SC2710

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 6 OF 2024

TASION GROUP LIMITED
Appellant

-V-

STEAMSHIPS LIMITED
First Respondent

HON ANO PALA as Minister for Justice & Attorney-General on behalf of the Head of State acting on advice
Second Respondent

NATIONAL EXECUTIVE COUNCIL comprising of the Prime Minister as the Chairman of NEC and other members
Third Respondent

HON. BENNY ALLAN as Minister for Lands
Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

SCM NO. 7 OF 2024

HON ANO PALA as Minister for Justice & Attorney-General on behalf of the Head of State acting on advice
First Appellant

NATIONAL EXECUTIVE COUNCIL comprising of the Prime Minister as the Chairman of NEC and other members
Second Appellant

HON.BENNY ALLAN as Minister for Lands
Third Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

TASION GROUP LIMITED
Fifth Appellant

-V-

STEAMSHIPS LIMITED
Respondent

WAIGANI: KARIKO J, NUMAPO J, DOWA J
31 OCTOBER 2024; 13 MARCH 2025

PRACTICE AND PROCEDURE – appeal from a judgment on liability with damages to be assessed – whether interlocutory judgment requiring leave of the court to appeal - objection to competency of appeal on ground that no leave was sought to file the notice of appeal.

PRACTICE & PROCEDURE – appeal from judicial review – appeal by notice of motion – objection to competency – time for filing appeal – requirement to annex all documents that were before the trial judge – requirement to annex duly certified copy of the trial judge’s order – requirement to file affidavit in support

Two appeals were filed from a decision of the National Court hearing a judicial review. Objections to competency were raised alleging the first appeal did not comply with s 14(3)(b) of the Supreme Court Act and the requirements of O10 r3 of the Supreme Court Rules, and the appellants in second appeal had no right of appeal according to s 17 of the Supreme Court Act.  

Held

(1)	Judgment on liability with damages to be assessed is an interlocutory judgment and leave to appeal is required under s 14(3)(b), and as leave was not sought, the appeal was incompetent.

(2)	The mandatory requirements of O10 r3 relating to the notice of motion were not complied with, rendering the appeal incompetent: 

(i)	not all the documents that were before the National Court were annexed; and 
(ii)	a copy of the National Court order certified by the Judge’s Associate or the Registrar was not annexed; and
(iii)	there was no accompanying affidavit in support.

(3)	An appeal not filed within the 40 days period, or any extended time pursuant to s 17 of the Supreme Court Act is incompetent.

(4)	The objections to competency were upheld and the appeals were dismissed.

Case cited

Avia Aihi v The State [1981] PNGLR 81
Dr Arnold Kukari v Hon. Don Pomb Polye (2008) SC907
Felix Bakani v Rodney Daipo (2001) SC659
Island Helicopter Services Ltd v Sagati (2008) N3340
Kule Layo v Ano Pala (2024) SC2597  
Landu v Hitron Ltd (2024) SC2540
Larelake v Kavo (2008) N3563 
Madang Timbers Ltd v Kambori (2009) SC992
Marape v O’Neill (2016) SC1487
National Capital Limited v Loi Bakani (2014) SC1392
Nipo Investments Ltd v Nambawan Super Ltd (2017) SC1642
Paki v Motor Vehicle Insurance Ltd (2010) SC1015
Palaso v Elliot (2020) SC2030
PNG Power Ltd v Grant Hoffmeister (2024) SC2665
Sarea v Moutu (2019) SC1893
Steamships Limited v Pala (2023) N10651
Steven Punagi v Pacific Plantation Timber Ltd (2011) SC1153
Tjandranegara v TST 4 Mile Ltd (previously Patu No. 27 Ltd) (2025) SC2696
Vitolo v Mararea Land Group Inc (2024) SC2615

Counsel

A Mana for Tasion Group Limited
 R Uware for the State
C Zazeng for the Minister for Lands
E Andersen & S Supro for Steamships Limited

JUDGMENT

1.	KARIKO J: The Court heard arguments on objections to competency of two appeals filed against the decision of the National Court at Waigani given in judicial review proceedings OS (JR) No. 572 of 2017 on 22 December 2023 that found for Steamships Limited (Steamships) as plaintiff, granted several reliefs but adjourned for a hearing on assessment of damages (the Judgment). See Steamships Limited v Pala (2023) N10651.

2.	The first appeal, SCM No. 6 of 2024, was filed by Tasion Group Limited (TGL) who was the fifth defendant in the National Court proceedings, against their then co-defendants (the State) and Steamships.

3.	The other appeal, SCM No. 7 of 2024, was filed against Steamships by the State and names TGL as co-appellant.

BACKGROUND

4.	In proceedings OS (JR) No. 572 of 2017, Steamships challenged the grant by the Minister for Lands of a State Lease over Allotment 2, Section 387, Hohola, in favour of TGL alleging it was procured by fraud. 

5.	Unable to properly appeal the Judgment within the stipulated time-limit of 40 days under s 17 of the Supreme Court Act, which was due to lapse on 31 January 2024, TGL applied for extension of time to appeal. 

6.	The application, SC App No. 1 of 2024, named the State as co-applicants but the application was only moved for and on behalf of TGL. 

7.	The application was granted allowing an extension of 28 days from 31 January 2024 within which to appeal. 

8.	TGL filed its appeal SCM No. 6 of 2024 on 27 February 2024.

9.	After learning of and relying on the extension of time obtained by TGL, the State filed their appeal SCM No. 7 of 2024 on 29 February 2024. 

10.	Because the appeals arise from judicial review proceedings, they were commenced by notices of motion pursuant to O10 r1(a) of the Supreme Court Rules.

11.	In response to the appeals, Steamships filed objections attacking their competency.

GROUNDS OF OBJECTION

12.	The thrust of the objection to the appeal SCM No. 6 of 2024 is that the appeal does not comply with the mandatory requirements of the Supreme Court Act and the Supreme Court Rules, viz:

(1)	The Judgment was an interlocutory ruling, and therefore an appeal against it required leave of the Court under s 14(3)(b) of the Supreme Court Act which leave was not sought.

(2)	Contrary to O10 r3 of the Supreme Court Rules, the notice of motion constituting the appeal:

(a)	did not have annexed to it:

(i)	all the relevant documents which were before the trial Judge, or

(ii)	a properly certified copy of the judgment or order appealed, and

(b)	was not accompanied by an affidavit in support.

13.	The main grounds of objection to appeal SCM No. 7 of 2024 are that:

(1)	The State had no right of appeal as it failed to file its appeal with the requisite 40 days time-limit and neither did they apply for extension of time to appeal in accordance with s 17 of the Supreme Court Act.  

(2)	Even if the State was included in the orders which granted extension of time in SC App No. 1 of 2024, the appeal was filed out of time by one day. 

SUBMISSIONS

14.	TGL argued that the Judgment granted all relief sought by Steamships after a trial was conducted, disposing of the primary rights of the parties. The Judgment was therefore not an interlocutory ruling for which leave to appeal is required under s 14(3)(b) of the Supreme Court Act.

15.	Regarding the missing documents that ought to have been annexed, TGL justified its case by submitting that those documents were not relevant to deciding the issues on appeal, and in any case, they were later included in the review books and the respondent was therefore not prejudiced. 

16.	TGL further contended that the filing of a copy of the order signed by the trial Judge satisfied the requirement for a certified copy of the order under O10 r3(b)(ii).

17.	As to the lack of an affidavit in support, TGL argued the affidavit was not necessary as all the applicable facts for the appeal were contained in the documents annexed to the notice of appeal.

18.	The State submitted that the extension of time granted to TGL applied to them by virtue of being co-defendants in the National Court and being named as co-applicants in SC App No. 1 of 2024. They added that by their calculation, their notice of appeal was filed within the ordered time-limit.

19.	It should be noted that the Minister for Lands was separately represented before us. His counsel was not permitted to present separate submissions for failing to comply with Court directions, but he adopted the submissions advanced for the State.

CONSIDERATION – SCM NO. 6

20.	 The right of appeal from the National Court is given in s 4 of the Supreme Court Act. 

21.	Circumstances whether leave is required or not to appeal in relation to civil appeals are set out in s 14. According to s 14(3)(b), leave is required to appeal an interlocutory judgment except in certain situations (which do not apply in the present case).

22.	The question of whether a decision or judgment is interlocutory or final for purposes of s 14(3)(b) was settled by the full bench of the Supreme Court (Cannings J, Manuhu J, Gabi J, Hartshorn J, Yagi J) in Steven Punagi v Pacific Plantation Timber Ltd (2011) SC1153 where the Court held that a final decision or judgment is one which  “finally determines the matter in the National Court, it finally disposes of the rights of the disputing parties and it finally determines the issue between the parties.”. This “order approach” in answering the issue has been endorsed in many Supreme Court judgments including Kule Layo v Ano Pala (2024) SC2597 and PNG Power Ltd v Grant Hoffmeister (2024) SC2665, and very recently by a five-member Court in Tjandranegara v TST 4 Mile Ltd (previously Patu No. 27 Ltd) (2025) SC2696.

23.	The dispute in proceedings OS (JR) No. 572 of 2017 required the trial Judge to decide if the defendants were liable and if so whether the plaintiff was entitled to the reliefs sought. The first part of the dispute was resolved, and several reliefs were granted. However, the claim for damages was deferred to be determined by another hearing later. It was not the case as put by TGL that the National Court granted “all relief sought” by Steamships.  Clearly therefore, the Judgment did not finally determine the issues in the proceedings, meaning it was an interlocutory judgment for which leave ought to have been sought to appeal it. As the required leave was not sought, the appeal SCM No. 6 of 2024 is incompetent and must be dismissed.

24.	There are further reasons why the appeal is incompetent. 

25.	Orders by the National Court in its judicial review jurisdiction may be appealed by way of a notice of motion under O10 r1 of the Supreme Court Rules, and the requirements of the notice of motion are set out in O10 r3 which reads (with emphasis added):

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

26.	Order 10 r3 is in mandatory terms. There is a long line of case authorities that have affirmed the general proposition that non-compliance with the obligatory requirements renders the appeals incompetent: Felix Bakani v Rodney Daipo (2001) SC659; Dr Arnold Kukari v Hon. Don Pomb Polye (2008) SC907; National Capital Limited v Loi Bakani (2014) SC1392; Nipo Investments Ltd v Nambawan Super Ltd (2017) SC1642; Palaso v Elliot (2020) SC2030; and Vitolo v Mararea Land Group Inc (2024) SC2615.

27.	TGL conceded to not annexing fifteen of the documents that were before the appealed Judge, but argued their inclusion was not necessary as they were not relevant to deciding the issues on appeal. The submission is misguided. Order 10 r 3(b)(i) speaks of “all documents” without qualification. Cases where non-compliance with O10 r 3(b)(i) rendered appeals incompetent include Nipo Investments Ltd v Nambawan Super Ltd (supra); Palaso v Elliot (supra); and Landu v Hitron Ltd (2024) SC2540. 

28.	TGL also suggested that the copy of the Order of the National Court which was annexed to the notice of motion constituting the appeal satisfied the requirement under O10 r 3(b)(ii). Reference was made to the case of Madang Timbers Ltd v Kambori (2009) SC992. In that case, only a copy of the judgment was annexed to the notice of motion. The Court decided that the subsequent signing and entry by the Registrar of the orders which mirrored those contained in the judgment, satisfied the requirement for certification. 

29.	This liberal approach to defining the term “certified” in O10 r 3(b)(ii) has not been followed by most case authorities on this point. I was a member of the bench in Madang Timbers Ltd v Kambori (supra) and upon further and proper reflection, I have concluded that the decision was wrong for reasons best explained by the Supreme Court (Injia CJ, Gavara-Nanu J, Kawi J) in National Capital Limited v Loi Bakani (supra) at [9]:

“ Thus, when one reads r 3(b)(ii) in its proper context and ordinary meaning, it becomes very plain that first; the certification of a copy of the order of the trial court is to be done either by the Judge's Associate or the Registrar and second; such certified copy of the order of the trial court is to be annexed to the notice of motion before the notice of motion is filed. So, when the notice of motion is filed it should already have annexed to it a duly certified copy of the trial court's order. This requirement is mandatory. It follows that the certification of the trial court's order that is required under r 3(b)(ii) cannot be validly made after the notice of motion is filed. To do so would amount to a serious breach of r 3(b)(ii)”. 
	(Emphasis added)

30.	I also endorse the view expressed by the Supreme Court (Makail J, Murray J, Purdon-Sully J) recently in Vitolo v Mararea Land Group Inc (supra) that what is required by r 3(b)(ii) is a statement or acknowledgement by a Judge’s Associate or the Registrar that the order annexed to the notice of motion has been verified as the order of the trial judge, the subject of the appeal.

31.	That stated, I would respectfully suggest that the question of what constitutes certification is best addressed by the enactment of appropriate provision and form in the Supreme Court Rules. This is well overdue given the issue was first raised in Madang Timbers Ltd v Kambori (supra) some 15 years ago.

32.	In the present case, the annexed order is that signed under seal by the trial Judge. As O10 r 3(b)(ii) only authorizes certification to be done by the Judge’s Associate or the Registrar, the Rule has not been complied with, which is another reason why the appeal is incompetent. 

33.	Consistent with the general litigation practice which requires an affidavit in support to be filed with a notice of motion, Form 15 provides for an affidavit in support. 

34.	The explanation by TGL for not filing an affidavit in support is also misconceived. The requirement to conform with Form 15 is another obligatory term of O10 r3. In Sarea v Moutu (2019) SC1893, the Supreme Court stressed that an affidavit in support of the motion properly signed must be filed with the notice of motion. Failure to comply, leaves the appeal incompetent. 

CONSIDERATION – SCM NO. 7

35.	Regarding the second appeal, it is clear from the facts that the State has no right of appeal. There can be no dispute that it failed to appeal in accordance with s 17 of the Supreme Court Act. 

36.	SC App No. 1 of 2024 was an application filed and argued by TGL whose lawyers were not instructed by the Attorney-General to include the State as co-applicants. It is the Attorney-General who is charged by s 7(i) of the Attorney-General Act with the duty, function and responsibility to instruct lawyers to appear for the State in any matter: Larelake v Kavo (2008) N3563 and Marape v O’Neill (2016) SC1487.

37.	An appeal not filed within the 40 days period, or any extended time is incompetent, and the Supreme Court does not have jurisdiction to entertain it: Avia Aihi v The State [1981] PNGLR 81. 

COSTS

38.	Steamships pleaded for costs on an indemnity basis. 

39.	The Court may order such costs in circumstances where the conduct of a lawyer or a party is so improper, unreasonable or blameworthy, and has caused the other party to incur unnecessary costs: Paki v Motor Vehicle Insurance Ltd (2010) SC1015.
 
40.	The applicant for such costs is obliged to forewarn the lawyer or party against whom the costs are sought, of the intention to make the application and provide proper evidence detailing the conduct complained of: Island Helicopter Services Ltd v Sagati (2008) N3340.
 
41.	The appellants were forewarned through their lawyers. It was put to them that the appeals were incompetent for the reasons later raised formally in court filings. The appellants nevertheless persisted with the appeals. To my mind, the grounds of objection to competency have been easily established, while the arguments opposing the objections were misconceived and unmeritorious. In these circumstances, the conduct of the appellants has been blameworthy and unreasonable and has caused Steamships to incur legal costs unnecessarily. 

CONCLUSION

42.	In the result, I dismiss both appeals for being incompetent, with costs ordered in favour of Steamships on an indemnity basis.

43.	NUMAPO J: I have read the draft judgments of Kariko J and Dowa J, agree with them, and I have nothing further to add.

44.	DOWA J: I have had the benefit of reading the judgment of my brother, Kariko J, and agree with the findings and conclusion reached. I also agree with his Honour’s suggestion that appropriate provision be made in the Supreme Court Rules to address the issue of what constitutes certification under Order 10 Rule 3 (b) (ii). I would also suggest that the requirement under Rule 3 (b) (i) to annex “copies of all documents” should also be given some attention with appropriate amendment to the Rules. I have observed that compliance with the requirements of Rule 3 (b) (i) have become cumbersome for some litigants, having to annex to the notice of motion all documents used in the lower Court, some or most of which may not be relevant to the issues raised in the appeal and are often voluminous. 

45.	BY THE COURT: The Order of the Court is:

(1)	The objections to competency of appeals SCM No. 6 of 2024 and SCM No. 7 of 2024 are upheld.

(2)	Both appeals are dismissed for being incompetent.

(3)	Tasion Group Limited shall pay the costs of Steamships Limited of and incidental to appeal SCM No. 6 of 2024 on an indemnity basis, to be taxed if not agreed.

(4)	The State shall pay the costs of Steamships Limited of and incidental to appeal SCM No. 7 of 2024 on an indemnity basis, to be taxed if not agreed.

(5)	The case is remitted to the National Court for the pending hearing on assessment of damages in proceedings OS (JR) No. 572 of 2017.

(6)	Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.
________________________________________________________________
Lawyers for Tasion Group Limited: Allan Mana Lawyers
Lawyer for the State: Solicitor General 
Lawyers for the Minister for Lands: Nova Nexus Legal
Lawyers for Steamships Limited: Dentons PNG