Respondents once treated a single defective ground of appeal as a reason to have the whole appeal thrown out. This 2012 decision ended that practice.
Coca Cola Amatil (PNG) Ltd and Joshua Yanda v Marshall Kennedy [2012] PGSC 52; SC1221
Supreme Court, Waigani — Lenalia, Kawi and Logan JJ, 31 August 2012. SCA 133 of 2011.
What happened
A Coca Cola Amatil vehicle driven by its employee Mr Yanda collided with Mr Kennedy’s passenger bus on the Okuk Highway in 2002. After a four-day trial the National Court found negligence and gave judgment for K86,510. The company and Mr Yanda appealed. Mr Kennedy filed a notice of objection to competency, contending among other things that particular grounds were defective or had no reasonable prospect of success.
What was argued
The respondent argued that grounds which failed to meet the Rules, or which raised matters the Court could not entertain, rendered the appeal incompetent. The appellants said that the grounds, taken together, plainly invoked the Court’s appellate jurisdiction on questions of law and mixed fact and law, and that complaints about individual grounds were matters for the hearing.
What the Court decided
Order 7 rule 14 of the Rules speaks of an objection to the competency of “the appeal”, not of the notice of appeal. An appeal is competent if, having regard to the notice by which it was initiated, the jurisdiction of the Supreme Court has been invoked. A concession that the notice contains at least one ground by which jurisdiction is validly invoked is necessarily a concession that the appeal is competent.
That remains so even though other grounds lack merit, including because they raise issues the Court has no jurisdiction to entertain. Those grounds may be dismissed, but because they lack merit, not because the appeal is incompetent. Whether an individual ground has no reasonable prospect of success is not a matter for an objection to competency. “The importance of this distinction ... cannot be over-emphasised.”
The objection was overruled with costs.
The Court added that the purpose of an objection is to save court time on appeals that have not validly invoked jurisdiction and to give the appellant an early chance to reconsider. Where an appeal will take no more than a day, hearing the objection together with the appeal often saves time and expense, and practitioners should raise that at the listing stage.
Did it make new law?
The Court drew on Waghi Savings and Loan Society v Bank of South Pacific (1980) SC185 and PNG Forest Authority v Securimax (2003) SC717, and on Australian appellate practice, but stated the appeal-versus-ground distinction more sharply than before. No National Court decision was involved. Together with Wilson v Kuburam (2016) SC1489, which confirmed that an objection must go to jurisdiction, it now defines the proper scope of a notice of objection.
Why it matters
For respondents: an objection is worth filing only where no ground validly invokes jurisdiction, or where a threshold defect such as time, want of leave, or want of standing affects the whole appeal. Objections that attack individual grounds have been dismissed as frivolous, with costs on a solicitor and client basis.
For appellants: one good ground keeps the appeal alive, but the defective grounds will still be struck out at the hearing. Yanda is not a reason to plead carelessly.
What it does not decide
Yanda does not lower the drafting standards for grounds of appeal set out in Lama v NDB Investments (2015) SC1423; a notice in which every ground fails those standards remains incompetent. Nor does it address objections to applications for leave to review, which have their own provisions in Order 5.
Recent cases applying it
- Kai v Exxon Mobil PNG Ltd [2026] PGSC 14; SC2856 — paragraph 22 of Yanda applied; an objection that did not go to jurisdiction was overruled.
- Cloudy Bay Sustainable Forestry Ltd v Pako F & C Holdings (PNG) Ltd [2022] PGSC 66; SC2260 — individual grounds dismissed as incompetent while the objection to the appeal as a whole failed, citing Yanda.
- Bank of Papua New Guinea v Ruh [2021] PGSC 50; SC2124 — a proper objection must show the Court has no jurisdiction; a frivolous objection attracted solicitor and client costs.
- Charlie v Paki [2020] PGSC 158; SC2123 — if one ground validly invokes jurisdiction the case is not one for an objection to competency; objection dismissed.
Sources
- Coca Cola Amatil (PNG) Ltd v Yanda [2012] PGSC 52; SC1221 (Lenalia, Kawi and Logan JJ, 31 August 2012)
- Supreme Court Rules 2012 — Order 7 rules 9, 10, 14 to 18
- Wilson v Kuburam [2016] PGSC 7; SC1489; Lama v NDB Investments Ltd [2015] PGSC 15; SC1423
- Kai v Exxon Mobil PNG Ltd [2026] PGSC 14; SC2856; Cloudy Bay Sustainable Forestry Ltd v Pako F & C Holdings (PNG) Ltd [2022] PGSC 66; SC2260; Bank of Papua New Guinea v Ruh [2021] PGSC 50; SC2124; Charlie v Paki [2020] PGSC 158; SC2123
Waghi Savings and Loan Society v Bank of South Pacific (1980) SC185 and PNG Forest Authority v Securimax (2003) SC717 are cited as they appear in the judgment and were not separately opened for this brief.
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