SC2840

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 39 OF 2024 (IECMS)

BETWEEN:
PACIFIC NETWORK SERVICES LIMITED
First Appellant

AND:
L&Z ENTERPRISE LIMITED
Second Appellant

AND:
SUN PACIFIC INVESTMENTS LIMITED
First Respondent

AND:
ALE ANE in his capacity as REGISTRAR OF TITLES
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WAIGANI: FRANK J, CAREY J, CROWLEY J
25 NOVEMBER 2025; 8 JANUARY 2026

LEAVE FOR OBJECTION TO COMPETENCY — Competency – Notice of Motion - Order 10 Rule 3(b)(i) – Objection to competency – Supreme Court Rules – Mandatory Compliance - Section 185 Constitution – Interest of Justice

The First Respondent sought leave for objection to competency filed out of time in relation to the Notice of Motion by the Appellants. 

Held:

By the majority (per Carey J and Crowley J):

1.	The Court is obligated to ensure that there is compliance by parties in respect of what is required by the Supreme Court Rules.

2.	Deviation from the mandatory compliance as expressed in Order 10 Rule 3(b)(i) of the Supreme Court Rules will render an appeal incompetent.

3.	The Notice of Objection to Competency was defective in that the First Respondent was required to file its Notice of Objection to Competency within 14 days after service of the Notice of Appeal. 

4.	The Court exercised its discretion given that there were arguable grounds and the Appellants had been put on notice with the objections heard and determined on their merits: referred to Akiko v Ekepa [2022] PGSC 10; SC2203

5.	In the interest of justice and applying S.185 of the Constitution leave is granted for the hearing on the objection to competency.

6.	The First Respondent’s Objection to competency is refused.

7.	Costs be in the cause.

8.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Cases cited
Akiko v Ekepa [2022] PGSC 10; SC2203
Cocoa Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52; SC1221
Kuman v Digicel (PNG) Ltd [2017] PGSC 41; SC1638
Manda v Yatala Ltd [2005] PGSC 22; SC795
Mulia (PNG) Limited v Shepherd & Ors [2023] PGSC 152; SC2504

Counsel
P Kult, for the first appellant
M Wangatau, for the second appellant
I Shepherd assisted by M Muga, for the first respondent

JUDGMENT

1.	CAREY J AND CROWLEY J: This is the decision in relation to Leave to file and serve a Notice of Objection to Competency out of time on 19th November 2025 by Sun Pacific Investment Limited (the First Respondent).

2.	The Court considered whether to proceed with the Application to adduce fresh evidence and the appeal and made a determination to hear the First Respondent’s Application. 

3.	The Application to adduce fresh evidence and the appeal were vacated and adjourned to the registry for re-listing subject to the ruling in this matter.

BACKGROUND
4.	The matter came before the court on 25 November 2025 for hearing on appeal filed by Pacific Network Service Limited (the First Appellant) and L & Z Enterprise Limited (the Second Appellant) collectively the Appellants.

5.	The Appellants filed a Notice of Motion on 12 September 2024 appealing against a judgement of the National Court delivered on 23 August 2024.

6.	An amended Notice of Motion was filed on 24 March 2025 (the Notice of Motion) and served on 26 March 2025.

7.	The First Respondent raised a preliminary matter and made an application for leave for the court to hear the Notice of Objection to Competency.

8.	The application was made pursuant to Order 2 Rule 1(h) of the Supreme Court Rules (SCR) and Section 185 of the Constitution.

9.	Leave was granted to the First Respondent for the court to hear the objection to competency.

ISSUES 
10.	The areas for determination by the court include:

a)	Whether leave should be granted to hear the objection to competency out of time.
b)	Whether the appeal is incompetent under the SCR.

DETERMINATION
11.	The First Respondent avers that the Appeal is incompetent on the basis that the Notice of Motion did not annex all documents as required by Order 10 Rule 3(b)(i) of the SCR.

12.	Order 10 Rule 3 states:

The notice of motion shall—
*  	 (a)      	show where appropriate the particulars set out in a notice of appeal under 
Order 7 rule 9; and
       (b)       have annexed—
(i)        copies of all documents which were before the Judge of the National 
Court appealed from; and
 	 	(ii)       a copy of the order made, certified by the Judge's Associate or the 
Registrar;
13.	The Second Appellant concedes that there are two documents missing which are prescribed by Order 10 Rule 3(b)(i) of the SCR.

14.	The First Appellant argues that the leave sought by the First Respondent should not be granted and the objection to competency is incompetent because it did not comply with the mandatory provisions of Order 7 Rule 15 of the SCR.

15.	In Cocoa Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52; SC1221 it states:

“24. The purpose of an objection to competency is to save valuable court time which would otherwise be spent on the hearing of an appeal by an appellant who has not validly invoked a known appellate jurisdiction. The giving of a notice of objection to competency also serves to allow an appellant an opportunity soon after he has filed and served a notice of appeal to reflect on whether further to prosecute the appeal proceeding he has instituted and thus an opportunity to save the expense of what may be an incompetent appeal. In pursuit of these purposes, the rules deliberately prescribe a short period after the service of a notice of appeal within which notice of objection to competency must be given. Failure to give a notice within the prescribed time does not mean that the court cannot later dismiss an appeal for want of jurisdiction but a respondent party's failure to make objection within the prescribed time may have adverse costs consequences for that party of the court does later dismiss an appeal as incompetent.”

16.	In this case the First Respondent has waited to a late stage in the in matter to raise the objection to competency.

17.	The Court is obliged to ensure that proceedings are conducted in a manner that complies with the SCR while affirming the interest of justice for the parties.

18.	Under Section 185 of the Constitution the court has the power to ensure justice and prevent abuse.

19.	The First Respondent invoked Order 2 Division 1 Rule 1 (h) of the SCR and Section 185 of the Constitution to seek leave to file this Objection to competency out of time. 

20.	In Kuman v Digicel (PNG) Ltd [2017] PGSC 41; SC1638 at paragraph 39:

“The last of these observations does not mean that it is impossible to list for hearing an objection to competency along with the substantive appeal. Sometimes, and the present case is probably one, the issues in an appeal are so compressed that it is convenient for the appeal to be listed in conjunction with the objection so that, if it proves that there is no merit in the objection, the Court can proceed to determine the merits of the appeal without having so to do at a later date. Much valuable court time and expense to the parties can be saved in this way. Whether to seek such conjoint listing requires the making of a careful value judgement by the parties as to what is the most efficient way in which to deal with a particular appeal or purported appeal.”

21.	While it may be possible to list for hearing an objection to competency along with the substantive appeal, it must be extraordinary circumstances that are reasonably justifiable for this court to act in this way.

22.	The First Appellant suggests that the SCR do not provide for an extension past the fourteen days for an objection to competency.

23.	We are persuaded that the SCR anticipates that the objections to competency as a time limited mechanism which should be strictly adhered to unless there is some extenuating circumstance that supports the interest of justice which would lie in the favour of the applicant to vitiate this provision of the SCR.

24.	Therefore, while this court has heard the arguments on the objection of competency as a general proposition this hearing was buttressed by the interest of justice to facilitate the hearing.

25.	We accept that there are competency issues with the Appellants’ appeal as the Second Appellant has conceded on the two missing documents. 

26.	Under normal circumstances this would bring this Appeal to an end for failure to strictly comply with Order 10 Rule 3(b)(i) of the SCR.
27.	However, we are mindful of the fact that the First Respondent has not filed the objection to competency within time nor provided a reasonably justifiable excuse for same.

28.	For these reasons we will provide directions on how this matter will proceed.

29.	In our view this matter is an exception and follows Mulia (PNG) Limited v Shepherd & Ors [2023] PGSC 152; SC2504 which states:
“15.     A litigant should not be prematurely driven from the judgment seat, but in saying this, we are mindful that there will be cases where pleadings are so bad or convoluted or no clear ground is made out worthy of judicial consideration. In cases where an appeal contains grounds that clearly offend the Supreme Court Act and the Supreme Rules, such grounds be isolated and struck out so that only competent grounds proceed to a hearing. Whilst this approach would give an appearance of or have the effect of amending a Notice of Appeal, a Court should not be called upon to consider a matter where its jurisdiction is not properly invoked in respect of the offending grounds. After all, the onus is on the appellant to plead his grounds with relevance and particularity to be granted the reliefs he is seeking. Refer PNGBC v Jeff Tole (2002) SC694.”
30.	Following Manda v Yatala Ltd [2005] PGSC 22; SC795 where it was held: 
“Or. 7 r 14 of the Supreme Court Rules does not give a respondent, who has failed to file an objection within the prescribed period of fourteen days a right to raise questions of incompetence on the hearing of the appeal. Lowa –v- Akipe [1991] PNGLR 112; The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448 approved.”, we see no reason to depart from this. 
31.	We agree with the Appellants arguments that the First Respondent’s arguments cannot succeed.
CONCLUSION
32.	Therefore, all grounds of the objection to competency of the appeal are refused.

33.	The appeal will proceed in the interests of justice and subject to proper compliance with the SCR and will be referred to the Duty Judge. 

34.	Costs will follow the event.

ORDER

35.	By the majority:

1.	The First Respondent’s Objection to competency is refused.
2.	The Appellants shall, within 7 days of the date of these directions, file and serve a Supplementary Bundle of Documents annexing the two missing documents required under Order 10 Rule 3(b)(i) of the Supreme Court Rules, namely:
(a)	Copies of all documents that were before the Judge of the National Court appealed from; and
(b)	A certified copy of the order made by the National Court.
3.	The First Respondent shall have 14 days from service of the Supplementary Bundle to file and serve any Supplementary Response addressing issues arising from the annexed documents.
4.	The Appellants shall ensure that the Notice of Motion and the Supplementary Bundle are cross-referenced and indexed for ease of reference by the Court and the parties.
5.	The matter is referred to the Listings Judge to set the matter down for hearing of the appeal.
6.	Costs of the application shall be in the cause.
7.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
Ordered accordingly.
Lawyers for the first appellant: Dewe Lawyers
Lawyers for the second appellant: Ace Lawyers 
Lawyers for the first respondent: Simpson Lawyers