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Yuwi v Popuna [2024] PGNC 175; N10837 (7 June 2024)

N10837


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 550 OF 2018


BETWEEN:
LADY MARGARET YUWI
Plaintiff


AND:
JACOB POPUNA as the Public Curator & Official Trustee
First Defendant


AND:
PUBLIC CURATOR OF PAPUA NEW GUINEA
Second Defendant


AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Purdon-Sully J
2024: 16th February, 7th June


JUDICIAL REVIEW – Practice & Procedure – application for judicial review of decision of Public Curator re administration of deceased estate – whether decision amenable to judicial review – failure to exhaust statutory review procedure – abuse of process


Cases Cited:
Papua New Guinean Cases


Angui v Wagun [2011] PGNC 305; N4194
Young Wadau v PNG Harbours Board [1995] PNGLR 357
Richard Pagen v Ila Geno [2008] N4031
Gabi v Nate [2006] PGNC 178; N4020
Koim v O’Neil [2016] N6558
Kwayok v Singomat [2017] N7079
Tiensten v Koim [2011] N5949
Independent State of Papua New Guinea v Kapal [1987] PNGLR 417
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Innovest Ltd. v Pruaitch [2014] N5949
Paul v Kispe [2001] PGNC 132; N2085
Nari v Public Trustee [2023] PGNC 261; N10421
Kundalin v Ipo [2023] PGSC 30; SC2377
Kamuta v Sode [2006] N3067
Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111;
N2400


Overseas Cases


R Barnet London Borough Council; Ex Parte Nilish Shah (1983) 2 AC 309
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Anor (1983) NSWLR 378
Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1 KB 223
Council of Civil Unions v Minister of Civil Service [1985] AC 374


Legislation


National Court Rules, Order 16 Rule 5
Wills, Probate & Administration Act 1996, ss 35D, 35E, 35 K, 81- 88
Public Curator’s Act, ss 10, 32-34
Constitution, ss 59(2), 155(4)


Counsel


J Apo, for the Plaintiff
F Aki, for the First and Second Defendants


DECISION

7th June 2024


  1. PURDON-SULLY J: This is a substantive application for judicial review pursuant to Order 16 Rule 5 of the National Court Rules (NCR) made pursuant to a Notice of Motion filed 3 December 2019 pursuant to leave to apply for judicial review granted on 28 November 2019 entered on 4 December 2019.
  2. The plaintiff seeks the following orders:
    1. A Declaration that the decision of the first and second defendants on 31 July 2018 in relation to a distribution of the intestate property described as Section 6, Allotment 3, Ward’s Rd, Hohola, NCD, Volume 10 Folio 2294 (Hohola property) is ultra vires for breaches of Sections 35D, 35E and 35 K of the Wills, Probate & Administration Act 1996 (WPAA).
    2. An order in the Nature of Certiorari to bring the decision of the Public Curator dated 31 July 2018 before the Court and quashed.
    1. Relief 3 of the Notice of Motion was abandoned.
    1. Costs
    2. Any other orders that the Court determines necessary and just.
    3. Orders be abridged.
  3. The first and second defendants seek dismissal of the application.
  4. The issues for determination are as follow:
    1. whether the proceeding should be dismissed for being an abuse of process; and if not
    2. whether the decision by the first and second defendants to sell the Hohola property and divide it equally between the plaintiff and Mr Peter Matiabe Yuwi, the deceased’s eldest son (the eldest son), is ultra vires by reason of being in breach of ss 35D, 35E and 35K of the WPAA, and/or unfairness under the Wednesbury principle and/or in breach of natural justice (no right to be heard).[1]

MATERIAL RELIED UPON


  1. The court has before it the Review Book filed 27 April 2023 together with the written submissions of the plaintiff filed 29 November 2023 and 8 December 2023 and the written submissions filed on behalf of the first and second defendants on 1 December 2023.
  2. With respect to the additional written submissions of the plaintiff filed 8 December 2023, the plaintiff was afforded an opportunity to provide further written submissions in response to the decision of Angui v Wagun [2011] PGNC 305; N4194 (Angui) relied upon by Counsel for the first and second defendants at the conclusion of the trial on 6 December 2023. Whilst addressing Angui the plaintiff sought in those additional written submissions to rely upon two documents marked Annexures ‘B’ and ‘C’ to the submissions. Neither document was in proper admissible form or authenticated according to the law or rules of evidence. Neither was in evidence at trial. No leave of the court nor the consent of the defendants was sought to introduce that material into evidence. The court intends to rely upon the following documents only:
    1. the evidence relied upon at trial in the form of the Review Book filed 27 April 2023 and any exhibits;
    2. the written submissions of the plaintiff filed 29 November 2023;
    1. the written submissions of the first and second defendants filed 1 December 2023;
    1. that portion of the plaintiff’s additional submissions filed 8 December 2023 that respond to Angui in compliance with the order of 6 December 2023;
    2. the oral submissions of the parties at the conclusion of the trial on 6 December 2023 and further oral submissions of 6 February 2024.
  3. In addressing the issues identified it is necessary to detail the background to this dispute together with the history of litigation. This has not been an easy task the failure of the parties in preparing their Review Book to provide copied material that was complete, clear and readable (that is, not blacked out, without written commentary, lines or general blurring).

BACKGROUND


  1. The plaintiff is the third wife in a polygamous marriage to Sir Matiabe Yuwi who died intestate on 6 May 2014. Sir Matiabe had seven (7) children (one daughter and 6 sons). They are Martha, from his first wife whom he divorced, Peter, Paul, Robert, Howard (deceased) and Michael from the second wife and Newman from his third marriage to the plaintiff.
  2. On the evidence the deceased owned a number of properties prior to his demise which, save for the eldest son, were transferred to various family members, leaving at the time of his death real property at Hoholo occupied by the deceased and the plaintiff and a further property in Tari, Hela province.
  3. Ten years following Sir Matiabe’s death his estate is yet to be finalised as a result of a dispute between the plaintiff and the defendants with respect to who should receive the real property at Hohola, it being asserted by the plaintiff and the eldest son that the deceased wanted them to each receive the property. In this regard the eldest son is supported by various siblings and other family members.
  4. There is no evidence that before his death that the deceased took steps to transfer the whole or any part of his interest in the Hohola property to his third wife or eldest son or if it was his intention that that happen on his death, to do so by expression of testamentary intention, the deceased dying intestate.
  5. Ultimately the dispute involved the Public Curator and Official Trustee as administrator of the estate pursuant to Letters of Administration granted by this court on 24 November 2017 in proceedings WPA No 3 of 2017. By order of 15 December 2017 the first defendant as Administrator was required to furnish his report of the administration by 13 June 2018, the matter otherwise concluded. Only two real properties were identified as being the subject of administration.
  6. The plaintiff has been critical of the role of the first defendant and second defendant in administering the estate, asserting inter alia a failure to meet statutory obligations, acting arbitrarily and with bias, acting unlawfully and fraudulently and acting in breach of the custom of the Huli people. It is her case that the home belongs to her according to custom.
  7. It is contended on behalf of the defendants that the plaintiff has engaged in delay and frustration of a lawful administration process and that she had otherwise abused the processes of the court with a multiplicity of filings.
  8. The plaintiff and the deceased married in 1974 in accordance with the rights and customs of the Huli people of Tari Pori District of Hela Province. The deceased became the registered owner of the Hohola property on 22 August 2003 and the deceased and the plaintiff lived there together.
  9. Following the completion of a court ordered inventory and having determined that the estate to be administered comprised the Hohola and Tari properties, by letter dated 4 December 2017 the plaintiff informed the first defendant of her opposition to the disposal of the Hohola property based on custom, financial contribution, long time residence and the opportunities afforded to the deceased’s other wives and children.
  10. By letter dated 14 June 2018 to her lawyer the plaintiff was invited by the first defendant to attend a beneficiary meeting with concerned parties on 22 June 2018, the purpose of the meeting stated to be to “come in one accord and reason together for the betterment of family wellbeing”. The plaintiff did not attend the meeting.
  11. By further letter dated 5 July 2018 she was informed by the first defendant that the beneficiary meeting was deferred to 20 July 2018. The plaintiff did not attend this meeting.
  12. By letter dated 31 July 2018, the first defendant on behalf of the second defendant informed all beneficiaries, creditors and interested parties of its decision to sell the Hohola property and equally distribute the net proceeds between the plaintiff and the eldest son who were the only disputing parties. The basis of that decision was inter alia:
    1. Lack of evidentiary support by the plaintiff of her asserted financial contribution to the property.
    2. The benefits received by the plaintiff from the real property in Tari, Hela Province such that “she cannot claim two matrimonial homes at the cost of depriving the beneficial interest of others”
    1. The benefits received by the plaintiff and her son Mr Newman Yuwi from other properties of the deceased that they had disposed of at the expense of other beneficiaries.
    1. The best option was to sell the property and divide the proceeds equally between the plaintiff and eldest son.
  13. In the letter the first defendant informed the beneficiaries and others that they were at liberty to address the matter through the courts.
  14. There is no evidence that other potential beneficiaries sought an interest in the Hohola property or disputed the decision of defendants to sell the property and divide it as proposed.
  15. On 10 October 2018 the second defendant issued an eviction notice. The plaintiff failed to comply. On 9 July 2019 the plaintiff’s lawyers wrote to the police requesting, in so many words, that they do not act upon the eviction notice pending a determination by the court.
  16. On 31 October 2018 the plaintiff was requested by the first defendant, as the lawful administrator of the estate, to provide the original title deed to the Hoholo property. She failed to do so.
  17. By Notice of Disclosure to the plaintiff issued by the first defendant dated 1 November 2018 the plaintiff was requested to deliver up the title deeds to the Hohola and Tari properties. The plaintiff failed to do so. At [11] of her affidavit filed 5 December 2019 the plaintiff deposes to being in possession of the title deeds and not surrendering same pending a final court decision.
  18. On 21 March 2019, the first defendant on behalf of the second defendant sought and obtained a replacement title deed from the Registrar of Titles. The plaintiff became aware of this and lodged a caveat over the property on 15 November 2019.
  19. By letter dated 22 November 2019 the plaintiff, through her lawyer, then sought that the National Fraud and Anti-Corruption Directorate issue a summons to the Registrar of Titles to cancel what she asserted was a fabricated replacement document, the plaintiff asserting that the first defendant had misrepresented to the Registrar of Titles that the title had been misplaced or destroyed. The plaintiff’s led no evidence at trial that the National Fraud and Anti-Corruption Directorate complied with her request to charge or find that the first defendant had engaged in fraudulent conduct.

COURT PROCEEDINGS


  1. Turning now to the court proceedings, the history appears largely unchallenged save as identified. The first defendant commenced proceedings on 24 November 2017 in proceedings WPA No 3 of 2017 seeking a grant of Letters of Administration (LoA).
  2. Letters of Administration of the deceased’s estate was granted by the National Court per National Court Orders on 24 November 2017, formally entered on 4 December 2017, the order providing that the first defendant was to administer the estate paying the just debts of the deceased and to distribute the residue according to law.
  3. The proceedings were concluded by National Court orders of Kandakasi DCJ entered on 19 December 2017 in the following terms:
    1. Pursuant to the Agreement of the parties and in any event in the light of the parties not being able to agree on an Amended Letters of Administration, the Court confirms the Orders that were made on the 24 November 2017 and formally entered on the 4 December 2017 except only for term 5 which is now varied to read, the Administration of the Deceased Estate shall proceed on the basis of the inventory of the Deceased Estate per the affidavit of Jacob Popuna sworn on 6 February 2017 and filed on 8 February 2017.
    2. For clarity, this matter is concluded by the forgoing orders except on for the Deceased Estate to furnish his report the Administration of the estate with the first report being to their Court on 13 June 2018.

3. Abridgment of time for entry.


(Underlining for discussion purposes)


  1. Following communication to her of the decision of 31 July 2018, on 15 October 2018 the plaintiff filed a Writ of Summons WS No 1258 of 2018 inter alia asserting improper conduct on the part of the first defendant and seeking:
    1. A declaration under s 35D of the WPAA that the plaintiff had a full interest in custom over the Hohola property or alternatively that the plaintiff was the only creditor to the extent of the full value of the property.
    2. That the first and second defendants transfer the property to her.
    1. An interim injunction that the second defendant obtain full particulars of custom pursuant to s35E of the WPAA from the Tari Pori District Authority on ‘the development of property in cases of intestate in polygamous setting in Hela Province.’
    1. Transfer of the property to her.
  2. The defendants were the eldest son and the first and second defendants in these proceedings.
  3. On 15 October 2018 the plaintiff filed a Notice of Motion in WS 1258 of 2018, seeking dispensation of service and restraints against eviction and the disposition or dealing with the Hohola property.
  4. The matter was dismissed by the court on 24 October 2018 with costs to the defendants. The order included an order that the plaintiff was at liberty to file fresh documents seeking the same relief on sufficient notice to the parties of not less than 3 days. There is a dispute as to whether the entire proceedings were dismissed or only the Notice of Motion filed on behalf of the plaintiff.
  5. On 31 October 2018 the plaintiff filed a further Writ of Summons WS No 1364 of 2018 on the same grounds as that sought in WS 1258 of 2018, together with a Notice of Motion in similar terms as that earlier filed seeking urgent interlocutory relief to respond to the eviction notice.
  6. By order of 8 November 2018 the application was deemed without merit and dismissed with costs against the plaintiff.
  7. On 9 November 2018, the plaintiff filed an application for leave to appeal (SCA No 177 of 2018) the ‘interim judgment/ruling’ made on 8 November 2018.
  8. On 7 December 2018 on the hearing of the leave application in SCA No 177 of 2018 the Chief Justice made the following orders:
    1. The Second and Third Defendants are restrained from evicting or taking out eviction order against the appellant on the Hohola property;
    2. The Public Curator to obtain all affidavits from all the Children of the deceased as their position on the Hohola property and the extent of the interest;
    1. Public Curator to bring all the disputing parties and start negotiating process for the settlement of the Hohola property and Tari properties
    1. The Public Curator conduct into custom in the Hela area on the distribution on estate in case of intestacy in the polygamous setting.
    2. Parties to return on 8 February 2019 at 9.30 am.
  9. Following the making of that order and on 4 February 2019, the first defendant obtained and filed affidavits from Martha Yuwi, the only daughter and eldest child of the deceased, Paul Yuwi, a son from his second marriage, Madlin Yuwi his second wife and George Yuwi, the deceased’s brother. None sought an interest in the Hohola property. None were opposed to the decision of the first defendant to sell the Hoholo property. Each deposed to the transfers of property made by the deceased to his children during his lifetime and the assets and financial resources retained by the plaintiff and her son. The plaintiff did not challenge that evidence.
  10. Following the filing of those affidavits, and by order of 8 March 2019 the plaintiff withdrew her application for leave to appeal in SCA No 177 of 2018. The plaintiff was ordered to pay the costs of the eldest son and the defendants.
  11. The plaintiff then filed proceedings under WS No 1364 of 2018 seeking restraints from the defendants selling the Hoholo property. By order of 14 March 2019 (entered on 24 April 2019), the matter was dismissed as an abuse of process with the plaintiff’s lawyer ordered to pay the costs of dismissal personally.
  12. On 15 May 2019 the plaintiff again sought orders by Notice of Motion, this time in proceedings WPA No 3 of 2017. The orders sought were as follows:
    1. That the orders of Kandakasi J (as His Honour was then) given on 24 October 2018 be set aside pursuant to Order 12 Rule 8(4) of the National Court Rules
    2. Orders or appropriate directions be issued on the basis of complaint by affidavit filed by Newman Yuwi on 24 March 2019 pursuant to Section 32 and Section 34 of the Public Curator’s Act
    1. Alternatively the Plaintiff be directed to file Writ of Summons in terms of draft which are enclosed in the Additional Affidavit of Jospeh Rara filed 29 Aopril 2019 pursuant to Section 32(2) of the Public (sic)
    1. An interim injunction that the eviction notice issued on the 10 October 2018 by the Public Curator for Lady Margaret Yuwi and her Children to vacate section 3 Allotment 6 Hohola, Wards Road (herein “property”) be stayed pending final determination of the Complaint relating to the decision of the Public Curator 31 July 2018 to have the property shared between Margaret Yuwi and Peter Yuwi pursuant to Order 12 Rule 1 and Order 14 Rule 10(1) of the National Court Rules.
  13. Whilst the application was listed for hearing on 6 June 2019, it appears to be unchallenged that the Notice of Motion was never moved, the proceedings WPA No 3 of 2017 having been concluded on 19 December 2017, as the terms of Order 2, earlier underlined, make clear.
  14. It is against that background that on 13 August 2019, the plaintiff commenced the current proceedings OS (JR) No 550 of 2019 seeking leave for judicial review of the decision of the 31 July 2018.
  15. By court order of 28 November 2019, entered on 4 December 2019, leave for judicial review was granted, the matter listed for directions on 10 February 2020, the plaintiff at liberty to apply before that date for stay or injunctions.
  16. On 15 December 2019 by Notice of Motion the first and second defendants sought the dismissal of judicial review proceedings pursuant to Order 16 Rule 13(2)(a)(b)(i) of the NCR for want of prosecution and abuse of process.
  17. On 2 July 2020 a Judge of this court upheld the motion and dismissed the proceedings with indemnity costs. The plaintiff appealed that order. On 29 March 2022 the appeal was upheld, the decision of 2 July 2020 quashed and the judicial review proceedings reinstated.
  18. The matter proceeded to trial on 6 December 2023. As earlier noted an order was made for the taking of further written submissions on a point of law. The matter was relisted for hearing on 19 December 2023. There was no appearance for the parties. It was adjourned to 15 February 2024 with only Counsel for the plaintiff in attendance. The matter was again adjourned to 16 February 2024, both Counsel in attendance and both affording the court a satisfactory reason for earlier non-attendance. Further reply submissions were made by Counsel for the first and second defendants.

ABUSE OF PROCESS


  1. In summary, it is submitted on behalf of the first and second defendants that the proceedings should be dismissed as an abuse of process on two bases:
    1. Firstly, there was no decision made by the Public Curator amenable to judicial review, the first defendant contemplating the sale of the property and the division of the proceeds in a particular manner with no transfer of title taking place, the decision of Angui on point.
    2. Secondly, the plaintiff failed to avail herself of sections 32 and 34 of Public Curator’s Act (PCA), an avenue of statutory redress for aggrieved persons to seek redress or bring their grievance against decisions before the National Court, her failure to do so fatal to her application for review. It is submitted that it is not belated to raise this issue at the substantive review as the granting of leave for judicial review does not prevent such consideration on the authorities, the decision of Angui point.
    1. Thirdly, the plaintiff filing a multiplicity of proceedings represents an abuse of process the plaintiff having initiated four (4) separate proceedings seeking the same relief, against the same parties, raising the same legal issues.
  2. In summary, it is submitted on behalf of the plaintiff:
    1. Section 34 of the PCA anticipates a scenario where there is no final decision and a complainant may take preemptive action in tasking the Public Curator from detouring from the proper and lawful administration of the estate. It is an anticipatory or preemptive provision to address complaints where the Public Curator is likely to detour from proper ongoing management. In this case a final decision had been made with no further administration, one on which judicial review is amenable as the decision was ultra vires the provisions of the WPAA.
    2. The decision of Angui is distinguishable on its facts.
    1. There are no other existing proceedings that amount to a multiplicity of proceedings.
  3. I have summarised the parties’ submissions, their detailed submissions more fully outlined orally and in writing, Save for the substantial points raised I do not propose to respond to each and every submission made, however in reaching a decision on the issues I am required to determine, I have considered all submissions (R Barnet London Borough Council; Ex Parte Nilish Shah (1983) 2 AC 309 per Lord Scarman at p 350 cited with approval in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd & Anor (1983) NSWLR 378 per Mahony J A at [385-386]).

CONSIDERATION


  1. The procedure of judicial review provided by Order 16 of the NCR is concerned with reviews by the National Court of decisions of an administrative or judicial character. As the learned trial Judge in Angui said at [19], there has to be a decision before the court's jurisdiction is invoked – a formal determination of a question – and it is necessary that it be a decision having the trappings of formality and officialdom and of a public character, such a determination of a question pursuant to a provision of an Act of Parliament (Young Wadau v PNG Harbours Board [1995] PNGLR 357, Richard Pagen v Ila Geno [2008] N4031).
  2. It is submitted on behalf of the first and second defendant that there is no decision to be judicially reviewed. The court does not accept that submission. The written communication from the first defendant to the beneficiaries dated 31 July 2018 was a substantive administrative decision by a body, here the Public Curator, exercising public functions in a public law matter. That letter, being Annexure ‘C’ to the affidavit of the first defendant filed 18 December 2019, is titled “DECISION”. The first paragraph reads as follows:

Ref: Deceased Estate of Late Sir Matiabe Yuwi: WPA 3 of 2018


I, as the Public Curator and Official Trustee of Papua New Guinea by virtue of the powers confirmed on me under the Wills Probate and Administration Act and the Public Curators Act, I am empowered under the enabling legislations aforementioned to deal with both estate and intestate matters and to make administrative decision regarding deceased estates, with such authority I now hereby take a stance that properties in Allotment 6 Section 3, Hohola NCD and Allotment 2 Section 5 Tari, Hela Province to be administered as follows:

  1. Allotment 6 Section 3, Hohola NCD is proposed to be sold and the proceeds to be distributed amongst Mr Peter Yuwi and Margret (sic) Yuwi;
  2. Allotment 2 Section 5 Tari, Hela Province is currently occupied by the widow Margret (sic) and regards it as her matrimonial home as such she be given that property.
  3. On page 2 of the letter, under the heading, ‘Reasons for the Decision’, the first defendant went on to explain his reasoning for the decision he had made, concluding in the penultimate as follows:

Thus, apparently with the forgoing views, the Public Curator as the lawful administrator of the Deceased Estate of Sir Matiabe Yuwi thereby, affirms that the property, Allotment 6 Section 3, Hohola NCD be sold and the proceeds be shared by Peter Yuwi and Margret (sic) Yuwi and Allotment 2 Section 5 Tari, Hela Province be placed under Margret (sic) Yuwi as her matrimonial home.


[highlighting as in original document]


  1. The facts in the present case differ in an important respect to that in Angui. In Angui the Public Curator made a written decision in 2017 distributing the estate in three equal shares to the deceased’s third wife and to the plaintiffs, the deceased’s two daughters from his first marriage. However, the Public Curator later reconsidered his decision because he had been misled, and in what the trial Judge found to be a critical piece of evidence, he wrote a letter to the statutory regulator OPIC providing his altered view on the matter which conveyed the decision of the Public Curator, and which was the subject of the judicial review proceedings before him. The court found that notwithstanding the National Court granting leave for judicial review, there was nothing to review as the Public Curator's letter to OPIC was not evidence of a decision. All that the Public Curator did by sending the letter was to request that OPIC lift a suspension on a block of land, as he considered that the suspension was hampering progress on resolution of the estate dispute. He also indicated that he was proposing to amend his 2007 decision and gave the reasons for this intended course of action. However, the learned judge found that the 2009 letter, asserted to be the decision the subject of review, did not on its terms, convey a decision. The finding that there was no decision amenable to judicial review, was one of two reasons why the plaintiffs' application for judicial review in Angui failed.
  2. In the present case, the Public Curator made a decision. He then communicated his decision and his reasons for it to the plaintiff as one of the potential beneficiaries, creditors and interested parties. He concluded by advising that if any beneficiary, creditor or interested party had an issue with that decision they had a right to challenge it in court.
  3. Whilst the court finds that a decision was made by the Public Curator and it is one prima facie amenable to judicial review, the right to judicial review is not an absolute one. It is at the discretion of the National Court. An applicant for judicial review must first seek and obtain the leave of the court. There are requirements for leave. One of those requirements is the exhaustion of any review remedy available to the plaintiff. While the plaintiff in this case was found by the learned Judge who heard the application for leave to have met the requirements for leave, a leave application is not a fulsome hearing. The application and the grant of orders for leave normally proceed ex-parte. The authorities in this jurisdiction have made clear that issues of leave remain alive notwithstanding the grant of leave and subsist until the final determination of the substantive judicial review (Gabi v Nate [2006] PGNC 178; N4020 at [7]); Koim v O’Neil [2016] N6558 at [155]; Kwayok v Singomat [2017] N7079).
  4. In Angui, Cannings J said at [25]:

The fact that they were granted leave does not prevent the court, on the hearing of the substantive application for judicial review, dismissing the application for reasons that the court thinks would have justified refusal of leave. At the hearing of an application for judicial review it is open to the court to determine the application by addressing issues that were not fully considered at the hearing of the application for leave (NTN v PTC [1987] PNGLR 70, Geno v The State [1993] PNGLR 220). This is an ordinary and natural incident of the leave hearing, which is a filtering process intended to prevent obviously unmeritorious judicial review applications taking up the court's time (SCR No 41 of 2001; Application by Lawrence Bokele (2002) SC682). It will sometimes be the case – as here – that unmeritorious applications are not filtered out but their defects are exposed during the course of hearing preliminary points raised by the respondent at the hearing of the judicial review.


  1. That legal principle is consistent with another well-established principle and that is that competency issues may be raised at any time before judgment. The second and third defendants, having had no opportunity to be heard on the leave application are entitled to be heard on whether a requirement for leave was met, namely whether the plaintiff had exhausted all of the remedies open to her before she filed for judicial review.
  2. It is submitted on behalf of the first and second defendants that the plaintiff did not exhaust the statutory procedure under the Public Curator Act for review of actions of the Public Curator. The court accepts that submission. It is a reason that would have justified the refusal of leave, the plaintiff’s application presenting as unmeritorious at the time leave was granted.
  3. The basis of the court’s conclusion in this regard is as follows.
  4. Judicial review is not meant to be a deviation from an available review remedy created by statute to address grievance (Tiensten v Koim [2011] N5949 at [40]). Part VI of the PCA which is titled LEGAL PROCEEDINGS, ETC. provides such a review process. Part VI (ss 32 to 26) makes clear that once an administration order is made, whether under ss 10 or 11 of the PCA, all disputes and matters concerning the collection, management or administration of the estate or of the property and all claims on the estate or property are to be decided by the National Court or a Judge unless deemed by the National Court or Judge to be undesirable that the matters in question should be so decided with the National Court or a Judge in that eventuality to direct such proceedings to be instituted as appear proper (s 32).
  5. On the application of the Public Trustee or of a person interested in an estate being administered by the Public Trustee, the National Court or a Judge may make such orders concerning the collection, sale, investment and disposal of the estate as the Court or Judge thinks proper (s 33).
  6. Section 34, which is headed Complaints Against the Public Curator, provides the who, what and how of making an application to the National Court (s 34(1)), that an order under subsection (1) may be granted subject to such conditions as to security for costs as the National Court or a Judge imposes (s 34(2)), what the National Court or a Judge may do on the hearing of such an application (s 34(3) and the effect of an order made under subsection (3), namely that it has the same effect and enforceability as if it had been made in the National Court in a suit between the parties to the complaint.
  7. Sections 32, 33 and 34 are in these terms:

PART VI. – LEGAL PROCEEDINGS, ETC.

32. DISPUTES, ETC.

(1) Where an order is made under Section 10 or 11 in relation to the estate of a deceased person, or an order is made under Section 12 in relation to the property of a person–

(a) all disputes and matters concerning the collection, management or administration of the estate or of the property; and

(b) all claims on the estate or property,

shall, subject to Subsection (2), be decided by the National Court or a Judge.

(2) Where it appears to be undesirable that the matters in question should be decided in accordance with Subsection (1), the National Court or a Judge may direct such proceedings to be instituted as appear proper.

33. ORDERS AS TO THE ADMINISTRATION OF ESTATES.

On the application of the Public Curator or of a person interested in an estate being administered by the Public Curator, the National Court or a Judge may make such orders concerning the collection, sale, investment and disposal of the estate as the Court or Judge thinks proper.

34. COMPLAINTS AGAINST PUBLIC CURATOR.

(1) A person interested as creditor, next of kin, or otherwise in the estate of a deceased person that the Public Curator is administering under this Act, may–

(a) on the neglect or refusal of the Public Curator to do any act in relation to the administration of the estate; or

(b) on the Public Curator’s doing, or threatening to do, any act in breach of his duty with reference to the estate,

apply on affidavit to the National Court or a Judge–

(c) for an order calling on the Public Curator to show cause before the Court or a Judge, on a day not less than two days after the service of the order on him, why he should not do or abstain from doing the act; and

(d) for an interim order in the nature of an injunction, if warranted by the facts of the case.

(2) An order under Subsection (1) may be granted subject to such conditions as to security for costs as the National Court or a Judge imposes.

(3) On the hearing of a complaint under Subsection (1), the National Court or a Judge may–

(a) receive proof of the matters in relation to the complaint orally or by affidavit; and

(b) make such order as the circumstances of the case require, and in particular as to payment of costs–

(i) by the complainant; or

(ii) by the Public Curator; or

(iii) from the estate administered by the Public Curator,

as, in the discretion of the Court or Judge, seems just.

(4) An order under Subsection (3)–

(a) has the same effect; and

(b) is enforceable by the same process,

as if it had been made by the National Court in a suit between the parties to the complaint.


  1. It is submitted on behalf of the plaintiff inter alia that s 34 is an ‘anticipatory or preemptive provision’ to address complaints where the Public Curator ‘is likely to detour from proper ongoing management’ (emphasis by Counsel for the plaintiff) and as such intended to cover situations only in the ongoing administration of the estate, not a final distribution decision as is the case here. It is further submitted that Angui is distinguishable on its facts, the learned trial judge determining that there had been no final decision made.
  2. With respect to the latter submission, the learned judge in Angui dismissed the application for judicial review before him for two reasons: firstly, by reason of there being no decision to be reviewed and secondly, that the plaintiffs failure to exhaust their statutory review rights before seeking judicial review (at [26]). It is the latter principle that has direct relevance to the facts of this case.
  3. With respect to the former submission on behalf of the plaintiff that s 34 is limited to addressing complaints only relating to the ongoing management of an estate, that submission must be rejected. It is an interpretation that places limitations where none should be imputed and would otherwise be contrary to the plain reading of the section that seeks to address a range of scenarios in the administration of an estate, including a decision with respect to the disposal of the estate.
  4. The plaintiff, being a "person interested as ... next of kin ... in the estate of a deceased person that the Public Curator is administering under this Act", had a right "on the Public Curator's doing, or threatening to do, any act in breach of his duty with reference to the estate" – the decision outlined by his letter of 31 July 2017 – to apply to the court under Section 34(1) "for an order calling on the Public Curator to show cause before the Court ... why he should ... not do or abstain from doing the act" and "for an interim order in the nature of an injunction" to restrain him from carrying out his decision. The court could then have heard the plaintiff’s complaint and made such order under Section 34(3) "as the circumstances of the case require".
  5. That the plaintiff was aware of the relevant avenue of statutory review and chose to initiate proceedings with reference to it, is clear on the pleadings, the plaintiff’s stated relief made pursuant to s 33 of the PCA at [14] of her Statement of Claim in WS1258 of 2018. Indeed, the plaintiff sought the same relief, pursuant to ss 33 and 34 of the PCA, in the subsequent proceedings issued by her in WS No 1364 of 2018.
  6. Whilst the plaintiff initiated proceedings in WS1258 of 2018, those proceedings were not finally determined and the remedies available to her by virtue of that statutory review process not exhausted before she sought leave for judicial review.
  7. In a somewhat scatter gun approach to the litigation the plaintiff issued fresh proceedings in WS No 1364 of 2018 which were dismissed, the plaintiff then seeking to resurrect WPA No 3 of 2017, proceedings already concluded, before then filing for judicial review.
  8. In short, the court is unable to conclude on the evidence that at the time the plaintiff commenced fresh proceedings for leave for judicial review she had exhausted the avenue of statutory remedy available to her in WS1258 of 2018. It is a circumstance that would have justified refusal of leave for judicial review and, thus, one fatal to this application (Independent State of Papua New Guinea v Kapal [1987] PNGLR 417; Kekedo v Burns Philp (PNG) Ltd. [1988-1989] PNGLR 122). It is one that also represents an abuse of court process. This is not a case where the exceptions to the rule of exhaustion of an avenue of review could be said to apply nor the interests of justice demand that the requirement be waived (Innovest Ltd. v Pruaitch [2014] N5949 at [38]).
  9. The submission on behalf of the plaintiff that the proceedings WS1258 of 2018 were concluded at the time she initiated proceedings for judicial review is not supported on the evidence. The court accepts the submission of the first defendant that it was the plaintiff’s Notice of Motion filed 15 October 2018 in WS1258 of 2018 seeking restraining orders that was dismissed because the plaintiff failed to serve the parties within the time specified in a chambers order. It accords with the evidence which includes the Registrar’s referral form as to service requirements that accords with Order 4 Rule 42 of the NCR that requires service of a Notice of Motion, unless the Court otherwise orders, not less than three days before the date named in the notice for hearing the motion. It is supported by the order of 24 October 2018 that dismissed the matter and provided that the applicant was at liberty to file fresh documents seeking the same relief provided it afforded all parties sufficient notice of not less than 3 working days to do so, the Motion for urgent determination seeking a restraint against the plaintiff’s eviction (see [3]–[4] of the Plaintiff’s further affidavit filed 21 October 2019). There is no evidence to support a finding that the court would have dismissed the entire proceedings at that time as opposed to the Motion that had not been properly served in accordance with the NCR as to service and a chamber direction. If there was confusion about what had been dismissed, it lay with the plaintiff.
  10. On 31 October 2018 the plaintiff however filed fresh proceedings in the same commercial track in WS No 1364 of 2018, the pleadings, save for some minor changes, and the relief sought, a mirror of that sought in WS1258 of 2018. The plaintiff also filed a further Notice of Motion in the same terms as earlier filed in WS1258 of 2018.
  11. It is unchallenged that on 8 November 2018 the proceeding WS No 1364 of 2018 was dismissed in its entirety for being an abuse of process. This was because the learned Judge found that the proceeding WS1258 of 2018 was still on foot and the application before him thus an abuse and without merit. A finding to this effect is supported by the plaintiff’s Application for Leave to Appeal filed 9 November 2018, the plaintiff seeking leave to appeal the ruling of the primary Judge that had found inter alia that the earlier initial proceedings remained (see [(2)(f)] of the Appeal). It is also supported by the plaintiff’s evidence at [3] and [5] of her further affidavit filed 21 October 2019 in support of her application for leave for judicial review.
  12. It is unhelpful, and ultimately a submission that can be accorded little weight, for Counsel for the plaintiff to then submit at [7.5] of the additional written submissions that the dismissal of WS No 1364 of 2018 was erroneous. The plaintiff had an opportunity to test that view on appeal, namely that WS1258 of 2018 had been dismissed in its entirety. She chose not to do so, as she withdrew her appeal by court order of 8 March 2019. Whilst the plaintiff gave evidence at [6] of her affidavit filed 21 October 2019, in support of her application for leave for judicial review, that she could obtain a transcript of the hearings on 25 October 2018 and 24 April 2019, she did not adduce that evidence in these proceedings. It is reasonable to infer that if that evidence supported her case, namely that the proceedings in WS1258 of 2018 had been finally determined, she would have led that evidence. It was in the plaintiff’s interests to adduce that evidence if it supported her case.
  13. Having withdrawn her appeal, the plaintiff did not thereafter pursue her rights under s 34 of the PCA in the National Court in WS1258 of 2018. She initiated fresh proceedings in a different litigation track for judicial review, in circumstances where a National Court Judge had made a finding, unchallenged on appeal, that the proceeding WS1258 of 2018 was still alive, those proceedings the appropriate statutory pathway of review, the exhaustion of that statutory remedy a requirement for leave for judicial review, the plaintiff’s evidence on the ex parte leave application for judicial review being that all of her WS applications in the commercial track had been dismissed (see plaintiff’s affidavit filed 13 August 2029 at [18]-[19] and further affidavit filed 21 October 2019).
  14. In the result the plaintiff’s application for judicial review should be dismissed by reason of her failure to exhaust the statutory review process under the PCA available to her.
  15. Further, and by reason of that failure, her application for judicial review is an abuse of process. It is the duty of the court, and the court has wide powers in that regard, to control proceedings before it, subject to jurisdictional limitations fixed by statute. This includes ensuring that the conduct of the parties does not involve an abuse of court process and that justice is served in a timely and an orderly manner (Paul v Kispe [2001] PGNC 132; N2085).
  16. Having reached that conclusion, it is not necessary to address the defendant’s further submissions as to multiplicity of proceedings and res judicata in support of their submission that the judicial review proceedings amounts to an abuse.
  17. The evidence does not suggest that the interests of justice require an order be made pursuant to s 155(4) of the Constitution such that the plaintiff and her lawyer be estopped or restrained from issuing further court proceedings concerning the deceased property and estate. The order sought is a serious order, one that should be cautiously granted. It is always open to the defendants to seek security for costs in the event of further litigation and if the circumstances warrant the making of such an order for indemnity costs, again, if the circumstances warrant a departure from the usual order as to costs on an unsuccessful application.
  18. With respect to the costs of these proceedings, costs should be paid on a solicitor and own client basis. The history of this litigation does not reflect well on the plaintiff. The defendants have been put to expense unnecessarily because of these proceedings. It requires they be compensated on a solicitor and own client basis and not a party and party basis.

OBSERVATIONS ON THE SUBSTANTIVE APPLICATION


  1. As the grounds of judicial review have been argued in full, and in line with the approach of Cannings J in Angui, I shall make some observations on the substantive application. While not a formal determination, it is one that may assist the finalisation of a matter that has occupied this court for close to seven (7) years, a history of litigation which has already involved four (4) sets of costs orders against the plaintiff and/or her lawyer, now a fifth, as a consequence of this ruling. It suggests pause for thought by the plaintiff, the estate not yet finalised ten years after the death of the deceased, in circumstances where there is no objection by any of the other beneficiaries, other than the plaintiff, to the decision to sell the Hohola property and divide the net proceeds equally between the plaintiff and the eldest son, in circumstances where the plaintiff has had the continued benefit of occupation of the Hohola property throughout.
  2. The plaintiff raises three (3) grounds of judicial review, namely:
    1. ultra vires, whether the decision was in breach of ss 35D, 35E and 35K of the WPAA;
    2. Unfairness based on the Wednesbury principle of unreasonableness;
    1. Breach of natural justice by reason of bias and no opportunity to be heard before the decision to distribute was made.

Ultra Vires


  1. The various headings of the plaintiff’s submissions that would fall within this ground are found at [3.12] of the plaintiffs written submissions filed 29 November 2023.
  2. It is the plaintiff’s complaint that the distribution decision failed to identify other properties if any, failed to make enquiries under section 35E of the WPAA as to custom and what happens in cases of intestacy in polygamous settings among the Huli people of Hela Province and arbitrarily proceeded to make a decision outside of the confines of the relevant laws that regulates disposal of assets in the case of intestacy in breach of the law and targeted an old run down property where the plaintiff had been living with the deceased for 13 years. These can be grouped and considered together.
  3. In the recent decision of Nari v Public Trustee [2023] PGNC 261; N10421 (Nari), Shepherd J outlined the principles relating to the grant of administration in an intestacy. I respectfully adopt those principles.
  4. Division 6 of Part III of the WPAA comprises ss. 81 to 88. It is these provisions which govern the distribution by an administrator of an intestate person’s net estate after payment of debts and liabilities, including prescribing in detail the categories of those persons who are entitled to share in that distribution (Nari at [45]-[46]).
  5. The court accepts the submission on behalf of the first and second defendants that where Letters of Administration pursuant to s 10 of the PCA have been granted to the defendants by the National Court, as was the case here, the jurisdictional basis for the distribution of the estate of a deceased person who dies intestate is pursuant to ss 81, 82, 83 and 84 of Division 6 of the WPAA and not under Division 5 of the WPAA which deals with distribution in accordance with custom applicable to that person and in accordance with s 35E. There is no merit in the plaintiff’s submissions that the first defendant in proceeding under Division 6 of WPAA was acting outside the scope of his lawful authority to administer.
  6. Further, the onus is on the person claiming distribution of an estate by custom to produce evidence to establish the custom of the rights of inheritance and distribution of a deceased estate, that person required to produce a certificate by a District Officer or other person who in the opinion of the Public Curator is competent to certify customary entitlement to the estate (Kundalin v Ipo [2023] PGSC 30; SC2377 at [17]). The plaintiff did not produce such a certificate. Further, the Hohola property is not customary land, rather state lease regulated by the Land Act and Land Registration Act.
  7. Section 81(2) and (3) of WPAA provides for the even distribution in estates involving polygamous marriages.
  8. Sections 82 and 83 of WPAA provide for the distribution in cases where there is surviving spouse but no issue and surviving mother but no spouse, issue or father respectively.
  9. Section 84 of the WPAA provides a general distribution scheme that captures all situations. It sets out detailed criteria for prescribing those persons who are entitled to share in the distribution of an intestate estate.
  10. Section 84(1) states:

84. Distribution on intestacy generally

(1) Subject to this section and to Sections 82 and 83, where a person dies intestate—

(a) if the intestate leaves a widow or widower—she or he is entitled, if the intestate leaves issue, to one-third or, if the intestate leaves no issue, to one-half of the estate; and

(b) if the intestate leaves a father and a mother but no widow or widower or issue—the estate shall be distributed equally between the father and the mother, and in the case of the latter for her own use; and

(c) if the intestate leaves a widow or widower a father and a mother but no issue—one-half of the estate shall be distributed equally between the father and the mother, and in the case of the latter for her own use; and

(d) if the intestate leaves a widow or widower and a father but no issue or mother—the father is entitled to one-half of the estate; and

(e) if the intestate leaves a widow or widower and a mother but no issue or father—the mother is entitled to one-half of the estate; and

(f) if the intestate leaves a father but no widow or widower, issue or mother—the father is entitled to the estate; and

(g) if the intestate leaves a mother but no widow or widower, issue or father—the mother is entitled to the estate; and

(h) if the intestate leaves a widow or widower but no issue, father or mother—the widow or widower is entitled to the estate; and

(i) subject to Paragraphs (a) to (h), the estate or the portion of the estate to which those paragraphs do not apply shall be distributed in equal shares among the children of the intestate living at his decease and the representatives then living of any children who predeceased the intestate, or, if there are no such children or representatives, among the next of kin of the intestate who are in equal degree and their representatives.

  1. Applying the provisions of s 84(1)(a) the plaintiff would receive one third as she is the widow of an intestate who has left issue. The decision of the first defendant was that she would retain Tari together with one half of the Hohola property with the other half of the net proceeds of sale to be received by the eldest son.

Unfairness based on the Wednesbury principles of unreasonableness


  1. While the duty to act fairly and to be seen to act fairly as provided by s 59(2) of the Constitution, implies reasonableness in decision making, the test under the Wednesbury principle is a high one. It will apply to only a limited class of cases (Kamuta v Sode [2006] N3067). While the plaintiff is entitled to disagree with the reasoning behind the decision of the first defendant and view it as unreasonable and therefore unfair, it not what the plaintiff or even the court considers to be unreasonable (Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1 KB 223 per Lord Greene MR at [230]). Based on the Wednesbury principle of unreasonableness the court can only intervene if the decision presents as being “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to it could have arrived at it” (Council of Civil Unions v Minister of Civil Service [1985] AC 374 per Lord Diplock). That is the test. The facts of this case do not suggest that the Wednesbury test has been met.

Natural justice - bias and right of all beneficiaries to be heard


  1. There is little persuasive evidence to suggest this ground has merit. Section 59(2) (principles of natural justice) of the Constitution says "the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly". The plaintiff asserts at [2.5] of her Statement that the first defendant proceeded to make a decision that was unfair inter alia by doing so without the consent of or the right of the other siblings and beneficiaries to be heard. At [11] of her affidavit filed 13 August 2019 she deposes to neither she, the siblings of the eldest son or other siblings or relatives were given the opportunity to make a general consensus on the decision. However, she gives no evidence to explain her absence from the meeting called by the first defendant on two occasions, the purpose of which was to reach a family consensus. Further, she adduces no evidence from any sibling or other potential beneficiary that they sought and were deprived of the right to be heard.
  2. On the plaintiff’s evidence at [7] of the same affidavit she deposes to the beneficiaries agreeing to the Letters of Administration on the basis that the first defendant would identify a number of properties, if any, and distribute according to the beneficiaries’ interests. There is no evidence that the beneficiaries had any issue thereafter with the manner in which the first defendant did so. The decision of 31 July 2018 was addressed to all concerned beneficiaries, not just to the plaintiff. They were also copied in on the plaintiff’s letter to the first defendant dated 4 December 2017, wherein she stated her case for division and her retention of the Hohola property. That those contacted had no issue with the administration or decision of the first defendant to divide the estate as proposed by the first defendant is supported by the unchallenged evidence of the first defendant that by order of the Chief Justice on 7 December 2018 the Chief Justice tasked him to find out the position of the rest of the beneficiaries. He did so by obtaining affidavits from various beneficiaries which were filed, bearing in mind that one child had died, one was disabled and one resided overseas. None of the beneficiaries who filed affidavits sought an interest in the Hohola property. All unanimously agreed with the first defendant’s administrative decision. Relevantly, not one of the deceased’s children or other potential beneficiaries supported the plaintiff’s case either in the WS or OS proceedings. Without that evidence it would be difficult for the plaintiff to assert a lack of consultation with a view to achieving a consensus.
  3. Further, on the evidence, and before the decision was made by the first defendant, the plaintiff was afforded an opportunity to state her case to the first defendant by way of letter from her lawyer dated 4 December 2017. In that letter the plaintiff set out her reasons for her refusal to consent to the sale of the Hohola property “under any circumstances.” Her reasons were detailed. That communication occurred seven (7) months before the making of the decision by the first defendant to sell the Hohola property and divide it equally between the plaintiff and the eldest son with the plaintiff to otherwise retain Tari. It is a period of time that does not suggest haste on the part of the first defendant or a lack of time to carefully consider the matters raised by the plaintiff as a basis for her retention of the Hohola property. The first defendant’s written decision set out the relevant background, the status of the relevant properties and his reasons for the decision he made. It was his statutory duty to make a decision in the administration of the estate.
  4. With respect to the claim of bias, while the duty to act fairly and to be seen to act fairly as provided by s 59(2) of the Constitution, also implies an absence of bias on the part of the decision-making body, there is little evidence to support a finding that the decision-making process was tainted in some way by a lack of independence or impartiality or bias on the part of the first defendant or that the plaintiff was treated unfairly by reason of some actual or apprehended bias in favour of the eldest son. The plaintiff disagreeing with the decision does equate to bias. The first defendant outlined the reasons for his decision. The plaintiff does not have to agree with those reasons however it is one thing to disagree, it is another to allege without persuasive evidence that a public official has engaged in impropriety in decision-making by reason of bias.
  5. As Kandakasi J (as he then was) said in Hagoria v Ombudsman Commission of Papua New Guinea [2003] PGNC 111; N2400:

A Court should not lightly conclude that an allegation of apprehended bias is made out, let along actual bias. Reasonable apprehension must be firmly established, not left at the level of speculation... It is not unusual for parties not to be happy with the remarks or conduct of Judges [or decision- makers]. This does not mean bias has been established.


  1. The plaintiff’s Statement dated 12 August 2019 makes an assertion at [4.2] that the first defendant “endeavored to buttress the interest of one Peter Yuwi to the exclusion of other siblings and the majority concession on the Plaintiff’s right to possession of the property.” (see also affidavit of plaintiff filed 13 August 2019 at [16]-[17]). An assertion is not evidence. Nor is speculation, evidence. There is no evidence that any of the other potential beneficiaries had an issue with the decision of the first defendant. None sought to involve themselves in these proceedings.
  2. The evidence of the plaintiff in her affidavits filed 13 August 2018 and 21 October 2019 takes the matter no further.
  3. Relevantly no submissions were made on behalf of the plaintiff in support of this ground.

ORDERS


  1. In the result the court makes the following orders:
    1. The application for judicial review is dismissed.
    2. The plaintiff pay the costs of the first and second defendant on a solicitor/own client basis to be agreed or taxed.
    1. Time to abridge.

Apo & Co: Lawyers for the Plaintiff
Public Trustees Office: Lawyers for the First and Second Defendants



[1] Originating Summons filed 13 August 2019 (Review Book page 2)

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