N11256
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MP (COMM) 1 OF 2024 (IECMS)

BETWEEN:
IN THE MATTER OF THE COMPANIES ACT 1997

AND:
IN THE MATTER OF APPLICATION BY:
RAPOPO PLANTATION RESORT (RABAUL) LIMITED (1-32982)

WAIGANI: CAREY J
17 & 24 APRIL 2025

COMPANIES RULES 1997 — Dismissal of Proceedings on Competency Grounds – Form 20 of the Companies Rules – Application of Order 10 Rule 9A, 15(1)(a) and (2)(e) of the National Court Rules.

The Respondents filed a Notice of Motion to dismiss the proceedings on the basis of competence of the Applicant’s summons. The Applicant posits that the Respondents do not have sufficient reasonable grounds to dismiss the proceedings. The Court considered the arguments as presented and made determinations as below. 

Held:

1.	 Pursuant to Rule 2 of the Companies Rules and Order 10, Rule 9A, 15(1)(a) and (2) (e) of the National Court Rules, the Summons filed by Irene Wan Xia Seeto under Rule 50(1)(t), Form 20 of the Companies Rules, is summarily dismissed for lack of competence.

2.	 Irene Wan Xia Seeto shall pay the Respondents’ costs of these proceedings.

3.	The time for entry of these Orders is abridged to the time of settlement by the Registrar which shall take place forthwith. 

Cases cited
Bluewater International Limited v Roy Mumu, Secretary Department of Transport and Independent State of Papua New Guinea [2019] SC1798
Macoes (PNG) Ltd v Kundi (PPC) [2008] PGNC 301; N4621
Peter Mangope & Four Others and Jack Bom Tongope v Rolence Maprik Haba, Representative of Tipa Clan, Hela Province and Alembo Wagarere & 14 Others and Thomas Pole, Ben Mangope & Others and William Bando, Acting Provincial Administrator, Hela Province and Hon Anderson Agiru MP, Governor, Hela Province and Hela Provincial Government and The Independent State of Papua New Guinea [2015] SC1459
Philip Takori v. Simon Yagari [2008] SC905
PNG Power Limited v Anthony Yakupa [2021] SC2083
Telikom PNG Ltd v ICC [2008] SC906

Counsel
R Mulina for the applicant
L Akane for the respondents

JUDGMENT

1.	CAREY J:  This is the decision in relation to James Joseph Pang, Richard Wong and Megan Martin collectively, (the Respondents) and in particular, the Respondents’ Notice of Motion (the Motion) filed on 25th March 2025.

2.	Irene Wan Xia Seeto (the Applicant) instituted proceedings against the Respondents on 16th February 2024.
 
BACKGROUND

3.	The Respondents sought orders for the proceedings to be summarily dismissed or struck out for lack of competence pursuant to Rule 2 of the Companies Rules 1997 and Order 10  Rule 9A, (15)(1)(a) and (2)(e) of the National Court Rules. 

4.	The Respondents relied on the following documents in support of Motion:

a.	Summons, filed 16th February 2024 and served on SLM Legal Practice Lawyers on 1st March 2024;
b.	Affidavit of Maria Chariz Hernandez filed on 4th April;
c.	Chamber Orders of 13th May 2024;
d.	Motion filed on 25th March 2025;
e.	Affidavit in Support of Mr James Pang filed 25th March 2025;
f.	Affidavit in Support of Mr Richard Wong filed 25th March 2025;
g.	Affidavit in Support of Ms Martin filed 25th March 2025; and
h.	Affidavit of Service of Young Taso filed on 2nd April 2025.

ISSUES 

5.	(a) Whether these proceedings should be summarily dismissed or struck out for lack of competence pursuant to Order 10, Rule 9A, 15(1)(a) and (2)(e) of the National Court Rules. 

DETERMINATION

6.	The Respondents submit that they had intended to make this application to strike out the Applicant’s summons earlier in 2024, however, due to Chamber Orders issued without a hearing and the matter having been referred to mediation, it was difficult to move this motion. 

7.	 In the National Court Act (Chapter 38) and in particular Section 7B inserted by National Court (Amendment) Act 2008 (No. 4 of 2008) it states that:

“(1) In addition to the jurisdiction vested in the Court by Section 166 of the Constitution, and any other law, the Court—
(a) may order a resolution of a dispute or a matter before it by mediation for an amicable resolution of the dispute; or
(b) may order or direct a proceeding or any part of the proceeding to be inquired into and resolved by an appropriately qualified and experienced person or an expert in the issue.
(2) At any stage of a proceeding, the Court may, whether with or without the consent of the parties, order that the proceeding or a part of the proceeding before it be referred to mediation......
(5) Unless the Court otherwise orders, an order for mediation shall not operate as a stay of the proceedings nor shall it be a cause for delaying in getting the case ready for trial.”

8.	The paragraph immediately preceding indicates that mediation does not operate as a stay of the proceedings unless the Court expressly indicated. 

9.	In this matter there was no such order issued which precluded the Respondent from filing and moving this motion earlier.

10.	In Peter Mangope & Four Others and Jack Bom Tongope v Rolence Maprik Haba, Representative of Tipa Clan, Hela Province and Alembo Wagarere & 14 Others and Thomas Pole, Ben Mangope & Others and William Bando, Acting Provincial Administrator, Hela Province and Hon Anderson Agiru MP, Governor, Hela Province and Hela Provincial Government and The Independent State of Papua New Guinea [2015] SC1459, it was held that:

“The principles of natural justice require that a Judge before whom a notice of motion is set down for hearing has a duty to hear the party moving the motion if the party requests that it be heard, be fair to all parties and be prepared to listen to all parties.”

11.	As such this Court was obliged to hear the motion once it was filed within a reasonable time. 

12.	The preamble by the Respondents regarding the timing as to filing of their Notice of Motion is relevant to their choice and not any dictates made by this Court. 

13.	 Chamber Orders are orders of the Court and the orders given to the parties for mediation were within the powers of this Court vested by the Constitution in Section 166 and in Statute in Section 7B of the National Court Amendment Act 2008.

14.	It is instructive to note that the Constitution in Section 166 states that:

“(5) The jurisdiction of the National Court may be exercised either in Court or in Chambers, as provided by or under an Act of the Parliament or the Rules of Court of the National Court.”

15.	 The Respondents argue that there are material defects in the Summons filed by the Applicant under Rule 50 (1)(t), Form 20 of the Companies Rules (Chapter 146).

16.	On the Summons the signature of the Registrar is missing and the Respondents avers that this demonstrates that the Summons is not competent as the jurisdiction of the Court has not been properly invoked.

17.	The Applicant argues that the stamp of the Court should suffice and that the pleadings are sufficient and the relief sought is clear and concise and suitable in law.

18.	Further, the Applicant in support of the argument as to why the proceedings should not be summarily determined posited that the case of Macoes (PNG) Ltd v Kundi (PPC) [2008] PGNC301; N4621 has applicability. 

19.	 I consider that the specific issue in contention does not attract the application of the case  aforementioned in the paragraph immediately before this paragraph given the critical factor for determination revolves around the competency of the Summons.

20.	 Further, if the competency of the Summons is determined to be an abuse of process, it would be for this Court in the exercise of discretion to consider all relevant arguments.

21.	 In PNG Power Limited v Anthony Yakupa [2021] SC2083 it states:

 “ 41. Pleadings play an important part in all matters going before the Court.”

22.	I accept this position by the Supreme Court as relevant to ensuring that matters filed in the National Court should be correct and without error and comply with statutory requirements which if not done will result in competency issues.

23.	The absence of the signature of the Registrar on the Summons is necessary to demonstrate that the Court’s jurisdiction was invoked.

24.	I am persuaded by the Respondents’ argument that the failure to have the Registrar’s signature on the Summons renders it non-compliant with the National Court Rules this material defect further contravenes the Companies Rules as the Summons has not been issued by the Court. 

25.	The Respondents contend that the Summons fails to state the parties to the case which in its current form does not specify the required information to be pleaded in the Summons under Section 220 of the Companies Act 1997. 

26.	The Applicant submits that the Summons filed is in accordance with Section 50 of the Companies Rules and pleads the jurisdiction of the Court per Section 220 of the Companies Act 1997.

27.	There is no specific response to the Respondents argument on the failure to state the parties to the case. 

28.	I accept the argument by the Respondents that the Summons does not state the parties to the case.

29.	The submission by the Respondents that the legal basis for the Summons is not stated is not wholly correct insofar as Section 220 of the Companies Act 1997 is indicated as the jurisdictional basis.

30.	The Applicant proffers that the Court’s jurisdiction is sufficiently pleaded in related to the Companies Act 1997 and is not defective.

31.	In reviewing this particular argument, it is important that attention to detail is observed in application brought under the Companies Rules and I am persuaded that the Summons does state its legal basis and therefore the Respondents’ argument on this particular area fails.

32.	The Respondents’ argument that the Summons does not specify the date and time for Respondents to attend before the National Court is whimsical and without substance for further consideration but to state that this in of itself would be insufficient to dismiss the proceedings for failure to comply with the National Court Rules when applying Philip Takori v. Simon Yagari [2008] SC905.

33.	The argument by the Respondents that the Summons does not specify the qualifications of the Company Auditor is not relevant, necessary or required per Section 220 (2)(b) as read in conjunction with Section 193 of the Companies Act 1997.

34.	I do not accept that this is an argument that has any merit as the duty of the requirements in the relevant sections of the Companies Act 1997 state that the person must be registered under the Accountants Act 1996 and the submission is that the named person would be one that is compliant with the requirement given the term that the person shall not be appointed unless they are a Registered Auditor. 

35.	As indicated in Telikom PNG Ltd v ICC [2008] SC906 at paragraph 8 of the dissenting decision of Injia DCJ, it states:

“8. The trial Court’s decision in an application to dismiss the proceedings on procedural grounds is an exercise of judicial discretion. Whilst this Court in cases before it has recognized the importance of protecting its process from abuse by parties and upheld dismissal of actions for this reason alone, it has also cautioned against rushing to judgment and dismissing proceedings without carefully considering the interest of justice in ensuring that parties are not disadvantaged or prevented from pursuing their rights in the matter. This Court has said that the discretion in favour of summarily dismissing a proceeding for non-compliance with procedural rules should be exercised with restraint, sparingly and in clear cases where good reasons are shown to exist: Niugini Mining Ltd v Joe Bumbandy SC804 [2005]; POSF v Silas Imanakuan [2000] SC677, PNG Forest Products Ltd v The State N2526......Accordingly, in the particular circumstances of this case, I have no difficulty in coming to the conclusion that Telikom has clearly abused the process of the Court."

36.	This Court accepts that it must exercise its discretion in manner that does justice and should only dismiss proceedings for non-compliance with procedural rules where good reasons are shown to exist. 

37.	This particular case demonstrates good reasons as submitted by the arguments of the Respondents and more specifically the failure to have the Registrar’s signature on the Summons vitiates any argument in favour of the competency of the Summons. 

38.	In the case of Bluewater International Limited v Roy Mumu, Secretary Department of Transport and Independent State of Papua New Guinea [2019] SC1798 at paragraph 12 it states:

“The decision of this Court in Philip Takori v. Simon Yagari [2008] SC905, which has been cited with approval and applied in many subsequent decisions of the Supreme Court emphasise this point in these terms:
“Our judicial system should never permit a plaintiff or a defendant to be ‘driven from the judgment seat’ in a summary way, ‘without a Court having considered his right to be heard.’ A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.”

39.	I am fully aware of the need to ensure that the Rules of the National Court are applied in a manner that promotes enhancement of the rights of the parties in a matter and to ensure that proceedings are adjudicated within a reasonable time and the right to be heard is guaranteed.

40.	In these proceedings, I am of the view that neither the Applicant nor the Respondents would have been driven from the judgment seat in a summary way without considering their right to be heard. 

41.	The Applicant has not provided a reasonable explanation as to failure to comply with the mandatory provision of the Companies Rules in which the Summons has not been issued by the Court in the absence of a signature from the Registrar.

42.	Having considered the arguments by Applicant and Respondents and in the exercise of my discretion, I am satisfied that the Respondents’ have made the case for these proceedings to be summarily dismissed for lack of competence pursuant to Order 10, Rule 9A, 15(1)(a) and (2) (e) of the National Court Rules. 

ORDERS

43.	     The Court Orders that:

1.	Pursuant to Rule 2 of the Companies Rules and Order 10, Rule 9A, 15(1) (a) and (2) (e) of the National Court Rules, the Summons filed by Irene Wan Xia Seeto under Rule 50 (1) (t), Form 20 of the Companies Rules, is summarily dismissed for lack of competence.

2.	 Irene Wan Xia Seeto shall pay the Respondents’ costs of these proceedings.

3.	The time for entry of these Orders is abridged to the time of settlement by the Registrar which shall take place forthwith. 

Ordered accordingly.

Lawyers for the applicant: Hill & Hill Lawyers
Lawyers for the respondents: SLM Legal Practice Lawyers