N11652

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 108 OF 2016

ENGA PROVINCIAL GOVERNMENT
Plaintiff

v

MATTHEW MINAPE
First Defendant

BENJAMIN SAMSON
Second Defendant

ALA ANE
Third Defendant

LINUS BILLY
Fourth Defendant

MOSES KILA
Fifth Defendant

JACK BACKUS
Sixth Defendant

HON JOHN RUSSO MP
Seventh Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Defendant

WABAG: ELLIS J
19 DECEMBER 2025

NOTICES OF MOTION – Plaintiff seeking to strike out defence – Defendants seeking to file amended defence and cross claim – both motions dismissed – proceedings commenced in 2016 – orders made for prompt conduct of final hearing

Cases cited	
Columbus Investment Limited v Tubavai & Ors [2025] N11179
Credit Corporation (PNG) Ltd v Jee [1988] PGNC 24; [1988-89] PNGLR 11; N696
George v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 477
John Pias v Michael Kodi & ors [2004] PGNC 84; N2690
Kappo No 5 Pty Ltd v Wong [1997] PGSC 26; [1998] PNGLR 544
Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870
Korowa v Kala [2004] PGNC 22; N2760
Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015
Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273
Public Officers Superannuation Fund Board v Imanakuan [2001] PGSC 4; SC677 

Counsel
S Sipani for the plaintiff
J Aku for the first defendant
No appearance for the second to eighth defendants

RULING

1.	ELLIS J:  An abbreviated history of these proceedings, in which more than 
50 documents have been filed over almost ten years, is as follows:

29 Feb 16		Writ of summons filed
05 Jul 23		Amended writ of summons filed
04 Dec 23		First defendant file motion to strike out proceedings
26 Jan 24		That motion was dismissed with indemnity costs awarded
23 Apr 24		Defence of first defendant filed
23 May 24		Plaintiff filed a reply to that defence
15 Jan 25		First defendant changed lawyers
04 Mar 25		First defendant filed motion, seeking leave to file an
			amended defence and cross claim, plus affidavit in support
13 Jun 25	Plaintiff filed motion, seeking to have first defendant’s defence struck out, plus affidavit in support

2.	That abbreviated chronology does not reveal the number of directions hearings, nor does it reveal the first defendant’s initiation of Supreme Court proceedings during the lengthy life of these proceedings.  It is sufficient to note that, in these proceedings, the plaintiff challenges the first defendant’s title to a parcel of land, alleging fraudulent conduct.  Plainly, if the plaintiff is successful, it will acquire title to that land.  If the plaintiff is not successful, the first defendant will retain his title to that land.

Adjournment request

3.	At a call-over on 3 October 2025, it was indicated that there were pending notice of motion that required determination.  Accordingly, they were both listed for hearing on 3 November 2025.  However, shortly before that intended hearing, an adjournment was sought on the basis that the lawyers for the parties did not wish to travel through Wapenamanda.  

4.	While that request was granted, the orders made included an order that made it clear to both parties that they should proceed on the basis that there will be no further adjournments of either motion.  Despite that indication, the Court was advised yesterday that the plaintiff’s lawyer had been unable to book a flight from Port Moresby to Mount Hagen.  

5.	An affidavit of Mr Kandi was filed yesterday in support of that application. That affidavit said that he had been unable to book a flight from Port Moresby to Mount Hagen with the result that he was unable to attend today’s hearing.  

6.	However, nothing was said to indicate when an attempt to make such a booking was first made.  Had that been done on or shortly after 3 November 2025, there would not have been any problem in making that trip.  Leaving travel arrangements until too close to a hearing is not a valid basis for an adjournment, especially in a case with a history such as these proceedings.

7.	To the court’s dissatisfaction with that conduct of the plaintiff’s lawyer must be added dissatisfaction with the conduct of the first defendant’s layer who declined an opportunity to have these motions considered on the papers, despite each party providing ample written submissions that obviated the need for oral submissions.

8.	For the reasons set out above, the plaintiff’s request for an adjournment was refused.  The suggestion that a consideration of these motions, which were filed in March and June this year and were said on 3 October 2025 to require resolution, should be deferred until February 2026 is unacceptable.  Further, it is not for the parties to pick and choose when matters will be heard.  The reality is that the work of this Court is planned well in advance.  As a result, if today’s hearing were to be adjourned, these motions could not be considered until at least March 2026.  The preferable course is to finalise these motions today and make orders that will enable these proceedings to be finalised by then.

9.	There is a need for lawyers to show more respect for the Court’s allocation of hearing dates.  Hearing time of the Court is a scarce resource and it is important that matters proceed on their allocated dates.  Adjournments result in wasted hearing time and a disruption of other cases.  The idea that cases can be simply deferred and that any disruption can be dealt with by an order for costs is no longer applicable.

First defendant’s notice of motion

Documents

10.	The documents relating to the first defendant’s notice of motion, which sought leave to amend his defence and file a cross-claim, are set out below:
Doc
	Description	Filed	Marking	
46	Notice of Motion	04 Mar 25	MFI 1	
47	Affidavit of Matthew Minape	04 Mar 25	Exhibit A	
45	Orders made by Kandakasi DCJ on 17 Jan 25	14 Feb 25	MFI 2	
35	Defence to Amended Statement of Claim	23 Apr 24	MFI 3	
19	Affidavit of Mattew Minape	04 Dec 23	Exhibit B	
61	First defendant’s submissions in support	15 Dec 25	MFI 2	
59	Plaintiff’s submissions in opposition	31 Oct 25	MFI 3	

Evidence

11.	The affidavit of the first defendant filed on 4 March 2025 referred to the history of the land which is the subject of these proceedings, then said he intended to file an Amended Defence and Cross Claim to obtain a declaration that he is the registered proprietor of that land and to seek a permanent injunction to restrain the plaintiff in future.  A copy of the proposed Amended Defence and Cross Claim was annexed to that affidavit.  The orders made on 17 January 2025 anticipated the allocation of a trial date “on 22 May 2025 at 9:30 am or soon thereafter” and contemplated that the first defendant may seek leave to file and serve an Amended Defence and Cross Claim.  The existing defence serves to enable a comparison between the issue raised in that Defence and the proposed Amended Defence.  The affidavit of the first defendant filed on 4 December 2023 presents as the affidavit which contains the evidence upon which he intends to rely at the final hearing.

Submissions for

12.	 After setting out a history of these proceedings, reference was made to Order 8 Rule 50(1) of the National Court Rules and to the decisions in Papua Club Inc v Nusaum Holdings Ltd [2002] PGNC 50; N2273, George v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 477 and Columbus Investment Limited v Tubavai & Ors [2025] N11179.  Submissions were made under the following headings, namely:

(1)	whether the amendment will enable the Court to determine the real question in controversy between the parties,
(2)	whether the amendment will correct any defect or error in the proceedings,
(3) 	whether the amendment will cause real prejudice or injustice to the opposing party,
(4)	whether the application is made in good faith or with mala fide intent,
(5) 	whether the opposing party can be fairly compensated with costs for any inconvenience caused by the amendment,
(6) 	whether the applicant’s conduct or the progression of the proceedings precludes the amendment,
(7) 	where the interests of justice lie, and
(8)	whether the proposed amendment is efficacious and appropriate.

Submissions against

13.	The plaintiff’s submissions contended that the first defendant’s application was “made mala fide and with bad faith”.  Reference was made to the first defendant’s interlocutory applications, including Supreme Court proceedings.   It was noted that these proceedings are now more than nine years old and a supporting chronology was provided.  In addition to the cases referred to by the first defendant, reference as made to John Pias v Michael Kodi & ors [2004] PGNC 84; N2690.

14.	In conclusion, it was submitted that the first defendant’s notice of motion should be dismissed with costs.
Plaintiff's notice of motion
Documents

15.	Documents relating to the plaintiff’s notice of motion, which sought that the first defendant’s existing defence struck out and summary judgement entered, were:
Doc
	Description	Filed	Marking	
49	Notice of Motion	13 Jun 25	MFI 4	
50	Affidavit of Andrea B Yauieb	13 Jun 25	Exhibit 1	
48	Affidavit of Walo W Bala 	13 Jun 25	Exhibit 2	
58	Plaintiff’s submissions in support	31 Oct 25	MFI 5	
62	First defendant’s affidavit, 
treated as submissions in opposition	18 Dec 25	MFI 6	

Evidence

16.	The affidavit of Ms Yauieb recounted the history of these proceedings since 16 April 2024 and included reference to the plaintiff’s Notice of Discovery and Draft Statement of Agreed & Disputed Facts & Legal Issues.  The orders made by the Deputy Chief Justice on 24 October 2024 and 17 January 2025 were set out, and it was contended that the first defendant had failed to comply with the Court’s orders dated 16 April 2024, 24 October 2024 and 17 January 2025.  It was contended that this was an appropriate case for the Court to exercise the discretion provided by the National Court Rules, to strike out a defence and enter default judgement.

Submissions

17.	 Reference was made to decisions relating to the law on discovery in Public Officers Superannuation Fund Board v Imanakuan [2001] PGSC 4; SC677, Credit Corporation (PNG) Ltd v Jee [1988] PGNC 24; [1988-89] PNGKR 11; N696 and Korowa v Kala [2004] PGNC 22; N2760. 

18.	The claims made by the first defendant in his Defence were noted, and an order for costs on indemnity basis was sought. On that issue, the plaintiff relied on the decisions in Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 and Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870.

Submissions against

19.	It was contended that (1) the grounds were not set out in the motion, and (2) that the plaintiff’s notice of motion had already been dealt with.  The second of those claims was said to be based on orders made by Kandakasi DCJ on 17 January 2025 but a consideration of those orders does not provide support for that claim. Indeed, it is difficult to see how the plaintiff’s motion, filed on 13 June 2025, could have been dealt with on 17 January 2025. Further, at the directions hearing on 3 October 2025, there was no dispute that each party had a notice of motion that needed to be heard.
Consideration – first defendant’s motion
20.	The first defendant’s motion is dismissed for the following reasons.  First, while it is the function of pleadings, such as the defence, to show the nature of the case to be met and to disclose the issues to the Court, that will be achieved in this case by the filing of a Statement of Agreed and Disputed Facts and Issues, the affidavit evidence and the written submissions of the parties.

21.	Secondly, as it is almost ten years since these proceedings were commenced, there is a need for an approach to their finalisation which is prompt and practical, not protracted and pedantic.

22.	Thirdly, the proposed defence does not materially add to the issues but allowing it would add time and cost to the resolution of these proceedings.

23.	Fourthly, the cross claim lacks utility in that the first of the two orders sought will follow from a determination of the primary issue of whether the first defendant’s title to a parcel of land is vitiated by constructive fraud, while the second order is not an order which the Court is likely to grant, being in the form of a permanent injunction that seeks to restrain potential or hypothetical conduct.

24.	Fifthly, the delay in seeking to pursue a cross claim in these proceedings  weighs against permitting it to be linked to these proceedings, as it is now (1) almost ten years since these proceedings were commenced, (2) more than two years since an amended writ of summons was filed and (3) more than 18 months since a defence was filed.  Refusing to permit a cross claim to be made part of these proceedings will not prevent the first defendant from pursuing the second claim if the need arises.

25.	Further, the conduct of the first defendant in not complying with the requirement of discovery weighs against the Court exercising it discretion in his favour.  A party cannot pick and choose the orders with which that party will comply by seeking an order in its favour as to pleadings while failing to comply with the requirement of discovery.

26.	Seventhly, in the circumstances of this case, including the issues and its history, the court is not persuaded that the interests of justice warrant permitting the amendment of the defence and/or the addition of a cross claim at this stage of these proceedings, which will involve additional time and additional costs.

27.	In short, the Court considers the clearly preferable course is to make orders that will enable this matter to be heard and determined as soon as possible. 

Consideration – plaintiff’s motion

28.	It must be observed that to grant the relief sought would be the equivalent of making a finding of fraud.   In document number 18, filed on 4 December 2023, the first defendant pursued a motion to have the plaintiff’s case struck out.  The plaintiff’s written submissions in that case included the words: “Summary disposal of proceeding cannot be obtained in a case which includes allegations of fraud”.  Kappo No 5 Pty Ltd v Wong [1997] PGSC 26; [1998] PNGLR 544 was cited in support of that submission, along with a reference to the National Court Rules.

29.	Order 12 Rule 37 is the first rule in Division 4 of Order 12, which is headed “Summary Disposal”.  That rule provides:

This Division applies to all proceedings except proceedings which include:
(a)	…
(b)	a claim by the plaintiff based on an allegation of fraud; or
(c)	…

30.	The plaintiff’s frustration at the slow pace of these proceedings and the first defendant’s failure to provide discovery is understandable. Orders need to be made today to progress this matter promptly and thereby contain the excessive time and cost of these proceedings.  It is sufficient to record that failure to comply with those orders will not be without consequences.

Costs

31.	It is preferable, in this instance, to consider all questions of costs at the conclusion of these proceedings.  As a result, the costs of both the notices of motion considered today will be reserved.

Orders

32.	For the reasons, and as these proceedings were commenced on 29 February 2016, the court makes the following orders:

1	The plaintiff’s application for an adjournment of today’s hearing is refused.
2	The first defendant’s notice of motion, filed on 4 March 2025, is dismissed.
3	The plaintiff’s notice of motion, filed on 13 June 2025, is dismissed.
4	The costs of those motions are reserved, for consideration at the conclusion of the proceedings.
5	The First Defendant is to provide discovery on or before Friday 16 January 2026.
6	If the First Defendant fails to comply with Order 5, the Plaintiff is to file and serve a Notice of Motion, Statement of Charge and Affidavit in support by Friday 23 January 2026 so this Court can consider whether the first defendant’s conduct constitutes contempt of court and, if so, what punishment should be imposed.
7	Any such Notice of Motion is to be made returnable at 9am on Friday 30 January 2026 when that Notice of Motion will be heard and determined.
8	On or before Friday 13 February 2026 the plaintiff is to file and serve a Court Book, which has an index and is paginated, containing only the evidence upon which the plaintiff intends to rely and any written submissions.
9	On or before Friday 27 February 2026 any participating defendant is to file and serve a Court Book, which has an index and is paginated, containing only the evidence upon which the defendants intend to rely and any written submissions.
10	These proceedings are listed for a final hearing at 9.30am on Friday 20 March 2026.
11	All remaining issues between the parties will be considered on that day and no issues will be considered prior to that day other than any question contempt on the part of the first defendant.
12	No document not contained in those Court Books will be admitted into evidence at that final hearing without leave of the Court.
13	All witnesses shall be available for cross-examination at that hearing.
14	Any party relying on a document the original of which is in their possession, is to bring that original document to the hearing.
15	The parties should proceed on the basis that no adjournment will be granted unless there are exceptional circumstances and no application for adjournment will be considered unless accompanied by an affidavit.
16	Time is abridged so that these orders may be entered forthwith.

Orders Accordingly.
__________________________________________________________________
Lawyers for the plaintiff: M.S. Wagambie Lawyers	
Lawyers for the first defendant: Jaku Lawyers