N11560
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 207 OF 2024 (IECMS)(CC2)

BETWEEN:
BEWANI WUTUNG ONEI LOCAL LEVEL GOVERNMENT
Plaintiff

AND:
PAPINDO TRADING COMPANY LIMITED
Defendant

WAIGANI: COATES J
23 SEPTEMBER 2025

PROCEDURE – Orders made ex parte – Order 4 Rule 49(19) National Court Rules – Rule should be followed unless urgency

Counsel 
G Kult, for plaintiff 
R Pato & Mr K Kuli, for defendant 

DECISION

1.	BY THE COURT: This is a matter which I listed for today to hear an application to set aside a judgment obtained ex parte. 

2.	In the substantive matter, the plaintiff seeks declarations that it has title to a property at Vanimo, that property currently being used by the defendant in a commercial business as a supermarket.  

3.	The ex parte orders made required the defendant to give possession of the land to the plaintiff and to vacate the land within 30 days. 

4.	Those orders were made 24 May 2025 by His Honour Justice Carey. 

5.	In setting this hearing down to hear the notice of motion, all sides were ordered to file the relevant material.  
6.	I had made orders staying the original orders until the matter could be determined. 

7.	In attending court today, counsel for the plaintiff objected to the hearing on ground that Order 4 Rule 49(19) subsection (4) of the National Court Rules specifically states that the judge who made the order originally ought to hear the matter again. There is an exception that another judge may hear the matter. 

8.	It seems to me that that rule exists so that the original judge who made the order would be in a position of knowing all there is to know with regards to the facts and the allegations.  And the exception allowing another judge to hear the matter is there if, for instance, the original judge is not available, is incapacitated or there is such urgency that the matter should be heard by another judge.  

9.	I have canvassed with the parties the matter of urgency.  The defendant is certainly not prejudiced if the matter is not heard today because the defendant maintains the property and conducts the business.  The plaintiff informs the court that it is not prejudiced by the matter returning to Justice Carey.  Justice Carey is a serving judge.  He is available, not in the sense that he is available today, but he is available in the normal course of discharging his duties. 

10.	What I will do then is transfer the matter pursuant to the rule because I can see no good reason to undermine the rule when Justice Carey will be available at some stage in the near future, and there is no urgency requiring another judge to hear a matter urgently. So, the Order will be that this matter, pursuant to Order 4 Rule 49(19)(4), should be transferred back to Carey J for determination.

ORDERS

1.	Pursuant to Order 4 Rule 49(19)(4) of the National Court Rules, this matter is transferred back to His Honour Justice Carey for further determination. 

Judgment accordingly 

Lawyers for plaintiff: Young & Williams Lawyers
Lawyers for defendant: Steeles Lawyer