SC2810

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 58 OF 2024

RAIPEX WAIPA
Appellant

V

RUPERT TABUA,
in his capacity as the Provincial Lands Manager (Western Province)
First Respondent

FIRST CONSTABLE LAPISON WAIRA & CONSTABLE BILL MUAGI
Second Respondent

GARY BAKI, Police Commissioner
Third Respondent

ELIZABERT BOWADA,
Acting Managing Director (National Housing Corporation Ltd)
Fourth Respondent

BENJAMIN SAMSON,
in his capacity as the Registrar of Titles
Fifth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

ATI ULA
Seventh Respondent

WAN XIN LIN & QIAN BIN CHEN
Eighth Respondent

WAIGANI: POLUME-KIELE J, COATES J, CHRISTENSEN J 
29 SEPTEMBER, 3 OCTOBER 2025

CIVIL APPEAL – JUDGMENTS AND ORDERS – Summary Disposal – claim alleging fraud – claim alleging malicious prosecution – want of prosecution – self-represented litigant – procedural fairness

The appellant was the plaintiff in National Court proceedings which commenced in 2021 and related to the transfer of a land title. A first trial resulted in a mistrial. During the second proceeding for trial, the plaintiff came to be self-represented as his lawyer did not receive a practising certificate. The plaintiff sought an adjournment of the trial and the defendants sought summary disposal of the proceeding. The National Court summarily disposed of the matter for want of prosecution. 

The appellant appealed to the Supreme Court on grounds that in essence contend that (1) there was no jurisdiction to summarily dispose of the proceedings due to the claim being based on fraud per O 12 r 37(b) of the National Court Rules 1983, and (2) the primary judge erred in law and/ or fact in exercising the discretion to summarily dispose of the claim for want of prosecution 

Held

(1)	Summary disposal of a matter is not summary judgment or summary dismissal in accordance with the National Court Rules 1983.

(2)	Conflating a decision as to an adjournment application and an application to summarily dispose of a matter fails to afford procedural fairness to a plaintiff. 

(3)	A want of prosecution is not established where the plaintiff is not afforded an opportunity to proceed with the trial upon refusal of an adjournment application. 

(4)	Litigants, particularly those self-represented, must be afforded an opportunity to be fully heard. 

(5)	Appeal upheld and National Court proceeding reinstated and remitted. 

Cases cited
Ahmadiyya Muslim Mission v Bank South Pacific (2005) N2845
Chris Haiveta v Paias Wingti (No 2) [1994] PNGLR 189
John Niale v Sepik Coffee Producers Ltd (2004) N2637
Lord & Company Ltd v Inapero (2014) SC1624
Raipex Waipa v Rupert Tabua & Ors, WS 370 of 2021, 19 April 2024, Unreported
Tumbiako v Kaiyo; Viviso Seravo v Jack Bahafo (2001) N2078
Tumbiako v Kayo (2023) SC2493

Counsel
S Tolo for the appellant 
P Ohuma for the third, fifth, sixth respondents
S Michael for the fourth respondent
G Kult for the eighth respondent 

1.	BY THE COURT: By way of notice of appeal filed 17 May 2024 the plaintiff (the appellant) appeals against an order for summary disposal of a proceeding initiated on 12 August 2021 by writ of summons. The proceeding was disposed of for want of prosecution pursuant to O 10 r 9A(15)(2)(a) and (b) of the National Court Rules 1983 (the Rules) in circumstances where the appellant appeared in person but was self represented.

2.	The writ claimed relief for contended loss occasioned from the transfer of a title for land in Western Province. The circumstances in which the appellant had at one time ostensibly held title of the land resulted in the plaintiff being charged with a criminal offence. He came to be acquitted in the National Court with respect to that charge. 

3.	The plaintiff claims that while he was the subject of the criminal proceeding, one or more of the defendants to the proceeding, and this appeal (the respondents), engaged in alleged fraudulent conduct to secure title of the land. He further claims that the criminal proceeding was a malicious prosecution, and that his human rights were breached. 

4.	On 8 April 2024 the trial for the claim was to be heard in the National Court. This was to be the second trial proceeding, with a previous trial having been heard but declared a mistrial after the trial judge became unavailable to deliver decision. At the further proceeding for trial, now the subject of this appeal, the appellant was not represented as his lawyer did not hold a practising certificate.  

5.	The primary judge considered an application for a further adjournment by the appellant, and an application for summary disposal by the respondents. The claim was summarily disposed of for want of prosecution, with detailed reasons for this given on 19 April 2024 in an unreported judgment: Raipex Waipa v Rupert Tabua & Ors, WS 370 of 2021, 19 April 2024, Unreported. 

THE APPEAL

6.	The appellant appeals against that order. There are six grounds of appeal, but in essence, the appellant raises two grounds. 

7.	The lawyer for the eighth respondent raised as a preliminary matter that the grounds of appeal do not meet pleading requirements as they are submissions guised as appeal grounds. It is apparent that the grounds as drafted were not as brief as O 7 r 9(c) of the Supreme Court Rules 2012 contemplates. However, the grounds particularise the contentions of the appeal such that the respondents were able to prepare their arguments and the court was able to be informed of the issues to be determined: Chris Haiveta v Paias Wingti (No 2) [1994] PNGLR 189. 

8.	The preliminary submission of the respondent that the appeal be struck out as incompetent on this basis is refused. The appeal will be considered with reference to the essence of the appellant’s contentions, an approach that was also adopted by the parties in their submissions. Each of the contentions, as revised grounds of appeal, will be considered in turn. 

GROUND 1: There was no jurisdiction to summarily dispose of the proceedings due to the claim being based on fraud per O 12 r 37(b) of the National Court Rules 

9.	The appellant’s claim was plainly one that had a basis in contended fraud, and further, in malicious prosecution. The primary judge herself acknowledged this, observing that “in the substantive proceedings, the plaintiff alleges fraud regarding the issue of title...” (at [30]). 

10.	The primary judge summarily disposed of the proceeding pursuant to 
O 10 r 9A(15)(2)(a) and (b) of the Rules. The appellant contends that there was no jurisdiction to do so given O 12 r 37 precludes summary disposal of a claim that is at least in part a claim based on an allegation of fraud. Order 12 r 37 further restricts application of the division to a claim including malicious prosecution. It provides:

Rule 37 	Application of Division 4 

This Division applies to all proceedings except proceedings which include – 

(a)	a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or 
(b)	a claim by the plaintiff based on an allegation of fraud; or 
(c)	a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person. 

11.	The appellant’s contention is misconceived as the primary judge did not enter summary judgement, nor dismiss the proceeding generally, under Order 12, Division 4. The primary judge considered the issue of summary disposal and disposed of the proceeding for want of prosecution pursuant to 
O 10 r 9A(15)(1)(a) and (b) of the Rules which relevantly provides:

(2) The Court may summarily dispose of a matter in the following situations:

(a)	for want of prosecution since filing the proceedings or since the last activity on the file; or 
(b)	for a failure to appear at any of the listing or directions hearing by a party or his lawyer. 

12.	The primary judge considered the issue of summary disposal with reference to the well established principles provided in Tumbiako v Kayo (2023) SC 2943 and exercised the discretion to accede to the respondent’s application. 

13.	Nonetheless, her Honour did still give consideration to the claim being one based in an allegation of fraud, despite it being unnecessary to do so in a strict application of the Rules. The primary judge acknowledged this by ‘taking heed’ of the warning in Lord & Company Ltd v Inapero (2014) SC 1624 as to the caution to be applied in summary determination of claims alleging fraud: Lord & Company Ltd v Inapero at [58], [59]. 

14.	Further, as Lord & Company Ltd v Inapero provides at [52]:

As a general proposition, summary disposal of a matter pursuant to Order 10 Rule 9A (15) is not summary judgment within the meaning of Order 12 Division 4 National Court Rules, and Order 12 Rule 37(b) is not relevant to summary disposal of a matter in those circumstances.

15.	The primary judge plainly had jurisdiction to consider summary disposal in accordance with O 10 r 9A(15)(2)(a) and (b) of the Rules. There was no error of law, and this ground of appeal is dismissed. 

GROUND 2: The primary judge erred in law and/ or fact in exercising the discretion to summarily dispose of the claim for want of prosecution 

16.	This ground contains four particulars, being:

-	The plaintiff was present and had previously filed submissions; 

-	There was no intentional and inordinate delay by the plaintiff and his lawyer in prosecuting the claim, with the plaintiff’s lawyer’s pending certification a reasonable explanation; 

-	The plaintiff and his lawyer had previously prosecuted the claim at trial, but the trial was declared a mistrial and re-set; and 

-	It was an error to find the delay caused injustice or prejudice to the defendant. 

17.	The appellant does not articulate any particular error in law by the primary judge, with the appellant’s submissions directed towards a contention that there was error by the primary judge in finding that there was a want of prosecution. It is submitted that the appellant had diligently prosecuted the matter and that he “insisted to proceed”. 

18.	The respondents submit that there was a want of prosecution, with no appearance by the legal representative and the appellant not in a position to proceed. It is submitted that the primary judge correctly and appropriately exercised the discretion to summarily dispose of the matter and that the appeal is without merit. 

19.	The primary judge plainly considered and applied correct authority as to the issues raised (Tumbiako v Kaiyo; Viviso Seravo v Jack Bahafo (2001) N2078; Ahmadiyya Muslim Mission v Bank South Pacific (2005) N2845; John Niale v Sepik Coffee Producers Ltd (2004) N2637), and was guided by whether: 

(a)	the plaintiff’s default is intentional or is allowing for an inordinate and inexcusable delay in a prosecution of his or her claim;
(b)	there is no reasonable explanation given by the plaintiff for the delay;
(c)	the delay has caused injustice or prejudice to the defendant;

and further that:

(d)	the Court should specifically look at the conduct of the parties and their lawyers; and 
(e)	the duty of the Court is to give paramount consideration to the dispensation of justice. 

20.	The primary judge considered these with reference to the procedural background of the matter and the matters raised by the plaintiff. The procedural background of the matter involves: 

(a)	the proceeding was first initiated in August 2021;

(b)	a trial was heard in 2022 and decision was reserved;

(c)	the trial judge who heard the trial became unavailable before decision was made;

(d)	the appellant’s representative made contact with the registry and sought a listing to progress the matter; 

(e)	a mistrial was ordered, and the matter came before the primary judge for directions; and

(f)	on 21 November 2023 the parties, with the appellant legally represented, appeared and directions were made listing the matter in February 2024 for oral submissions at a trial on liability to be based on the affidavit material filed and written submissions filed.

21.	On 19 February 2024, the appellant appeared in person as his legal representative had not received his practising certificate. An adjournment was sought by the appellant because of this. For the respondents, only the representative for the fourth respondent appeared. This representative did not oppose the matter being adjourned, acknowledging that they had yet to file the submission from the previous trial that they were relying on at the retrial. There was no explanation given to the court as to the absence of the representatives for the other respondents. 

22.	It warrants emphasising that on this hearing 19 February 2024, at what was the first trial listing following the mistrial, none of the lawyers appearing in the proceeding were in a position to proceed. 

23.	The matter returned for trial hearing on 18 March 2024. The appellant again appeared. His legal representative also appeared, but sought an adjournment as his practising certificate was still not available. Counsel for the third, fifth, and sixth appeared, as did counsel for the seventh and eighth respondents. There was no explanation as to the absence of the representative for the first and second respondents. 

24.	At this hearing, counsel for the respondents were not opposed to a short adjournment to enable the appellant’s representative to secure his practising certificate. The trial was adjourned, with a direction that the respondents were at liberty to move on an application to summarily determine the proceeding on the next occasion if the appellant’s lawyer remained without a practising certificate. A direction was also given that the trial was to proceed on submissions. 

25.	This was the circumstance at the next listed hearing of the matter, on 8 April 2024. That is, the appellant’s lawyer was yet to secure his practising certificate. The appellant appeared in person, with no legal representative in attendance. Counsel for the third, fifth, sixth, seventh, and eighth respondents were present. The appellant informed the court that he had not had recent contact with his legal representative, and counsel for the respondents made an application for summary disposal. The application was directed towards the failure of the appellant’s legal representative to secure a practising certificate and to appear at the hearing. The respondents submitted that in any event, no adjournment should be granted and that the appellant was not genuinely ready to proceed with the trial as he had no paperwork with him. 

26.	The appellant addressed the court, and responded to the submission by the respondents to summarily determine the proceeding. The appellants submissions included that “I would like this trial to proceed”, “I can take on from here...”, “I will ask this court to let the trial proceed”, and “I will ask this court to adjourn the case one more time or either let the trial proceed”.  He informed the court that he had paid his lawyers fees, and did not have an explanation why his lawyer had not appeared. The appellant finalised his submissions stating:

I am very interested. Every time, I am present in the court...instead of dismissing this case, I am not pleased with that. You can see that decision done by her [the previous trial judge], that is the audio record or something, and rule on that. Otherwise, I am asking this court, this is my case so can adjourn it for the last time so that I can make a change of lawyer and get another one in. Although I do not have the documents in place, I can proceed with the trial because I have been suffering too much in here. I am asking this court. 

27.	The primary judge reserved the decision on summary disposal, with the decision and reasons to grant the application given on 19 April 2024. 

28.	The reasons reveal careful consideration in balancing the interests of all of the parties, and a commitment to reflecting the interests of justice. This includes that the primary judge gave appropriate consideration to authorities that provide that a lawyer’s inaction is not a reasonable explanation for excusing delay in the conduct of a case. Her Honour also appropriately recognised that delay “costs litigants time, money and stress”. 

29.	As to the appellant’s request to adjourn the proceeding, the primary judge found it to border on intentional default and failure to prosecute the claim, and that any adjournment would result in unnecessary or inexcusable delay of the trial. Her Honour found that the appellant defaulted by failing to prosecute his claim on 8 April 2024. 

30.	The primary judge’s reasons then reveal a careful and comprehensive consideration of the matters relevant to inform the decision as to summary disposal. Appellate courts must be slow to interfere with the exercise of such a discretion, “unless the exercise of that discretion is clearly wrong”: Lord & Company Ltd v Inapero at [56].  

CONSIDERATION

31.	While cautious to interfere with the exercise of the discretion that occurred, we are persuaded that the exercise of the discretion was clearly wrong. 

32.	A careful consideration of the transcript from the proceedings reveals that what was not afforded to the appellant was an opportunity to prosecute the proceeding upon refusal of his request for an adjournment. There was not, contrary to the finding of her Honour, a failure to prosecute the claim. Rather, there was not an opportunity afforded to the appellant to prosecute the claim upon an adjournment being refused. 

33.	The primary judge did give careful and comprehensive consideration as to whether to summarily dispose of the proceeding for want of prosecution. However, when doing so, the primary judge conflated the issue as to want of prosecution with the decision to refuse the appellant’s request for an adjournment of the proceeding. The primary judge appropriately refused the request for an adjournment of the trial, in circumstances where there was no affidavit material, but thereafter did not afford the appellant procedural fairness to proceed with the trial on the listed date. 

34.	The trial was one to be based on evidence and submissions already filed. The appellant expressed a willingness to proceed in this manner. While the respondents submit that the appellant was not genuinely ready to proceed to trial given he had sought an adjournment, and that he had no paperwork with him, it was a matter for the appellant as to the manner in which he sought to present his case if the adjournment was refused. He had available to him the written submissions already filed. The difficulty is that the appellant was not afforded an opportunity to do so, despite his apparent willingness to proceed. The appellant had previously prosecuted the matter to trial, he was present at all listings for the subsequent trial, he had submissions available to rely on, and he expressed his plea to the court to proceed with the trial. 

35.	While the primary judge undoubtedly applied the relevant law and principles correctly in considering summary determination of the proceeding, an important initial step did not occur in informing the appellant as to the outcome of his application for an adjournment before considering the issue of want of prosecution. Had this occurred, it would have become apparent that there was not a want of prosecution by the appellant, nor was there a failure to appear by a party to the proceeding. Order 10 r 15(2)(a) and (b) of the Rules would not have been enlivened. 

36.	It is trite that it is critical that the court afford litigants, particularly when 
self-represented as the appellant became during this proceeding, an opportunity to be fully heard. The primary judge erred in not affording the plaintiff such an opportunity. Accordingly, the summary disposal was based on an erroneous conclusion that there was a want of prosecution, and the exercise of discretion erred. 

37.	The second ground, or grounds as articulated in the notice of appeal, is upheld. 

ORDERS

(1)	The appeal is allowed and the orders made on 19 April 2024 in proceeding WS No 370 of 2021 are quashed. 

(2)	The proceeding WS No 370 of 2021 is reinstated and remitted to the National Court for directions to have the matter fixed for trial before another judge.  

(3)	Costs of the appeal to be borne by the respondents. 

________________________________________________________________
Lawyers for the appellant: Jerewai Lawyers
Lawyers for the third, fifth and sixth respondents: Solicitor General 
Lawyers for the fourth respondent: Nova Lawyers
Lawyers for the eighth respondent: Young & Williams Lawyers