Kai v Exxon Mobil PNG Ltd [2026] PGSC 14; SC2856 (23 February 2026)

SC2856

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 87 of 2025

BETWEEN:

DENNIS KAI
First Appellant

AND:

ECO ENGINEERING LIMITED
Second Appellant

AND:

EXXON MOBIL PNG LIMITED
Respondent

WAIGANI: SALIKA CJ, LOGAN J, MIVIRI J
23 FEBRUARY 2026

PRACTICE AND PROCEDURE – where the wording of a Notice of Appeal differed from the wording provided for in Form 8 – where the respondents filed an Objection to Competency on this ground – whether the difference in the wording in the Notice of Appeal was material – Objection to Competency overruled.

Facts

1. A Notice of Appeal was filed by the appellants on 4^th July 2025. The Notice of Appeal indicated that the appellants appeal from “the decision of” the primary judge, rather than “the whole (or if part, specify part) of the judgment”, as specified in Form 8.
   

Held

1. The difference in the wording between the Notice of Appeal and Form 8 was immaterial.
2. The Notice of Appeal was deemed nunc pro tunc to have complied sufficiently with the rules of court, and the Objection to Competency was overruled.

Cases cited

Cocoa Cola Amatil (PNG) Limited v Joshua Yanda, [2012] PGSC 52; SC1221
Nandali v Curtain Brothers Limited [2012] PGSC 55; SC1483
Yambaki Surveys Limited v Nambawan Super Limited [2020] SC1901

Counsel

Mr J Biar, for the appellants
Mr M Makap with J Murray, for the respondent

1. SALIKA CJ: I invite Logan J to deliver his judgement first.
   
2. LOGAN J: On 4 July 2025, what at least purported to be an appeal by the appellants, Dennis Kai, and Eco Care Engineering Limited against a judgment given in the National Court on 26 May 2025 was filed in this court’s registry at Waigani. That notice of appeal appealed against “the decision of” the primary judge as given on 26 May 2025. The notice specified five grounds of appeal, (a) through to and including (e).
3. There is no suggestion by the respondent, Exxon Mobil PNG Limited, that any of these grounds, let alone each of them, raise purely questions of fact such that leave to appeal would have been necessary, nor is there any suggestion by the respondent that the judgment which was one refusing leave to review out of time a decision of the taxing officer of 7 November 2024, was an interlocutory judgment which for that reason would have required a grant of leave to appeal.
4. For reasons which the appellants thought good, they sought to amend the notice of appeal as filed. An order was granted giving 14 days within which to amend the notice of appeal. The appellants’ counsel misheard the oral pronouncement of the order and instead of hearing 14 days, mistakenly heard 40 days. In turn though, the appellants’ lawyers did not as they should have, read the formal order of the court which in fact specified, as it had been pronounced orally, 14 days within which to amend.
5. The respondent noting that the amended notice of appeal was not filed within time saw that failure as one which admitted of an objection to competency. Hence, we have this afternoon heard an objection based on the failure to amend the notice of appeal within the time permitted. In turn, the appellants’ response is that the objection is itself incompetent, because it does not go to jurisdiction.
6. In Cocoa Cola Amatil (PNG) Limited v Joshua Yanda, [2012] PGSC 52; SC1221 at [22], the court observed:

[22] ... Finally, whether or not an individual ground has no reasonable prospect of success in circumstances where the notice does otherwise validly invoke the court's jurisdiction is not a matter for an objection as to competency. ...

7. Also in 2012 in Nandali v Curtain Brothers Limited [2012] PGSC 55; SC1483, the court stated at [12]:

[12] ... Unless the effect of a notice of objection to competency is that if upheld, this court has no jurisdiction at all to entertain the appeal as instituted by the notice of appeal, the objection must be dismissed. ...

8. In Yambaki Surveys Limited v Nambawan Super Limited [2020] SC1901, the court discussed divergent approaches on objections to competency which had emerged over time and the general principles applicable. The court concluded in that case that the objection must go to the competency of the appeal, not just to the grounds of appeal. See especially paragraphs [18], [19] and [24].
9. It is not necessary in this case to revisit the discussion found in the cases cited, including the discussion of divergent approaches found in Yambaki, only to recognise that this court did have jurisdiction to hear an appeal against the order refusing leave to review, and further to recognise that it is not a feature of each of the grounds of appeal that they only raise questions of fact, such that a prior grant of leave to appeal was necessary.
10. At most in this case, there is a slight and even trifling difference of form as between the wording of the matters of appeal as filed and Form 8 which is the specified form in the rules in respect of a Notice of Appeal. Paragraph (1) of the specified form refers to, “The appellant appeals from the whole (or if part, specify part) of the judgment of.” As can be seen, the difference in the wording of Form 8 when compared with the notice as originally filed is not one of substance.
11. The justice of this case in my view requires only an order which deems nunc pro tunc on and from the date of filing the notice of appeal as filed to be in sufficient compliance with the rules of court. Because the objection does not go to jurisdiction, it is truly itself incompetent. Therefore, the additional order that I would make is that the objection to competency be overruled.
12. The objection having failed, I see no reason why costs should not follow the event of the overruling of the objection. I would therefore for these reasons make orders accordingly.
13. SALIKA CJ: I agree with the reasons delivered by Logan J and with the orders his Honour proposes.
14. MIVIRI J: I likewise agree.
15. BY THE COURT: There will be orders accordingly.

Orders

1. The Notice of Appeal as filed on 4^th July 2025 be deemed nunc pro tunc on and from the date of its filing sufficiently to comply with the rules of court.
2. The Objection to Competency as filed on 24^th July 2025 be overruled.
3. The respondent pay the appellants’ costs of and incidental to the objection, to be taxed if not agreed.

____________________________________________________________________________
Lawyers for appellants: Holingu Lawyers
Lawyers for respondent: Allens