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Kaumba v Pupaka [2026] PGNC 60; N11738 (10 March 2026)

N11738

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
OS (JR) OF 168 OF 2024

PHILIP KAUMBA

AND

MARK PUPAKA, HONORABLE PILA NININGI, THE INDEPENDENT STATE OF PAPUA NEW GUINEA

GOROKA: WAWUN-KUVI J
10 MARCH 2026

JUDICIAL REVIEW – LEAVE APPLICATION-DELAY IN APPLYING FOR RELIEF-TIME LIMIT-Whether there was a delay

JUDICIAL REVIEW-LEAVE APPLICATION- COMPETENCY- What relief should be pleaded in an Originating Summons?

ORDERS- TIME SELF EXECUTING ORDER-Whether the applicant had not complied with a self-executing order?

Cases cited
Andrew Baing & The State v PNG National Stevedores Pty Ltd (2000) SC627

Kalinoe v Paul Paraka Lawyers [2014] SC1366

DECISION

1. WAWUN-KUVI J: It is reflected in the records of the Court that the applicant’s name was called three times outside of Court. The Court attendant marked no attendance.
2. The applicant is a lawyer and was informed of the proceeding.
3. The applicant filed an Originating Summons on 7 August 2024 and an amended Originating Summons on 28 November 2024.
4. The decisions complained of are 14 April 2022 and 9 February 2023.
5. He has not sought leave or obtained leave since then.
6. The Deputy Chief Justice issued a self executing order on 4 of August 2025 in the following terms:
   1. This matter is adjourned to tomorrow 5 August 2025 at 1.30 pm or soon thereafter.
   2. Counsel for the plaintiff to provide a detailed brief to either Mr Kaumba or some else in Goroka to proceed with the plaintiff’s application for extension of time.
   3. The foregoing order is made appreciating that time is of the essence, the alleged incident has occurred back in 2023, proceeding filed in 2024, and the application is still not being progressed.
   4. If the plaintiff fails to proceed with the application, it will stand dismissed.
   5. The time for the entry of these orders is abridged to take place forthwith upon the Court signing the Orders.
7. The matter was made returnable before me on 18 February 2026. The Registry and the Assistant Registrar gave notice to all parties and lawyers.
8. On 18 February 2026, there was no appearance of the applicant or his counsel.
9. While order 4 of Order dated 4 August 2025 by the Deputy Chief Justice was self executing, in the interest of justice, I extended the orders to today 10 March 2026 to give the applicant time to comply.
10. Since the extension of the Order, the applicant has not complied with the Court Orders of 4 August 2025.
11. On self executing orders, the Supreme Court in dismissing the appeal stated in Hon. Andrew Baing & The State v. PNG National Stevedores Pty Ltd (2000) SC627, at paragraph 13:

“We add, a conditional or self-executing order is not one that should be treated lightly. We say this because the order itself puts the party subject of the order on notice that a certain consequence will occur at a specified date in the future if the conditions of the order are not met. Thus, it is of utmost priority that the party required to comply adhere to its terms. Failure may result in an unfavourable consequence.

...........

In our view as the appellants were the subject of the conditional order and failed to satisfactorily explain the default, in the exercise of his further judicial function, it was open to the primary judge to satisfy himself if the order was complied with. Similarly, it was open to the respondents to seek perfection of the conditional order if the appellants failed to comply with it. The conditional order put the appellants on notice that if they failed to satisfactorily explain why they did not comply with the earlier order, the proceedings would be dismissed.”

12. There must be an explanation, and it must be a satisfactory explanation. The onus is on the applicant or plaintiff to provide reasons for failing to comply with the Order: Andrew Baing & The State v PNG National Stevedores Pty Ltd (2000) (supra).
13. Other than not complying with the Order of 4 August 2025 there are also two other issues with the application:
    1. Order 16 rule 4(1)(2) of the National Court Rules provide that there must not be a delay. And where an order for certiorari is sought, the applicant has four months. It was almost 2 years from the date of both decision when the proceedings were filed and almost 3 years to today.
    2. In both the initial OS and Amended OS the applicant sought substantive reliefs. In Kalinoe v Paul Paraka Lawyers [2014] SC 1366, the Supreme Court held that only one relief can be sought in an Originating Summons and no party at a leave stage can apply or should be granted other reliefs and the applicant should not seek substantive reliefs.
14. Order 16 Rule 13(2)(a) (b)(ii) of the National Court Rules state:

“2 Summary Disposal

1. Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds.
2. The Court may summarily determine a matter:
   1. On application by a party; or
   2. On the Court’s own initiative; or
   100. Upon referral by the Registrar in accordance with the procedure set out in (3) below”

15. The foregoing demonstrate that the applicant has not complied with directions or orders issued under Order 16 and on competency grounds.
16. OS JR 168 of 2024 is as such dismissed on two grounds for failing to comply with the Order of 4 August 2025 and for being incompetent.

Orders

17. The Orders of the Court are as follows:
    1. OS (JR) 168 of 2024 is dismissed.
    2. Each party shall meet their own costs.
    3. Time is abridged.
    4. The file is closed.