action is reasonably clear and that liability is regarded as proven; and

iii)     Failure to ascertain whether the facts or the cause of action pleaded make sense and would not make the assessment of damages a futile exercise and whether or not to revisit the issue of liability.

(b) To revisit the issue of liability and award no damages or alternatively to award damages only on a quantum meruit basis for the reasons that;

i) The facts and cause of action pleaded is statute barred as this is a claim to recover outstanding rental arrears from the period after a Commercial Lease dated 31 December 2010 (hereafter referred to as "the Agreement") between the Appellant and the Respondent expired however purportedly continued on a month-to-month basis contrary to section 47C,(2) and (3) of the Public Finance Management Act; and

ii)  The Agreement is statute barred pursuant to section 2A(2) of the Claims By & Against the State Act 1996 (as amended in 2022) and section 47D(2) and (3) of the Public Finance Management Act as the Respondent has failed to produce a properly authorized Integrated Local Purchase Order and Claim ( hereafter referred to as "ILPOC"); or an Authority to Pre-commit Expenditure (hereafter referred to as "APCE"), relating to the property and lease services, the subject of the claim, to the full amount of the claim.

3.2    The Primary Judge erred in fact and law by wrongly exercising his discretion at paragraph 4 of the written judgement by giving weight to extraneous or irrelevant matter such as the invoices and the Statement of Accounts in the Affidavit of Edmund Stack ("Mr Stack") sworn on 13 September 2024 and filed on 27th September 2024 as corroboration of the claim for unpaid rentals totalling K42,300,860.05; however are in fact not corroboration of the claim from an independent source but are evidence from Mr Stack himself as the managing director of the Respondent.

3.3     The Primary Judge erred in fact and law by wrongly exercising his discretion when he failed to take into account relevant consideration such as the fact that the Appellant has been denied the principle of natural justice after the entry of default judgement in 24 July 2024 and proceeded to assess and award damages as per the subject Order when it was plainly clear that:

i)    The Respondent for over nine (9) months (from the date of default judgment to the date of trial by paper) never served on the Appellant the Order for default judgement of 24 July 2024 to give the Appellant an opportunity to either challenge the entry of default judgment, to appeal, to negotiate settlement or to prepare and file necessary documents such as Notice of Intention to Defend or Affidavits etc. to respond during the trial on assessment of damages;

ii)    There was no Affidavit of Service filed by the Respondent confirming service of the Order for default judgement of 24 July 2024 on the Appellant from date of the default judgement to date of trial on paper;

iii)     There was no Mention Hearing after the entry of default judgment pursuant to Order 10 Rule 9A(7) of the Listing Rules 2006 of the National Court Rules hence the Primary Judge failed to consider the matters outlined in Order 10 Rule 9A(7)(4) of the Listing Rules 2006;

iv)    There was no Directions Hearing after the entry of default judgment pursuant to Order 10 Rule 9A(8) of the Listing Rules 2006 of the National Court Rules hence the Primary Judge failed to give directions for parties to attempt out of court settlement, filing of witness statement or affidavits or give directions regarding other matters set out in Rule 7 (4) and fix a date for pre-trial conference.

v)     There was no Pre-trial Conference Hearing after the entry of default judgment pursuant to Order 10 Rule 9A(9) of the Listing Rules 2006 of the National Court Rules hence the Primary Judge failed to confirm legal representation, give directions for parties to file relevant notices under the Evidence Act or directions regarding other matters set out in Rule 9 (2) and fix a date for trial and a date for status conference.

vi)   There was no Notice of Trial issued by the Registrar of the National Court on the Court file pursuant to Order 10 Rule 9 of the National Court Rules, Order 10 Rules 9A(9)(3) and 12(1) of the Listing Rules 2006 of the National Court Rules and no evidence of service of a Notice of Trial on the Appellant either by the Registrar or the Respondent;

vii)   There was no Status Conference Hearing after the entry of default judgment pursuant to Order 10 Rule 9A(10) of the Listing Rules 2006 of the National Court Rules hence the Primary Judge failed to confirm whether directions issued during Directions Hearing and Pre-trial Conference Hearing have been complied with and that the matter is ready for trial;

viii)     Prior to the subject Order, the matter came before the Court on only two (2) occasions; firstly for the hearing of the Respondents application for default judgement on 24 July 2024 and secondly on 8 April 2025 when the Primary Judge gave directions for trial on assessment of damages to be on paper, for the Respondent to file its written submissions by on or before Friday, 25 April 2025 and an order for parties to be advised on the date for the delivery of the reserved decision on assessment of damages; and
(viii)   The Respondent did not file or serve on the Appellant any notice to rely on any Affidavit pursuant to section 35(1) of the Evidence Act.

3.4 The Primary Judge exercise of discretion is unreasonable and plainly unjust as the Appellant was denied the principle of natural justice when the trial on assessment of damages was conducted by the Primary Judge on paper, in the Primary Judge's chambers, not listed pursuant to Order 10 Rule 7 of the National Court Rules and not tried in open court resulting in:

i) The Appellant being denied the opportunity to be notified by the court listings and denied the opportunity to attend to the trial in open court and respond;

ii) The Appellant has been denied the opportunity to scrutinize the judicial process in open court as the trial on assessment of damages was not recorded by the Court Reporting Services hence there is no transcript of the trial; and

iii) The Appellant has been denied the opportunity to test or examine the Respondent's case in a trial in open court as outlined in the case of Bromley v Finance Pacific Ltd [2001] PGNC 89; N2097.

3.5 The Primary Judge exercise of discretion is unreasonable and plainly unjust in conducting trial on assessment of damages on paper and in chambers when there were no practice direction or provisions under the National Court Rules for the trial to be conducted in such a manner.

3.6. The Primary Judge exercise of discretion is unreasonable and plainly unjust in conducting trial on assessment of damages on paper and in chambers when there was no evidence showing either special circumstances or balance of convenience for the trial to be conducted in such a manner.

3.7 The Primary Judge exercise of discretion is unreasonable and plainly unjust when he conducted the trial on assessment of damages on paper and in his chambers in the absence of the Appellant or noting that there are no documentation or participation from Appellant and no evidence of a Notice of Trial or the Appellant being notified of the Trial rather than be guided by Order 10 Rule 12(1) of the National Court Rules by ordering that the trial be not held unless the Appellants are notified by the Respondent or adjourning the trial.

3.8 The Primary Judge exercise of discretion is unreasonable and plainly unjust when he conducted the trial on assessment of damages on paper in his chambers in the absence of the Appellant and awarded damages to the Respondent as per the subject Order but failed to order the Respondent to serve on the Appellant the subject Order forthwith to enable the Appellant to file a Notice of Motion to set aside or vary the judgement pursuant to Order 10 Rule 12(2) and (3) of the National Court Rules for the reasons that:

i) The trial was on paper, in chambers and in the absence of the Appellant hence the Appellant will not be aware of the trial or the subject Order;

ii) The Appellant is the Independent State of Papua New Guinea and it is a matter of national interest and it is in the interest of justice that the Appellant ought to be notified forthwith of the subject Order; and

iii) The subject Order was for a judgement against the Appellant of a substantial amount of money totalling K55, 697,513.18 which would be paid out of the public funds.

116.	The orders sought by the appellant assuming the appeal is successful appear below.

4.1 The Orders sought in challenging the judgment below are that:-
“(a) Appeal be allowed.
(b) Whole of the judgment and orders of the Primary Judge given on 5th May 2025 at Waigani National Court in the National Court proceeding styled WS No. 21 of 2024 (CC1) (IECMS) – Grand Columbia Limited v. Independent State of Papua New Guinea be quashed.
(c) Pursuant to section 155(4) of the Constitution and sections 6 and 16(b) and (c) of the Supreme Court Act, the Supreme Court make no award as to damages.
(d) Alternatively, pursuant to section 16(d) and (e) of the Supreme Court Act, the National Court proceedings shall be remitted back to the National Court to be tried before a different judge.
(e) The Respondents pay the Appellant's cost of this Appeal.”
117.	The formal appeal pleadings in the Notice of Appeal are set out below for completeness.

“5. The name of the presiding judge is: His Honour Makail J

6. A transcript is required.”

NOTICE OF OBJECTION TO COMPETENCY

118.	The respondent objected to the competency of the Appeal, relying on the following grounds of objections:

1. “The Judgement of his Honour Justice Makail appealed against in this appeal was delivered on 5 May 2025. Pursuant to section 17 of the Supreme Court Act, the 40 day period within which the appellant was required to file the appeal expired on Saturday, 14 June 2025 (such day not being a Public Holiday or a Sunday), and the appellant filed its Notice of Appeal instituting this appeal on 16 June 2025, which was outside of the 40 day appeal period, and therefore the entire appeal is incompetent.
2. Further or in the alternative, Grounds 3.2 and 3.3 are questions of fact for which questions an appeal only lies with the leave of the Supreme Court pursuant to section 14(1)(c) of the Supreme Court Act (Chapter 37). Such leave has not been obtained by the appellant and therefore these grounds are incompetent and should be struck out from the Notice of Appeal.
3. Further or in the alternative, Grounds 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 relate to the order of the Primary Judge made on 8 April 2025 in the National Court proceeding WS No. 21 of 2024, in which the Primary Judge ordered that the trial on assessment of damages be on the papers, which order is not the subject of this appeal, and as such the grounds are incompetent and should be struck out from the Notice of Appeal.
4. Further or in the alternative, all the grounds of appeal set out in the Notice of Appeal filed on 16 June 2025 fail to satisfy the requirements of Order 7 Rule 9(c) and 10 of the Supreme Court Rules 2012 in the following respects:
(a) Grounds 3.1, 3.2 and 3.3 improperly pleaded that the "Primary Judge erred in fact and law" when in accordance with section 14(1)(a) and (b) of the Supreme Court Act (Chapter 37), it is required to specify whether the Primary Judge "erred in law" or "erred in mixed fact and law" so as to properly identify the grounds as grounds for which an appeal lies to the Supreme Court as of right (see Alfred Kimbu v Serah Eme Pakira (2023) SC2387 and National Capital District Water & Sewerage Limited v Yambaran Pausa Saka Ben Limited (2023) SC2365); and
(b) Grounds 3.4, 3.5, 3.6, 3.7 and 3.8 completely fail to specify whether the Primary Judge "erred in law" or "erred in mixed fact and law" in accordance with section 14(1)(a) and (b) of the Supreme Court Act (Chapter 37) so as to properly identify the grounds as grounds for which an appeal lies to the Supreme Court as of right,
and are therefore incompetent.”
119.	At the hearing of the notice of objection to competency on 30 October 2025, both Counsel for the parties addressed the grounds in objection 1 on filing the Appeal outside the 40 days appeal period pursuant to Section 17 of the Supreme Court Act and then dealt with the grounds in objections 2, 3 and 4(a)(b) relevant to the grounds of appeal themselves. 

120.	I also raised my observations to both counsel of the existence of Clause 8 of the Lease in relation to disputes in that requesting counsel address the point but for their consideration of their private agreement. 

121.	Following a short adjournment the Court reserved its decision in relation to the grounds of objection 1 to 4 to complete the hearing of the application. 

CONSIDERATION

122.	I am of the view that the appeal is competent. 

123.	I so find for the following reasons.

124.	First, 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. 

125.	The position being that the objection must go to the appeal's competency, not the Notice of Appeal.  

126.	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.

127.	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.

128.	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)”

129.	Returning to objections 2, 3 and 4 set out in the respondent’s notice of objection to competency, I note that the objections are based on non-conformity with the precise wording specified in Rules 9(c) and 10 of the Supreme Court Rules 2012. I resolve this objection by adopting the finding of Cannings J in Serowa v Dowa dealing with Order 7 Rule 9(b) but equally applicable in principle in these proceedings. 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.”

130.	It follows that the fourth ground of the objections filed on 1 July 2025 is refused.

131.	Second, in relation to the second and third grounds, I adopt the reasonings and conclusions set out in the table format below which is self – explanatory in the judgment. 

132.	Finally, in this judgment 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.

133.	The second, third and fourth grounds of the objection to competency filed on 1 July 2025 are also refused.

134.	I provide  my reasons and findings below.

Objection to competency – rulings by the Court on each of the grounds of objection filed by the respondent 

135.	The respondent argues that each ground of appeal fails to comply with the requirement of the Rules.  

136.	Further the respondent says that a general objection is raised to all the grounds of the appeal. 

137.	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:

i)	the respondent must be informed of the basis of the Appeal so the responding party can prepare its arguments. 
ii)	the court must be informed of the issues to be determined.   

138.	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. 

139.	I also find that appellant has clearly informed the court of the issues to be determined. 

140.	I now sets out the reasons.

The Application of Section 17 of the Supreme Court Act – the last day for filing an Appeal falling on a day that the Registry is closed under the 40-day rule

141.	The respondent argues that the appeal has been filed outside the 40-day limitation period prescribed by Section 17 of the Supreme Court Act (SCA) therefore the appeal is incompetent and should be dismissed relying on the 1993 decision of Tsang v. Credit Corporation (PNG) Ltd [1993] PNGLR 112.

142.	The Tsang case referred to above is distinguishable as there was no argument relevant to the cross-vesting of the National Court Rules to the Supreme Court Rules and Supreme Court Act in relation to practice and procedures to follow relevant to the facts of these current proceedings.

143.	Both Counsel candidly advised the Court that there are no case law or other relevant authorities to assist this Court to determine the effect of Order 2 Rule 1 of the SCR in respect of the application of the National Court Rules on the last day of filing of a Notice of Appeal if it fell on the weekend when the Registry is closed.

144.	The Court is now asked to examine and determine the interplay between Section 17 of the Supreme Court Act and the operative National Court Rules, if any, to assist the Court on this point. 

145.	To explain, the term "cross-vesting" is a specific legal term for a legislative scheme that grants the jurisdiction of one court to another or the rules of practice and procedures of one court to be vested in another court within the Nation with the effect of mutual or supplementary jurisdiction to assist in the administration of justice when there is, in effect, a ‘gap’ in the rules of one court that can be remedied by the adoption of the rules of another court with the scheme. 

146.	Order 2 Rule 1 of the SCR gives effect to the legislative scheme under which the jurisdiction of any court included in the scheme is vested in every other court in the scheme. 

147.	The last day for the filing of the appeal by the appellant is not disputed by the parties in that the National Court decision was made on 5 May 2025 with the last day under the 40-day rule lapsing on 14 June 2025 being a Saturday, a day the National and Supreme Court Registry is closed over the weekend.

148.	The Notice of Appeal was filed by the appellant on Monday 16 June 2025, the first available day after 14 June 2025 following the relevant weekend as the Registry reopened to conduct the business of the Court.

149.	The Notice of Appeal was filed by the appellant on 16 June 2025.

150.	Section 17 of the SCA states as follows:

TIME FOR APPEALING UNDER DIVISION 2.

“Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.”

151.	Order 2 Rule 1 of the Supreme Court Rules (SCR) cross-vests the following Rules of the National Court Rules which shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to and including the sittings and vacations of the Court under Order 2 Division 1 and the Registry opening hours under Order 2 Rule 11 and 12 of the NCR.

152.	Order 2 Rule 1(h) of the Supreme Court Rules (SCR) provides the following:

“The following Rules of the National Court shall apply as if they were, with necessary modifications, Rules of the Supreme Court with regard to— 
...
(h) Any other matter where there is a relevant provision in the National Court Rules, no provision in these Rules and no order has been made as to the procedure to be followed.”
153.	Similarly, Section 184 of the Constitution provides general powers to the judges of the Supreme Court with respect of practice and procedure to make rules of court and specifically Section 185 of the Constitution also comes to the aid of the Court in the event of a lack of procedural provision in either the Supreme or National Court Acts or Rules to provide the Courts with the power(s) to remedy the lack of procedural rules that may cause prejudice to a party in any proceedings before the Courts which relevantly states:

Section 185. LACK OF PROCEDURAL PROVISION.

“If in the circumstances of a particular case before a court has no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

154.	Applying the facts referred to above, Order 2 Rule 11 of the NCR states that the Registry hours that apply are that the Registry shall be open to the public for business every day of the year except Saturdays, Sundays and Court holidays and that the Registry shall be open from 8.00am to 12.00 noon and 1.00pm to 3.30pm.

155.	There is no factual dispute that, the final day of filing the Notice of Appeal by the appellant fell on a Saturday being the 14 June 2025 which meant the Registry was closed.

156.	The next option available to the appellant, which was permissive, however we I emphasise not mandatory and at the discretion of the State to make the choice available under the NCR, was to open the Registry in order to file its Notice of Appeal outside of business hours.

157.	Order 2 Rule 12 of the NCR states that:

“where any party or practitioner or any person having any interest in any proceedings pending or about to be commenced has any proper business to transact with the Registrar at any time when his office is not open to the public which business for any reason could not be transacted when the office is next to be opened in the normal course or which might if so transacted involve the person concerned or any other person in serious risk of prejudice that person may, on payment of a fee of K5.00, require the Registrar to open his office to transact the business in question at some proper and convenient time.”

158.	The State did not exercise the option available to it pursuant to Order 2 Rule 12 of the NCR in the circumstances and waited until the Registry opened for business on Monday 16 June 2025 which it is entitled to do. 

159.	During arguendo and oral submissions by both Counsel during the objection to competency hearing on the appeal being filed out of time as one of the grounds of competency of the grounds of appeal, both Counsel agreed that the operation of Order 2 Rule 12 of the NCR was available to the State but was not a mandatory provision for the State to take advantage of the Rules to open the Registry to file the appeal at a cost of K5.00 allowing it to file the Notice of Appeal over the non-operational hours of the Registry over the weekend.

160.	Order 1 Rule 14 of the NCR provides for the reckoning of time that where the last day for doing a ‘thing’ is a day on which the Registry is closed, the thing may be done on the “next day” on which the Registry is open.

161.	The construction of Order 1 Rule 14 of the NCR is to interpret the rule in its clear English meaning, intention and the language used by the Rule.

162.	Where the Registry is closed, “the thing” means any business that needs to be conducted by members of the legal profession or citizens requiring the service of the Registry and its staff concerning the core business of the Court, which includes the filing of documents by parties including the State in this instance, requiring to file its Notice of Appeal in this Court is governed in a directive construction under Order 1 Rule 14 of the NCR as a matter of construction of the Rule. 

163.	There is no dispute on the facts that the Registry was closed on Saturday 14 June 2025, as indeed the Registry was closed on Sunday 15 June 2025, when the 40 days from the date of judgment expired under Section 17 of the Supreme Court Act.

164.	By application of Order 1 Rule 14 of the NCR, the ‘next day’ contemplated under the Rules was when the Registry was open again which was Monday 16 June 2025 when the Registry next opened its doors to conduct the business of the Court.

165.	In any event, it is my view that Order 2 Rule 1 of the Supreme Court Rules (SCR) cross-vests the National Court Rules to the Supreme Court is to be considered and must necessarily be applied to the circumstances of these proceedings in that:

i.	The last day for filing the Notice of Appeal by the appellant was Saturday 14 June 2025 pursuant to Section 17 of the SCA;

ii.	There is no provision under the Supreme Court Act or Rules that deals with the Registry being closed on the weekends or during vacation of the Court concerning the filing of a Notice of Appeal or any other document in this court if the last day of filing the document falls on a day the Registry is closed.

iii.	Order 2 Rule 1 of the SCR permits the Supreme Court to cross – vest and apply the National Court Rules when there is a lack of procedural rule or inadequate provision as contemplated by s.184 - 185 of the Constitution.

iv.	Order 1 Rule 14 of the NCR can thereby be applied to provide a moratorium or grace period in favour of the appellant to postpone filling its appeal on the 40-day rule under s.17 of the SCA when the Registry is closed on the weekend and file its appeal on the first day the Registry was open which was Monday 16 June 2025. 

v.	The appellant filed its appeal on 16 June 2025 which is permissible under the SCR cross-vesting the NCR as ordered by the Court. 

166.	I am of the view that the appeal was filed in the Registry on Monday 16 June 2025 in compliance with the 40-day rule pursuant to Section 17 of the SCA taking into account that the Registry was closed on the Saturday 14 June 2025 and the Registry re-opening on 16 June 2025.

Ruling on each objection

167.	For the above reasons my view and findings is that by operation of Order 1 Rule 14 of the National Court Rules as read together with Section 184 and 185 of the Constitution, the appeal filed on 16 June 2025 by the appellant was validly filed in time and did not breach Section 17 of the SCA 40 day rule in these circumstances. 

168.	Ground 1 of the objection to competency relied on by the respondent must fail and is refused. 

169.	I have dealt with the first ground of objection concerning the notice of appeal filed outside the 40-day period prescribed by Section 17 of the Supreme Court Act in the preceding paragraphs of this judgment.  

170.	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.

171.	The table is produced for convenience and ease of reference. 

172.	The table is to ensure the speedy publication of the judgment of the court in this matter in a timely and efficient manner.

173.	I set out in the following table to include each ground of appeal, the objections to it submitted by the respondent and my ruling on each objection:
No 	Ground 	Objection 	Determination 	
	Filing of the Notice of Appeal in breach of Section 17 of the Supreme Court Act (outside the day period prescribed by the Act.) 	The Judgement of his Honour Justice Makail appealed against in this appeal was delivered on 5 May 2025. Pursuant to section 17 of the Supreme Court Act (Chapter 37), the 40 day period within which the appellant was required to file the appeal expired on Saturday, 14 June 2025 (such day not being a Public Holiday or a Sunday), and the appellant filed its Notice of Appeal instituting this appeal on 16 June 2025, which was outside of the 40 day appeal period, and therefore the entire appeal is incompetent.

	Objection refused.
By application of Order 1 Rule 14 of the NCR in the reasons set out in paragraphs 69 – 95 of this judgment the appellant filed its appeal in time on Monday 16 June 2025 when the Registry re-opened following the weekend it was closed. 

	
3.1 	The Primary Judge erred in fact and law by wrongly exercising his discretion by acting on wrong principles in assessing and awarding damages as per the subject Order when he only relied on six (6) national court cases at paragraph 4 of his written judgement and failed to rely on the well settled principles in the case of Mel v Pakalia [2005] PGSC 36; SC790:
(a) To discharged his duty as a judge in a trial on assessment of damages after entry of default judgment as follows:
i) Failing to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;
ii) Failure to ascertained whether the facts and cause of action is reasonably clear and that liability is regarded as proven; and
iii) Failure to ascertain whether the facts or the cause of action pleaded make sense and would not make the assessment of damages a futile exercise and whether or not to revisit the issue of liability.
(b) To revisit the issue of liability and award no damages or alternatively to award damages only on a quantum meruit basis for the reasons that;
i) The facts and cause of action pleaded is statute barred as this is a claim to recover outstanding rental arrears from the period after a Commercial Lease dated 31 December 2010 (hereafter referred to as 'The Agreement') between the Appellant and the Respondent expired however purportedly continued on a month-to-month basis contrary to section 47C,(2) and (3) of the Public Finance Management Act, and
ii) The Agreement is statute barred pursuant to section 2A(2) of the Claims By & Against the State Act 1996 (as amended in 2022) and section 470(2) and (3) of the Public Finance Management Act as the Respondent has failed to produce a properly authorized Integrated Local Purchase Order and Claim (hereafter referred to as "ILPOC"); or an Authority to Pre-commit Expenditure (hereafter referred to as "APCE"), relating to the property and lease services, the subject of the claim, to the full amount of the claim.

	Further or in the alternative, all the grounds of appeal set out in the Notice of Appeal filed on 16 June 2025 fail to satisfy the requirements of Order 7 Rule 9(c) and 10 of the Supreme Court Rules 2012 in the following respects:
(a) Grounds 3.1, 3.2 and 3.3 improperly pleaded that the "Primary Judge erred in fact and law" when in accordance with section 14(1)(a) and (b) of the Supreme Court Act (Chapter 37), it is required to specify whether the Primary Judge "erred in law" or "erred in mixed fact and law" so as to properly identify the grounds as grounds for which an appeal lies to the Supreme Court as of right (see Alfred Kimbu v Serah Eme Pakira (2023) SC2387 and National Capital District Water & Sewerage Limited v Yambaran Pausa Saka Ben Limited (2023) SC2365); and
	Objection refused as to 3.1(a)(i)-(iii). It is sufficient for a ground of appeal to make a broad statement that in fact and law the trial judge erred in failing to consider, analyse and draw conclusion from the totality of the evidence on the failure to make a ‘cursory inquiry’ to be satisfied that the facts and cause of action are pleaded with sufficient clarity as a complaint of the denial of natural justice in trial below. 

Objection refused as to 3.1(b)(i)-(ii). It is sufficient for a ground of appeal to plead and challenge on appeal that the cause of action and claim below was statute barred under a contract being the commercial lease. 
Further, the appeal pleads that the Public Finance Management Act was breached, the Claims By and Against the State Act  was breached and the complaint was in breach of inferred authorization under the local procedure order and claims and Authority to pre – commit expenditure. 
	
3.2 	The Primary Judge erred in fact and law by wrongly exercising his discretion at paragraph 4 of the written judgement by giving weight to extraneous or irrelevant matter such as the invoices and the Statement of Accounts in the Affidavit of Edmund Stack ("Mr Stack") sworn on 13 September 2024 and filed on 27th September 2024 as corroboration of the claim for unpaid rentals totalling K42,300,860.05; however are in fact not corroboration of the claim from an independent source but are evidence from Mr Stack himself as the managing director of the Respondent.	Further or in the alternative, Grounds 3.2 and 3.3 are questions of fact for which questions an appeal only lies with the leave of the Supreme Court pursuant to section 14(1)(c) of the Supreme Court Act (Chapter 37). Such leave has not been obtained by the appellant and therefore these grounds are incompetent and should be struck out from the Notice of Appeal.

Further or in the alternative, all the grounds of appeal set out in the Notice of Appeal filed on 16 June 2025 fail to satisfy the requirements of Order 7 Rule 9(c) and 10 of the Supreme Court Rules 2012 in the following respects:
(a) Grounds 3.1, 3.2 and 3.3 improperly pleaded that the "Primary Judge erred in fact and law" when in accordance with section 14(1)(a) and (b) of the Supreme Court Act (Chapter 37), it is required to specify whether the Primary Judge "erred in law" or "erred in mixed fact and law" so as to properly identify the grounds as grounds for which an appeal lies to the Supreme Court as of right (see Alfred Kimbu v Serah Eme Pakira (2023) SC2387 and National Capital District Water & Sewerage Limited v Yambaran Pausa Saka Ben Limited (2023) SC2365); and

	Objection refused. It is sufficient for a ground of appeal to refer to the challenge to the independence of the evidence as a material fact that would have led to a mistrial on damages. 	
3.3 	The Primary Judge erred in fact and law by wrongly exercising his discretion when he failed to take into account relevant consideration such as the fact that the Appellant has been denied the principle of natural justice after the entry of default judgement on 24 July 2024 and proceeded to assess and award damages as per the subject Order when it was plainly clear that:
i) The Respondent for over nine (9) months (from the date of default Judgment to the date of trial by paper) never served on the Appellant the Order for default Judgement of 24 July 2024 to give the Appellant an opportunity to either challenge the entry of default judgment, to appeal, to negotiate settlement or to prepare and file necessary documents such as Notice of Intention to Defend or Affidavits etc. to respond during the trial on assessment of damages;
ii) There was no Affidavit of Service filed by the Respondent confirming service of the Order for default judgement of 24 July 2024 on the Appellant from date of the default judgement to date of trial on paper;
iii) There was no Mention Hearing after the entry of default judgment pursuant to Order 10 Rule 9A(7) of the Listing Rules 2005 of the National Court Rules hence the Primary Judge failed to consider the matters outlined in Order 10 Rule 9A(7)(4) of the Listing Rules 2005;
iv) There was no Directions Hearing after the entry of default judgment pursuant to Order 10 Rule 9A(8) of the Listing Rules 2005 of the National Court Rules hence the Primary Judge failed to give directions for parties to attempt out of court settlement, filing of witness statement or affidavits or give directions regarding other matters set out in Rule 7 (4) and fix a date for pre-trial conference.
v) There was no Pre-trial Conference Hearing after the entry of default judgment pursuant to Order 10 Rule 9A(9) of the Listing Rules 2005 of the National Court Rules hence the Primary Judge failed to confirm legal representation, give directions for parties to file relevant notices under the Evidence Act or directions regarding other matters set out in Rule 9 (2) and fix a date for trial and a date for status conference.
vi) There was no Notice of Trial issued by the Registrar of the National Court on the Court file pursuant to Order 10 Rule 9 of the National Court Rules, Order 10 Rules 9A(9)(3) and 12(1) of the Listing Rules 2005 of the National Court Rules and no evidence of service of a Notice of Trial on the Appellant either by the Registrar or the Respondent;
vii) There was no Status Conference Hearing after the entry of default judgment pursuant to Order 10 Rule 9A(10) of the Listing Rules 2005 of the National Court Rules hence the Primary Judge failed to confirm whether directions issued during Directions Hearing and Pre-trial Conference Hearing have been complied with and that the matter is ready for trial;
(vii) Prior to the subject Order, the matter came before the Court on only two (2) occasions; firstly for the hearing of the Respondents application for default judgement on 24 July 2024 and secondly on 8 April 2025 when the Primary Judge gave directions for trial on assessment of damages to be on paper, for the Respondent to file its written submissions by or before Friday, 25 April 2025 and an order for parties to be advised on the date for the delivery of the reserved decision on assessment of damages; and
(viii) The Respondent did not file or serve on the Appellant any notice to rely on any Affidavit pursuant to section 35(1) of the Evidence Act.

	Further or in the alternative, Grounds 3.2 and 3.3 are questions of fact for which questions an appeal only lies with the leave of the Supreme Court pursuant to section 14(1)(c) of the Supreme Court Act (Chapter 37). Such leave has not been obtained by the appellant and therefore these grounds are incompetent and should be struck out from the Notice of Appeal.

Further or in the alternative, Grounds 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 relate to the order of the Primary Judge made on 8 April 2025 in the National Court proceeding WS No. 21 of 2024, in which the Primary Judge ordered that the trial on assessment of damages be on the papers, which order is not the subject of this appeal, and as such the grounds are incompetent and should be struck out from the Notice of Appeal.

Further or in the alternative, all the grounds of appeal set out in the Notice of Appeal filed on 16 June 2025 fail to satisfy the requirements of Order 7 Rule 9(c) and 10 of the Supreme Court Rules 2012 in the following respects:
(a) Grounds 3.1, 3.2 and 3.3 improperly pleaded that the "Primary Judge erred in fact and law" when in accordance with section 14(1)(a) and (b) of the Supreme Court Act (Chapter 37), it is required to specify whether the Primary Judge "erred in law" or "erred in mixed fact and law" so as to properly identify the grounds as grounds for which an appeal lies to the Supreme Court as of right (see Alfred Kimbu v Serah Eme Pakira (2023) SC2387 and National Capital District Water & Sewerage Limited v Yambaran Pausa Saka Ben Limited (2023) SC2365); and

	Objection refused. It is easy to identify in this ground of appeal from the evidence in the judgment below to argue the principles of a fair trial and violations of the principles of natural justice have been offended in the determination of a default judgment against the State in effect breaching of Section 59 of the Constitution guarantees where leave is not required. 	
3.4	The Primary Judge exercise of discretion is unreasonable and plainly unjust as the Appellant was denied the principle of natural justice when the trial on assessment of damages was conducted by the Primary Judge on paper, in the Primary Judge's chambers, not listed pursuant to Order 10 Rule 7 of the National Court Rules and not tried in open court resulting in:
i) The Appellant being denied the opportunity to be notified by the court listings and denied the opportunity to attend to the trial in open court and respond;
ii) The Appellant has been denied the opportunity to scrutinize the judicial process in open court as the trial on assessment of damages was not recorded by the Court Reporting Services hence there is no transcript of the trial; and
iii) The Appellant has been denied the opportunity to test or examine the Respondent's case in a trial in open court as outlined in the case of Bromley v Finance Pacific Ltd [2001] PGNC 89; N2097.
	Further or in the alternative, Grounds 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 relate to the order of the Primary Judge made on 8 April 2025 in the National Court proceeding WS No. 21 of 2024, in which the Primary Judge ordered that the trial on assessment of damages be on the papers, which order is not the subject of this appeal, and as such the grounds are incompetent and should be struck out from the Notice of Appeal.	Objection refused. It is a clear point that is arguable on appeal, and the reasons are repeated and relied upon in the reasons referred to in grounds 3.1 – 3.3 above. 

	
3.5	The Primary Judge exercise of discretion is unreasonable and plainly unjust in conducting trial on assessment of damages on paper and in chambers when there were no practice direction or provisions under the National Court Rules for the trial to be conducted in such a manner.

 
 
 	Further or in the alternative, Grounds 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 relate to the order of the Primary Judge made on 8 April 2025 in the National Court proceeding WS No. 21 of 2024, in which the Primary Judge ordered that the trial on assessment of damages be on the papers, which order is not the subject of this appeal, and as such the grounds are incompetent and should be struck out from the Notice of Appeal.
	Objection refused. The argument is clear: it must be read together with grounds 3.5 to 3.8 of the appeal that the appellate suffered prejudiced by the case -management of the trial below in the non-application of the National Court Rules denying the State a right to be heard contained in ground 3.1 – 3.4 above as the introductory grounds of appeal.  	
3.6 	 The Primary Judge exercise of discretion is unreasonable and plainly unjust in conducting trial on assessment of damages on paper and in chambers when there was no evidence showing either special circumstances or balance of convenience for the trial to be conducted in such a manner.	Further or in the alternative, Grounds 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 relate to the order of the Primary Judge made on 8 April 2025 in the National Court proceeding WS No. 21 of 2024, in which the Primary Judge ordered that the trial on assessment of damages be on the papers, which order is not the subject of this appeal, and as such the grounds are incompetent and should be struck out from the Notice of Appeal.
	Objection refused. It is further supplementary grounds of appeal on the conduct of the trial below alleging a mistrial not having a chance to be heard at trial. 

	
3.7 	The Primary Judge exercise of discretion is unreasonable and plainly unjust when he conducted the trial on assessment of damages on paper and in his chambers in the absence of the Appellant or noting that there are no documentation or participation from Appellant and no evidence of a Notice of Trial or the Appellant being notified of the Trial rather than be guided by Order 10 Rule 12(1) of the National Court Rules by ordering that the trial be not held unless the Appellants are notified by the Respondent or adjourning the trial.
 
	Further or in the alternative, Grounds 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 relate to the order of the Primary Judge made on 8 April 2025 in the National Court proceeding WS No. 21 of 2024, in which the Primary Judge ordered that the trial on assessment of damages be on the papers, which order is not the subject of this appeal, and as such the grounds are incompetent and should be struck out from the Notice of Appeal.

	Objection refused. 
Relevantly, this ground of appeal is granular in that it is argued that the specific National Court Rule Order 10 Rule 12(1) of the NCR were breached prejudicing the rights of the State to be heard at the trial below. 

	
3.8  	The Primary Judge exercise of discretion is unreasonable and plainly unjust when he conducted the trial on assessment of damages on paper in his chambers in the absence of the Appellant and awarded damages to the Respondent as per the subject Order but failed to order the Respondent to serve on the Appellant the subject Order forthwith to enable the Appellant to file a Notice of Motion to set aside or vary the judgement pursuant to Order 10 Rule 12(2) and (3) of the National Court Rules for the reasons that:
i) The trial was on paper, in chambers and in the absence of the Appellant hence the Appellant will not be aware of the trial or the subject Order;
ii) The Appellant is the Independent State of Papua New Guinea, and it is a matter of national interest, and it is in the interest of justice that the Appellant ought to be notified forthwith of the subject Order; and
iii) The subject Order was for a judgement against the Appellant of a substantial amount of money totalling K55, 697,513.18 which would be paid out of the public funds.

	Further or in the alternative, Grounds 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 relate to the order of the Primary Judge made on 8 April 2025 in the National Court proceeding WS No. 21 of 2024, in which the Primary Judge ordered that the trial on assessment of damages be on the papers, which order is not the subject of this appeal, and as such the grounds are incompetent and should be struck out from the Notice of Appeal.	Objection refused.
The end result is that the appellant complains that a denial of procedural fairness occurred in that  orders ought to have been made by the Court below and served on the appellant for the respondent to secure default judgment on the State so that the State had the opportunity to set aside the default judgment pursuant to Order 10 Rules 12(2) and (3) as a matter of procedural fairness. 	
All		Further or in the alternative, all the grounds of appeal set out in the Notice of Appeal filed on 16 June 2025 fail to satisfy the requirements of Order 7 Rules 9(c) and 10 of the Supreme Court Rules 2012 in the following respects:
(a) Grounds 3.1, 3.2 and 3.3 improperly pleaded that the "Primary Judge erred in fact and law" when in accordance with section 14(1)(a) and (b) of the Supreme Court Act (Chapter 37), it is required to specify whether the Primary Judge "erred in law" or "erred in mixed fact and law" so as to properly identify the grounds as grounds for which an appeal lies to the Supreme Court as of right (see Alfred Kimbu v Serah Eme Pakira (2023) SC2387 and National Capital District Water & Sewerage Limited v Yambaran Pausa Saka Ben Limited (2023) SC2365); and
(b) Grounds 3.4, 3.5, 3.6, 3.7 and 3.8 completely fail to specify whether the Primary Judge "erred in law" or "erred in mixed fact and law" in accordance with section 14(1)(a) and (b) of the Supreme Court Act (Chapter 37) so as to properly identify the grounds as grounds for which an appeal lies to the Supreme Court as of right,
and are therefore incompetent.
	Objection refused.
The form of the grounds of appeal is substantially compliant with Supreme Court Rules and any alleged defect in form is trivial.
The objection as to competency must demonstrate that all grounds of appeal are invalid which is not the case in our reasons above.
The end result is that if one ground of appeal is valid and survives the respondent’s challenge, the appeal is valid, and the objection fails.

In any event the debate that the words were not precisely used in that the trial judge ‘erred in “law” or erred in “mixed fact and law” is overtaken by the totality of the appeal which points to the arguments that a mistrial occurred in that the State was prejudiced by the fact and laws and violation of procedures relating to natural justice and the conduct of a ‘fair trial’ prescribed by Section 59 of the Constitution and the Constitution guarantees of natural justice and procedural fairness and the fact that the appellant is appealing against the whole of the judgment of the trial judge below. 	

174.	For all the reasons set out in the table referred to above I am of the view that the Notice of Appeal is competent.

175.	The respondent’s principal objections to the form of the Notice of Appeal are set out in Grounds 2, 3 and 4(a) and (b) of the respondent’s objections which state that the grounds in 3.2 to 3.8 violate Section 14(1)(a)(b)(c) of the Supreme Court Act as questions of fact requiring leave of this Court and Order 7 Rules 9(c) and 10 of the Supreme Court Rules requiring the words “erred in mixed fact and law” to appear in the wording of the appeal to be competent. 

176.	The exceptions to the mandatory nature of the appellant’s compliance is the precise wording in the grounds of the 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. 

177.	I adopt the above authority which is equally relevant and applicable to alleged breaches of the precise wording to be used applying Section 14(1)(a)-(c) of the Supreme Court Act. 

178.	The respondent argues in Grounds 4(a) and (b) as a wholesale challenge to grounds 3.4, 3.5, 3.6, 3.7 and 3.8 that: 

“Further or in the alternative, all the grounds of appeal set out in the Notice of Appeal filed on 16 June 2025 fail to satisfy the requirements of Order 7 Rule 9(c) and 10 of the Supreme Court Rules 2012 in the following respects:
(a) Grounds 3.1, 3.2 and 3.3 improperly pleaded that the "Primary Judge erred in fact and law" when in accordance with section 14(1)(a) and (b) of the Supreme Court Act (Chapter 37), it is required to specify whether the Primary Judge "erred in law" or "erred in mixed fact and law" so as to properly identify the grounds as grounds for which an appeal lies to the Supreme Court as of right (see Alfred Kimbu v Serah Eme Pakira (2023) SC2387 and National Capital District Water & Sewerage Limited v Yambaran Pausa Saka Ben Limited (2023) SC2365); and
(b) Grounds 3.4, 3.5, 3.6, 3.7 and 3.8 completely fail to specify whether the Primary Judge "erred in law" or "erred in mixed fact and law" in accordance with section 14(1)(a) and (b) of the Supreme Court Act (Chapter 37) so as to properly identify the grounds as grounds for which an appeal lies to the Supreme Court as of right,...”

179.	I find that Ground 4(a) and (b) of the objections and the submissions supporting the objections underwhelming. 

180.	I find that the failure by the appellant to craft the exact words “erred in mixed fact and law” rather than the nature and degree of the grounds of appeal using the words “erred in fact and law” as a conjunctive rather than its disjunctive grammatical sense sufficient for the respondent to meet the appellant’s challenges of the judgment below sufficient in its grounds of appeal.

181.	I find that the defect in the wording used by the appellant trivial on the principles referred to in the authority of Covec as illustrative on the issue of compliance with words under the relevant Supreme Court Act which I find is captious and an overscrupulous objection taken by the respondent when it is clear that the appellant is appealing in its argument the whole of the judgment below pointing to the absence of a fair trial. 

182.	It did not, and as such failed to satisfy the requirements of Order 7 Rule 9(b) and (e) of the Rules. 

183.	It is my view, the incorrect terminology used by the appellant in the grounds of appeal are not fatal as the substantial reasoning process of the trial judge is set out in a five-page judgment in the trial below which was an assessment of damages.

184.	It is not difficult to interpolate that the appellant states in the Notice of Appeal the whole judgement is challenged in circumstances where there is only 5 pages to consider as representing the whole of the judgment relevant to the appeal.

185.	It seems that the objections reflect nitpicking grammatical structuring in the wording used by the appellant in drafting the grounds of appeal and do not prejudice the respondent on the case it has to meet on appeal. 

186.	Upon examination of the trial judge’s ruling in the 5 page judgment in the Court below, I am persuaded by the submissions of the appellant and finds that the whole of the judgment is sought to be set aside as a miscarriage of justice in that the State was precluded from participating at the trial to put its arguments including the loss of opportunity to set aside the default judgment available to the appellant under the National Court Rules.

187.	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 Act and its Rules. 

188.	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 and the granular grounds put forward by the appellant resulting in the entire appeal being dismissed.

189.	In National Development Bank v Noka Builders Limited 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.” 

190.	The recent full bench of the Supreme Court in Yambaki Surveys Limited v Nambawan Super Limited (Salika CJ Polume-Kiele J and Shepherd J) discussed the courts current and progressive trend for a more liberal approach against the strict approach to compliance adopted by previous full benches of the Supreme Court.

191.	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 14 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.” 

192.	The Notice of Appeal is substantially competent in my finding to address the issue that form over substance cannot hinder the rights of the appellant to prosecute its appeal following the principles set in in Yambaki and Covec by the full court which included the Chief Justice Salika in Yambaki. 

193.	The interest of justice dictate that the Appeal should proceed.

194.	I have found that the Notice of Appeal is competent and raises arguable appeal points relevant to the conduct of the trial below, the absence of a fair trial and the special defences found in the grounds of appeal.

195.	Relevantly in re Chan v Arendi, 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.”

196.	Equally, this Court must apply the interests of justice and not bound by previous decisions in this regard in that it is in my opinion that the Notice of Appeal is competent, the failure to strictly comply with the Supreme Court Rules required wording are trivial and the Court so holds that the appeal will proceed to hearing.  

DISCERNMENT AND DISPOSITION OF THE NOTICE OF OBJECTION TO COMPETENCY

197.	I find that grounds 1-4(a) and (b) of the Notice of Objection to Competency filed by the respondent filed on 1 July 2025 are refused and dismissed. 

198.	The Notice of Appeal filed on 16 June 2025 is competent on all grounds and will proceed to be heard on appeal.

199.	I raised an observation in my supervisory jurisdiction of this Court for the parties to consider Clause 8 of the Lease. 

200.	Relevantly, Clause 8 of the Lease provides the following terms and conditions involving disputes under the Lease:

“8.0 DISPUTES
In any dispute or proceeding between the parties, both shall act reasonably and without delay and make all admissions necessary to enable the real issues to be decided by the person specified in Item 12 of the Schedule to whom the subject matter of the dispute shall be referred who shall act as an expert and whose decision shall be final and binding on the parties.” 
(my emphasis added)

201.	Item 12 of the Schedule to the Lease refers to an expert from the PNG Institute of Valuers to arbitrate any disputes between the parties.

202.	It seems that unless special circumstances prevailed at the time when the proceedings were commenced in the National Court before Makail J, Clause 8 Item 12 was temporally abrogated, renunciated, or suspended in favour of litigating in the National Court.

203.	It is the duty of both Counsel for the parties to direct this observation made by me to the members of the Supreme Court bench that will hear this Appeal and address this pendulous issue on appeal.

ORDERS

204.	Accordingly, I order that:

i.	The objection to competency, filed by notice of objection to competency on 1 July 2025, is refused and thereby dismissed.

ii.	The Notice of Appeal filed on 16 June 2025 is competent and will proceed to be heard in this Court. 

iii.	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.

iv.	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.

ORDER (BY MAJORITY OF THE COURT)
 
1.	The objection to competency filed by the respondent on 1 July 2025 is upheld.

2.	This appeal is dismissed for being incompetent.

3.	The appellant shall pay the respondent’s costs of and incidental to these proceedings, to be taxed if not agreed.

4.	Time for entry of these orders is abridged to the time for settlement by the Registrar which shall take place forthwith.
_________________________________________________________________
Lawyer for the appellant: Solicitor General
Lawyers for the respondent: Ashurst PNG