SC2826

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 29 OF 2024

BETWEEN
LADY MARGARET YUWI
Appellant

AND:
JACOB POPUNA
as the Public Curator and Official Trustee
First Respondent

AND:
PUBLIC CURATOR OF PAPUA NEW GUINEA
Second  Respondent

WAIGANI: KARIKO J, TUSAIS J, KOSTOPOULOS J
29 OCTOBER, 12 DECEMBER 2025

SUPREME COURT APPEAL – Appeal against dismissal orders of judicial review — Estates Administration — Public Curator — Exhaustion of statutory remedies — Whether a beneficiary challenging a Public Curator’s distribution decision must first proceed under Public Curator Act s. 34 before invoking judicial review; construction of “administering under this Act” in s. 34 relative to administration under Wills, Probate & Administration Act 1966 (WPAA) s. 38 and O 19 NCR; whether prior steps under Public Curator Act s. 33 suffice; deceased intestacy s. 10 of Public Curator Act – exercise of trial judge’s discretion to dismiss proceedings did not violate House v. King test.

DECEASED INTESTACY — Distribution in polygamous context — Relationship between WPAA Div II.5 ss. 35D–35E: distribution in accordance with custom and certification; and WPAA Div III.6 ss. 81–84: residuary estate — Whether Public Curator’s decision on 31 July 2018 to sell Hohola property and split proceeds between the appellant (widow) and eldest son was ultra vires for failure to obtain certification under WPAA s. 35E and/or inconsistent with WPAA s 84 — Onus to obtain customary certification — whether on claimant or Public Curator – appellant must exhaust all statutory remedies for disputes and grievances pursuant to s.32-34 of PCA before seeking leave of the National Court to commence Judicial Review proceedings. 

The appellant applied for judicial review in the National Court regarding the distribution of a property owned by her deceased husband whose estate is being administered by the Public Trustee (formerly the Public Curator).  The application was dismissed for being an abuse of process, which decision was then appealed to the Supreme Court. 

Held

Per Kostopoulos J (with whom Kariko J and Tusais J agreed)

1.	The trial judge was entitled to and did find correctly that judicial review was unavailable as a procedural step for the National Court to intervene or substitute the decision of the Public Curator when the dispute mechanism provisions under the Public Curator Act, principally ss 32-34, had not been exhausted by the appellant. 

2.	The trial judge appropriately exercised her discretion to dismiss the proceedings in the circumstances and therefore the court is unable to interfere with the trial judge’s decision.

3.	Appeal dismissed with costs.

Cases cited
Angui v. Wagun [2011] PGNC 305; N4194
Avei v Maino [2000] PNGLR 157
Gabi v. Nate [2006] PGNC 178, N4020
Helifix Group of Companies Limited v Papua New Guinea Land Board [2012] SC1150
Judicial Review Application by Andrew Posai [1995] PNGLR 350
Kalinoe -v- Paul Paraka Lawyers [2014] SC1366.
Kariko v. Korua (2020) SC1939 
Koim v. O’Neil [2016] N6558
Kundalin v Dau [2023] PGSC, SC2377
Kwayok v. Singomat [2017] N7079
Micah v. Lua (2015) SC1445
Nari v. Public Trustee [2023] PGNC 261; N10421
Owa v. Popuna [2015] PGNC 206, N6111
Paul v Kispe [2001] PGNC 132; N2085
Sammy Lodge Ltd v. Sipison (2024) SC2618
Telikom PNG Ltd v Independent Consumer and Competition Commission & Digicel (PNG) Ltd [2008] PGSC 5; SC906
Associate Provincial Pictures House Ltd -v- Wednesbury Corporation [1948] 1KB 223
Carltona v Commissioner of Works [1943] 2 All ER 560.
Council of Civil Unions v. Minister of Civil Service [1985] AC 374
House v. The King (1936) 55 CLR 499
Sargent v. ASL Developments LTD [1974] HCA 40; (1974) 131 CLR 634
Woollett v. Minister of Agriculture & Fisheries (1955) 1 QB 103 at 120 – 134.

Counsel
Mr. Jimmy Apo for appellant 
Mr. Frank Aki for first & second respondents  

JUDGMENT

1. KARIKO J: I have had the benefit of reading the draft opinion of my brother Kostopoulos J, and I agree with his Honour’s instructive reasoning, proper conclusions and appropriate orders proposed.

2.   I add a few comments addressing the interplay between ss 10, 32 and 34 of the Public Curators Act (PCA), s 38 of the Wills Probate and Administration Act (WPAA) and O19 of the National Court Rules (NCR) as they apply to the core issue in this appeal: whether the appellant failed to exhaust available statutory remedies to address her grievances regarding the administration of her late husband’s estate by the Public Trustee (formerly the Public Curator).

3. Section 10 of the PCA allows the Public Trustee (previously known as the Public Curator) the statutory right to apply to the National Court or a judge in certain circumstances for O19 of the NCR “an order to administer the estate of any deceased person leaving property within the jurisdiction”. One of the circumstances is where no application has been made to administer the estate within 3 months of the death of the deceased; s 10(1)(c).

4.	It is in such circumstances that the Public Trustee applied under s 38 of the WPAA via proceedings WPA No. 3 of 2017 for the grant of letters of administration, which is “an order to administer the estate of a deceased person”, the late Sir Matiabe Yuwi who left property in this country, including the disputed property at Hohola NCD. 
 
5.	Order 19 of the NCR addresses the procedure for filing an application for grant of letters of administration.

6.	 Section 38 of the WPAA and O19 of the NCR therefore provide the procedural jurisdictional basis for the application for the letters of administration.

7.	Section 32 of the PCA relevantly provides that disputes in relation to administration of estates pursuant to orders made under s10 shall be decided by the National Court while s 34 of the PCA states that complaints against the Public Trustee regarding administration of an estate under the PCA may be referred by way of an application to the National Court for an order to be issued against the Public Curator to show cause.

8.	The appellant had a dispute and a complaint regarding the administration of the estate of her late husband which was being administered by the Public Trustee pursuant to an order he obtained under s 10 of the PCA and s 38 of the WPAA in proceedings filed in accordance with O19 of the NCR.

9.	The appellant’s dispute and complaint regarding the distribution of the property at Hohola, ought to have been taken up in the National Court in accordance with s 32 and/or s 34 of the PCA, and not by way of judicial review.

10.	TUSAIS J: I have read the draft opinions of my brothers Kariko J and Kostopoulos J, and I wholly agree with them and have nothing further to add.

11.	KOSTOPOULOS, J: This is a substantive appeal from the judgment of the National Court of Justice in OS (JR) No. 550 of 2019 delivered on the 7 June 2024 before her Honour Justice Purdon-Sully dismissing the appellant’s application for judicial review of the Public Curator’s decision dated 31 July 2018 concerning the distribution of the intestate estate of the late Sir Matiabe Yuwi. 

12.	A Notice of Motion was filed by the appellant in this Court on 3 July 2024.

13.	The Public Curator made an administrative decision on 31 July 2018 to dispose of the subject property by selling it at the current market value at the time. 

14.	The proceeds of the sale were to be distributed amongst the two disputing parties, that is, the appellant who is one of the surviving widows in a polygamous marriage with the deceased and Peter Yuwi, the eldest son of the first wife of the deceased. 

15.	The other wives, children and brother of the deceased as potential beneficiaries of the estate did not take issue with the decision of the Public Curator and endorsed his decision.  

16.	The trial judge held that the appellant failed to exhaust the statutory process under the Public Curator Act (PCA) sections 32-34, determining that the proceeding were an abuse of process and for other reasons relevant to the operation of the Wills Probates and Administration Act (WPAA) in these proceedings. 

17.	The appellant filed a Notice of Motion commencing the appeal on 3 July 2024. 

18.	The appeal proceeded with the appellant’s written extracts of submission dated 10 October 2025 and supplementary extracts of submissions dated 14 October 2025 and oral arguments. 

19.	The first and second respondents filed their submissions on 10 October 2025 and made further oral submissions before the Court.  

20.	For ease of reference and convenience, the Court will refer to Lady Margaret Yuwi in this judgment as the appellant, Jacob Popuna as the first respondent and the office of the Public Curator as second respondent in this appeal. 

21.	At times, the Court will refer to the parties as the plaintiff and first and second defendants as appropriate for emphasis in the judgment relevant to the findings of the court below.

22.	References in this judgment to documents in the Appeal Book before this Court will be identified as ‘AB’ with the relevant page(s) or paragraph(s) numbering. 

BACKGROUND

23.	The appellant is the third wife in a polygamous of the deceased the late Sir Matiabe Yuwi who died intestate. 

24.	The appellant and the deceased were married in accordance with the rites and customary practices of the Huli people in 1974. They had one son and other adopted sons with grandchildren. 

25.	The couple acquired the Hohola property Section 3, Allotment 6 (Vol 10, Folio 2294) Wards Road Hohola, NCD (herein “Hohola property”) in 2001 and cohabited the property, which is the subject of these proceedings, from 2001 until the deceased’s death on 6 May 2014.

26.	The appellant Lady Magaret Yuwi asserts matrimonial rights over the property in accordance with Huli custom including her financial contribution in purchasing the property between years 2001 and 2003 and also in developing the property. 

27.	The appellant asserts long-term cohabitation with the deceased and continued occupation of the Hohola property since the deceased died intestate.

28.	The Court refers to and relies on the facts and history of these proceedings set out in the affidavit of Jacob Popuna (first respondent) sworn on 18 December 2019 as an aid to understanding the progress of the matter before the courts. 

29.	The facts were examined and appear in the judgment of Purdon-Sully J in OS(JR) 550 of 2018 (the decision the subject of this appeal).

30.	This Court will refer to those facts and background, when necessary, to examine the facts in this judgment.  

31.	The first respondent commenced proceedings titled WPA No 3 of 2017 on 24 November 2017 in the National Court seeking a grant of Letters of Administration of the intestate estate of the late Sir Matiabe Yuwi. 

32.	On the 24 November 2017 Kandakasi J, (as he then was) in WPA No. 3 of 2017, granted Letters of Administration of the estate of the late Sir Matiabe Yuwi to the Public Curator in the following orders: 

THE COURT ORDERS BY CONSENT THAT:

1.	The Public Curator be the Administrator of the Intestate Estate of Late Sir Matiabe Yuwi.

2.	The Letters of Administration application filed on 08th February 2017 by the Public Curator be amended to include further verification and disclosure of the Deceased Estate Inventory.

3.	All beneficiaries are required to comply with term 2 of these orders by disclosing the deceased assets, interests and or properties both real and personal that are currently under their custody to the Public Curator for purposes of realization and subsequent deceased Estate Administration.

4.	Beneficiaries failing to comply with the foregoing orders will result in the Public Curator Declining Trust pursuant to Section 8 (1) of the Public Curators Act 1951.

5.	The matter is fixed to return to the Court on 15th December 2017 for the parties to come with the Amended Letters of Administration Application for further directions.

6.	The time for the entry of these orders is abridged to take place forthwith upon the Court signing the Orders.

33.	On 15 December 2017 the Court in proceedings WPA No. 3 of 2017 ratified and endorsed the orders of 24 November 2017 with minor variation and amendments to term 5 of the orders as follows:

THE COURT ORDERS THAT:

1.	Pursuant to the Agreement of the parties and in any event in the light of the parties not being able to agree on an amended Letters of Administration the Court confirms the Orders that were made on 24th November 2017 and formally entered on 04th December 2017 except only for term 5 of those orders which is now varied to read, the administration of the Deceased Estate shall proceed on the basis of the inventory of the Deceased Estate per the affidavit of Jacob Poguna sworn on 06th February 2017 and filed on 06th February 2017.

2.	For clarity, this matter is concluded by the foregoing orders except only for the Deceased Estate Administrator to furnish his report on the Administration of the Estate with the first report being due to this Court on 13th June 2018.

3.	The time for the entry of these orders is abridged to take place forthwith upon the Court signing the Orders.

34.	On 4 December 2017, prior to the sealing of the Letters of Administration, the appellant wrote to the Public Curator opposing disposal of the Hohola property by invoking her rights under Huli customary laws with reference to her financial contribution in the purchase of the property between 2001 and 2003 including the regular upkeep of the property until the above orders were made by the National Court in December 2017. 

35.	The Letters of Administration were sealed on the 7 June 2019 in the following terms: 
 
LETTERS OF ADMINISTRATION

BE IT KNOWN that Administration of all and Singular, Real and Personal estate of Sir Matiabe Yuwi, late of Allotment 06 Section 03, Hohola, National Capital District, Papua New Guinea, Retired Politician, Deceased Intestate, who died on the 06th day of May 2014 was granted by the NATIONAL COURT OF JUSTICE of Papua New Guinea at WAIGANI to the Public Curator & Official Trustee of PNG as per the National Court Order obtained on the 24th of November 2017 and formally entered on the 04th December 2017 for the Public curator to administer same by paying just debts of the said deceased, and to distribute the residue of the estate according to law.

Given under the Seal of the Court at Waigani the 07 day of June 2019.

THE CORRESPONDENCE EXCHANGED IN THE DISPUTE BETWEEN LADY YUWI AND THE PUBLIC CURATOR RESULTING IN COURT PROCEEDINGS IN THE NATIONAL COURT

36.	On 6 May 2014 the protracted history of the matter leading to the proceedings in the Court below commenced 11 years ago when Sir Yuwi died at the age of 76 without a formal will.

37.	On 4 December 2017 Apo & Co Lawyers acting for the appellant sent a letter to the Public Curator stating, among other things, that:

“We refer to the terms of the consent orders of his Honor Justice Kandakasi and advise of Lady Margaret’s position.

Lady Margaret will not consent to the distribution of the Hohola property under any circumstances…”

38.	On 15 December 2017, the Court made orders appointing the Public Curator the Administrator of the deceased estate.  

2018 

39.	On 14 June 2018 the Public Curator wrote to the lawyers for the appellant and stated, among other things, that:

“.... We advise, Public Curator is now the lawful Administrator of the subject deceased estate...... 
..... the matter now stands as concluded except for the Public Curator to furnish his report on the Administration of the Deceased Estate......

40.	The Public Curator’s letter also invited the appellant to attend a beneficiaries’ meeting with him on 22 June 2018 and advised her that he hereby gives notice of the said meeting to assist him to reach an agreement with all the beneficiaries for the distribution of the assets of the estate for their family’s wellbeing.

41.	On 5 July 2018 the Public Curator wrote to the lawyers for the appellant and stated, amongst other things, that Lady Yuwi did not attend the first beneficiaries’ meeting on 22 June 2018 and at the next proposed meeting the appellant should attend and set down for 20 July 2018 at his office. 

42.	On 31 July 2018 the Curator made his decision and served the decision on the disputing parties to the estate where he provided reasons for his decision including:

“…there were other deceased properties disposed (sic) by Newman Yuwi and Margaret Yuwi without the involvement of the Public Curator which is unlawful…

…Thus, the best possible option is we propose to sell the Hohola property and the proceeds will be divided amongst the widow Margaret Yuwi and Peter Yuwi…”

43.	On 10 October 2018 following the orders of the Court on 15 December 2017, the Public Curator issued an Eviction Notice on all occupants of the property to vacate within 14 days which included the appellant. 

44.	On 31 October 2018 the Public Curator wrote to the lawyers of the appellant seeking disclosure of the original title deeds of the property and seeking the formal Notice of Disclosure dated 1 November 2018 be complied with by the appellant.

45.	On 7 December 2018 orders were made by Chief Justice Salika as follows:

“ORDER 
1.	“The Second and Third Defendants are restrained from evicting or taking out evicting orders against the appellant on the Hohola Property.

2.	The Public Curator to obtain all affidavits from all the Children of the deceased as their position on the Hohola property and the extent of the interest.

3.	Public Curator to bring all the disputing parties and start negotiating process for the settlement of the Hohola property and Tari Properties.

4.	The Public Curator conduct into custom in the Hela area on the distribution on estate in case of interstate in the polygamous setting.

5.	Parties to return on the 8 February 2019 at 9:30am.”

2019

46.	On 7 June 2019 the Letters of Administration were ordered in WPA No. 3 of 2017 by the Registrar of the National Court at Waigani for the Public Curator to administer the estate of late Sir Matiabe Yuwi.

47.	On 21 March 2019 the Public Curator wrote to the Registrar of Titles seeking a replacement for the title of the subject property as the ‘original title’ was misplaced or destroy (sic) prior to the demise of Late Sir Matiabe Yuwi with the application for the new title published in the National Gazette on 29 March 2019. 

48.	On 9 July 2019 lawyers for the appellant wrote to the Metropolitan Commander for NCD advising him that no action should be taken by the local police to evict the appellant as the Public Curator’s powers were being challenged in court    proceedings. \

49.	On 15 November 2019 the lawyers for the appellant wrote to the Registrar of Titles advising the Registrar that he was acting for the appellant and given that a replacement title had been issued, notwithstanding that Lady Yuwi had the original title deed, to protect his client’s interests he submitted a duly completed caveat to protect the property regarding its registration urgently noting “Lady Margaret Yuwi” as the caveator.

50.	On 22 November 2019 the lawyers for the appellant wrote to the Director of National Frauds and Anti-Corruption Directorate advising the director, amongst other things, that the Public Curator had ‘allegedly’ been engaged in fraudulent misrepresentation concerning the lost or destroyed title deed for the property and the matters were before the National Court.

THE MULTITU OF PROCEEDINGS COMMENCED BY THE APPELLANT IN THE NATIONAL COURT OF JUSTICE 

51.	The appellant initiated a cornucopia of proceedings in the National Court of Justice to prosecute the appellant’s rights.

52.	Although it will contribute to the prolixity of this judgment, it is necessary to set out the substantive parts of the appellant’s proceedings in order to understand the outcome of previous attempts to bring finality to the litigator’s 9-year odyssey of seeking justice for his client. 

Proceedings OS(JR) No. 550 of 2019

53.	On 8 March 2019 the Application for leave to Appeal filed on 9 November 2018, was withdrawn by the appellant (Lady Yuwi).

54.	On 13 August 2019 the appellant filed an originating summons against the first and second respondents and the Independent State of Papua New Guinea as the third defendant in the National Court in Waigani. 

55.	The appellant claimed in the summons the following:

“The Plaintiff claims:

1.	Leave for Judicial Review to review the decision of the First and Second Defendants made on the 31st of July 2018 as to distribution of the property described as Section 3 Allotment 6 Ward Road Hohola (herein "interstate property") of the late Sir Matiabe Yuwi on the grounds that: 

a] The decision is ultra-Vires for breaches of section 35D and 35E of the Wills Probate & Administration Act. 

b] is unfair under the Wednesbury Principle 

c] No right was accorded to the Plaintiff and all other siblings or beneficiaries to be heard before the decision as to distribution was made in relation to the distribution of the interstate property prior to or at the time of the said decision.”

56.	The appellant filed a verified statement in the National Court setting out the facts to support the summons that also appears in this appeal.

57.	On the same day, that is, 13 August 2019, the appellant swore an affidavit elaborating and expanding on the statement filed in the National Court with annexures to establish her interests in the deceased’s estate, the death certificate to establish that her late husband had died, Court orders made regarding the Letters of Administration and the application of the Public Curator to administer the estate highlighting her grievances with the orders and ultimately the Eviction Notice served on the appellant by the Public Curator dated 10 October 2018 to remove her from her home.

58.	The above events in seriatim led to the appellant filing the summons on 13 August 2019 in the National Court to resist the eviction and challenge the Letters of Administration and to air her grievances against the actions of the Public Curator. 

59.	On 21 October 2019 a further affidavit was filed by the appellant attesting to and setting out her complaints regarding the proceedings in the following evidence: 

“…
2. On the 15th day October 2018, I filed a writ of summons WS No 1259/201 to claim my Hohola Property under administration by the Public Curator on the basis of custom.

3. On the day of 25th of October 2019, this Writ of Summons was dismissed at the hearing of an urgent application seeking restraining orders against eviction on the property by the Public Curator on the basis that the one of the Defendant was not served in accordance with the directions issued by the Judge in chambers for inter party hearing.

4. Because of the terms of the orders dismissing the initial proceeding (when it fact it would have been the application), we filed another Writ of Summons WS 1364/ 2019 in similar terms as the first one because of the effect of the official formal record of orders of the Court.

5. This then was also dismissed as an abuse of process during an application to obtain urgent restraining order on the 24th April 2019 on the basis that the above proceeding remains.

6. We can obtain the transcript of the Courts of the 25th day of October 2018 and 24th of April 2019 but I can depose to the facts knowing the consequences that if I lie, that the proceedings were basically dismissed on technical grounds and not on the merits of any application or any substantive grounds…”

Proceedings WS No. 1258 of 2019 and WS1364 of 2019 

60.	It seems clear from the further affidavit of the appellant referred to above, that further proceedings had been commenced in a hive and flurry of activities by her lawyers as follows.

i.	On 9 October 2018 a Writ of Summons in WS No 1258/2019 filed on 15 October 2019 as a claim to the Hela Property under administration by the Public Curator on the basis of customary law. 

ii.	On 25 October 2018 the Writ of Summons was dismissed at the hearing of an urgent application seeking to restrain her eviction from the premises.

iii.	On 31 October 2018 WS 1364 of 2019 a Writ of Summons and Statement of Claim was filed by the appellant as a substitution to the Writ of Summons for the original Writ of Summons. OS JR 550 of 2019 being dismissed by the Court in similar terms to the original Writ of Summons which was also dismissed by the Court as an abuse of process. 

iv.	On 31 October 2018 a Notice of Motion was filed by appellant in WS 1364 of 2018 seeking, among other things, an urgent restraining order against the Public Curator from evicting the appellant from her premises.

v.	On 14 March 2019 the urgent application referred to above was dismissed by the Court as an abuse of process and James Apo appearing for the plaintiff was ordered to personally pay the costs of the proceedings being dismissed.

61.	On 28 November 2019, the Registrar of the National Court made the following orders to case-manage the original Writ of Summons as follows:

1.	“The Plaintiff is given leave to proceed by way of Judicial Review against the Defendants' decision of 31 July 2019 for distribution of the property; 
2.	The Plaintiff is to serve all documents including this order and the substantive motion on all interested parties as soon as practicable; 
3.	The Matter will return to Court on Monday 10th of February 2020 at 9:30am for Directions; 
4.	Plaintiff is at liberty to apply before then for stay or injunctions 
5.	Costs be in the cause.”

62.	On 3 December 2019 the appellant filed a Notice of Motion in dismissed proceedings OS(JR) 550 of 2019 to in effect resurrect these proceedings seeking declaration that the respondents acted ultra vires under the Wills, Probate and Administration Act, certiorari and mandamus orders to set aside the actions taken by the Public Curator to administer the properties of her late husband. 

63.	On 5 December 2019 the appellant filed yet a further Notice of Motion in OS (JR) 550 of 2019 seeking the orders made by the Court concerning the property, a restraining order against the Public Curator in disposing or selling the property and attempting to evict her from the property and other orders supported by an affidavit in support of the motion sworn on 5 December 2019 by the appellant with annexures. 

64.	On 17 December 2019 the following orders were made by the Court:

1.	“The Plaintiff's Motion filed on the 5th of December 2019 is adjourned 19th of December 2019 at 9:30am;
2.	The Plaintiff is to give notice of adjourned date to all parties close of business on Monday 16th of December 2019.
3.	In the interim, pursuant to Order 4 Rule 49 of the National Court Rules, the Defendants are restrained from dealing with the property described as Lot 3, Section 6, Wards Road, Hohola until 19th of December 2019.”

65.	On 19 December 2019 in proceedings OS 550 of 2019 the respondents filed a Notice of Motion seeking orders for the dismissal of the appellant’s proceedings and on alternate grounds including that the proceedings were an abuse of the court’s process or that the proceedings were frivolous or vexatious under the National Court Rules.

66.	The above Notice of Motion was supported by the facts set out in the affidavit of Jacob Popuna from the Public Curator’s office dated and sworn 18 December 2019, setting out the facts attested to by the Public Curator in the matter including correspondence between the parties.

67.	On 20 December 2019 the Notice of Motion filed by the respective parties was adjourned by the Court until 13 February 2020 and the restraining orders remained in place until 13 February 2020 representing the next hearing date of the motions. 

68.	On 2 July 2020 the matter came before Miviri J in the proceedings OS (JR) No 550 of 2019 and the motions were heard in the National Court in Waigani.

69.	On 2 July 2020 his Honour Justice Miviri, made the following critical findings in his published judgment:- 

i.	The current action in its present form with determination in pending WS 1258 of 2018 is an abuse of process and res judicata (paragraph 12 of the judgment).

ii.	The matter WPA (CC2) 03 of 2017 is pending to restrain the defendants with the plaintiff not discontinuing one to maintain the other with both in the same civil jurisdiction of the National Court but in two different tracks of the Court (paragraph 16 of the judgment).

iii.	Applying Telikom PNG Ltd v Independent Consumer and Competition Commission & Digicel (PNG) Ltd it is clear the plaintiff has committed an abuse of the Court’s process in the institution of these proceedings (OS (JR) No 550 of 2019) whilst that of proceedings WPA (CC2) 03 of 2017 is still open and pending (paragraph 17 of that judgment).

iv.	There is no serious purpose or value in the maintenance of OS (JR) 550 of 2019 as an abuse of process and is plainly frivolous and vexatious and must be dismissed (paragraph 18 of the judgment).

v.	Further orders made include a personal costs order against the plaintiff’s lawyers James Apo on an indemnity basis and the caveat lodged by the plaintiff on 15 November 2019, is removed from the records in relation to the property (paragraphs 19-21 of judgment).

70.	The final orders of the Court dated 3 September 2020 following Miviri J’s judgment were:- 

i.	"The motion is granted to the applicant defendants.
ii.	The proceeding is an abuse of court process.
iii.	The proceedings are dismissed in its entirety forthwith.
iv.	Costs are on indemnity basis to be paid by the Plaintiff and her lawyer Mr. James Apo personally occasioned by this dismissal.”

71.	The decision of Miviri J was the subject of an appeal by the appellant.

72.	On 29 March 2022 in the Supreme Court Appeal proceedings before Kandakasi DCJ, Anis and Dingake JJ, the appellant court upheld the appeal of the decision of Miviri J in the National Court by quashing the decision resulting in the following orders:

i.	“The appeal is upheld.
ii.	The decision of the National Court in proceedings OS(JR) 550 OF 2019 Lady Margaret Yuwi vs Jacob Popuna as the Public Curator and Official Trustee & Ors the subject of this appeal is quashed.
iii.	The proceedings OS(JR) 550 OF 2019 Lady Margaret Yuwi vs Jacob Popuna as the Public Curator and Official Trustee & Ors is re-instated.
iv.	The parties will return to the National Court for a hearing on the substantive review application.
v.	Each party to bear their own costs.”

73.	Once proceedings No 550 of 2019 were reinstated in the National Court in Waigani after the successful appeal referred to above, the Public Curator filed a Notice of Motion in those proceedings on 5 December 2022 seeking orders to dismiss the proceedings again on the basis of a want of prosecutions and an abuse of the Court’s process.

74.	The Notice of Motion filed by the Public Curator was supported by the Affidavit sworn by Jacob Popuna of the Public Curator’s office dated 5 December 2022 retelling the events previously set out in this judgment.

75.	On 23 February 2023 Joseph Rara on behalf of the appellant filed an affidavit in response to the Public Curator’s principal affidavit in support of the Notice of Motion concerning service of the Supreme Court orders setting aside the judgment of Miviri J and the service of the respondents’ Notice of Motion seeking to dismiss the reinstated proceedings OS(JR) 550 of 2019.

76.	On 16 March 2023 a further affidavit was sworn by Jacob Popuna on behalf of the Public Curator in the reinstated National Court proceedings OS(JR) 550 of 2019 attesting to facts, including annexing affidavits from the children and the potential beneficiaries of the estate saying they were satisfied the Curator’s decision was fair and equitable in the circumstances and, among other things, that the overwhelming support from the rest of the beneficiary was in favour of the Curator’s administrative decision determined 31 July 2018.

77.	On 16 March 2023 Pai Wasa, a chief of the deceased’s clan, attested in sworn affidavit evidence relevant to customary issue in support of the appellant’s case in proceedings OS (JR) 550 of 2019.

78.	On 16 February 2024 Purdon–Sully J heard the matter. 

79.	On 7 June 2024 Purdon-Sully J delivered her judgment dismissing the appellant’s application for judicial review in the National Court at Waigani which is now before this Court to determine the appeal of this judgment.

THE GROUNDS OF APPEAL IN THE NOTICE OF MOTION

80.	The Notice of Motion is set out below with the grounds of appeal:

“NOTICE OF MOTION

1.	The Appellant appeals from whole of the judgment of her Honour, Justice Purdon Sully, made on the 7th of June 2024 in the National Court proceeding styled OS(JR) No. 550 of 2019: Lady Margaret Yuwi Jacob Popuna as the Public Curators & Official Trustee & Ors wherein the National Court dismissed the application for Judicial Review with solicitor and client costs:

a] on the primary reason being that the Appellant failed to exhaust the statutory process under section 32 and 34 of the Public Curators Act.

b] and other observations of law made in the decision.

2.	GROUNDS

a] The Primary Judge whilst finding that the decision of the Public Trustee dated 31st July 2018 was amenable to Judicial Review, however, erred in law in holding that the Plaintiff failed to exhaust the statutory process under section 32 and 34 of the Public Curators Act (PCA) when:

i] Section 32 and 34 of the PCA operates only where the Public Trustee has initiated proceeding under section 10, 11 and 12 of PCA prior to grant of Letters of Administration or Probate

ii] Section 32 and section 34 of PCA is subject to 10, 11 and 12 of the same Act where the purpose of it is for beneficiaries to take action against decisions made during the course of administration of an estate in proceeding initiated by the Public Trustee under Section 10, 11 and 12 of PCA.

iii] The decision on Angui -v- Wagun [2011] PGNC 305, N4194 (17 January 2011) is inapplicable on these issues.

iv] The decision, the subject of Order 16 Review was made following grant of Letters of Administration in proceeding commenced by the Public Trustee styled WPA No. 3 of 2017 pursuant to section 38 of the Wills Probate & Administration Act and Order 19 of the National Court Rules.

v] There is no statutory or administrative process to exhaust where Letters of Administration is granted in proceedings initiated under Section 38 of WPAA and order 19 of the National Court Rules by the Public Trustee.

b] The Primary Judge erred in law in observing that the decision to distribute under section 81 (2) & (3) of WPAA which covers sections 81, 82, 83 and 84, as indicated by its heading only applies to "residuary estate" when in this case, there was no residuary estate to distribute.

c] The Primary Judge erred in law in holding that that Letters of Administration was granted under section 10 of the PCA when the Letters of Administration were obtained in proceeding styled WPA No.3 of 2017 pursuant to Section 38 of the WPPA and Order 19 of the National Court Rules.

d] The Primary Judged erred in law in holding that the onus was on the Appellant to obtain certificate of customary inheritance and right issued by the District Officer when,

i] Kundalin -v- Dau [2023] PGSC, SC2377 on customary certificate was an observation made obiter dicta.

ii] There is no provision under WIPAA for the Appellant to obtain such a certificate except in accordance with the statutory process obligated to the Public Trustee under section 35D and 35E of WPAA which the Appellant says the Public Trustee breached.

3.	ORDERS SOUGHT

a] Appeal be allowed.

b] The Judgment of the National Court given on the 7th of June 2024 be squashed.

c] Pursuant to Section 16 of the Supreme Court Act,

i] Application for Judicial Review be granted in OS (JR) 550/2018.
ii] An order in the nature of certiorari to bring before the Supreme Court the distribution decision of the Second First Respondent dated 18 December 2018 and be squashed.
ii] Cost of the National Court proceeding against the Respondents

d] Alternatively, the National Court matter be reinstated and listed before another Judge for hearing of the substantive Judicial Review.

e] The Respondents pay the Appellant's Costs of the Appeal

f] Such other orders that the Supreme Court deems fit and necessary.”

81.	Three (3) submissions were provided to the Court in this appeal, namely, the principal submissions and the supplementary submissions by the appellant and the submissions by the first and second respondents.

82.	I have carefully considered the submissions prepared by Counsel for the parties in this appeal which are summarised below.

Appellant’s Submissions

83.	Counsel for the appellant Mr. Apo summarised the appellant’s submissions to support the appellant’s grounds of appeal with the orders he was seeking on appeal in both documents as set out below:

		Principal submissions of appellant

“Issue 1

Section 34 is only available to proceedings initiated under section 10,11 and 12 of PCA or any provision of PCA. This is because sub-section 1 of section 34 says “administered under this act”

In this case, the Public Trustee obtained letters of administration under section 38 of WPAA availing to procedure under Order 19 of the National Court Rules.

Therefore, there is no requirement to exhaust the process under section 34 of PCA.

 Sections 10, 11 and 12 of PCA are intended interim administration in these situations:
a) In a possible case of Escheat or Bona Vacatia Estate (Section 10)
b) In a case where a person is missing (section 11) In a case where a person is presumed death (section 12)

Assuming there was a requirement, there is evidence that the Appellant did  exhaust that process.

Issue 2

	Distribution decision made to share between the Appellant and Peter Yuwi is outside of distribution formula enumerated in Section 84 of WPAA and therefore amounts to breach of this provision in the case of Intestacy.
	Section 35D & 35E of WPAA conflicts with Section 84 of WPAA on intestacy distribution and therefore in the case of Inconsistency the later 1987 amendments (Section 35D and 35E should prevail.

		What are the orders the Court should make

An order squashing the decision of the Primary Judge dated the 7th June 2024.

 An order granting judicial review and the distribution decision made by the Frist Respondent on the 31 of July 2017 be brought before the Court and squashed pursuant to section 16 of the Supreme Court Act

Cost of both the Supreme Court and National Court

Alternatively, the matter be remitted to the National Court before another Judge to hear the substantive Judicial Review with cost to the Appellant.”

Supplementary submissions of appellant 

		“Issue 1”

Section 34 is only available to proceedings initiated under section 10,11 and 12 of PCA or any provision of PCA instituted by the Public Trustee. This is because sub-section 1 of section 34 says “administered under this act”

In this case, the Public Trustee obtained letters of administration under section 38 of WPAA availing to procedure under Order 19 of the National Court Rules.

Therefore, there is no requirement to exhaust the process under section 34 of PCA

Sections 10, 11 and 12 of PCA are intended for urgent interim administration in these situations where section 34 only becomes relevant:

a) In a possible case of Escheat or Bona Vacatia Estate (Section 10)

b) In a case where a person is missing (section 11) In a case where a person is presumed death (section 12)

Assuming there was a requirement, there is evidence that the Appellant did e exhaust that process.

The only scenario where the Public Trustee may exercise a high degree of discretion is where the value of the estate does not exceed K400 pursuant to section 24 of PCA. For administration under PCA, the Public Trustee must initiate court proceedings under section 10,11,12 PCA

Issue 2

 Distribution decision made to share between the Appellant and Peter Yuwi is outside of distribution formula enumerated in Section 84 of WPAA and therefore amounts to breach of this provision in the case of intestacy.

Section 35D & 35E of WPAA conflicts with Section 84 of WPAA on intestacy distribution and therefore in the case of Inconsistency the later 1987 amendments (Section 35D and 35E should prevail.

What are the orders the Court should make

An order squashing the decision of the Primary Judge dated the 7th June 2024.
An order granting judicial review and the distribution decision made by the Frist Respondent on the 31 of July 2017, 2018, be brought before the Court and squashed pursuant to section 16 of the Supreme Court Act

Cost of both the Supreme Court and National Court to the appellant

Alternatively, the matter be remitted to the National Court before another Judge to hear the substantive Judicial Review with cost to the Appellant.

Any and further orders that the full court considers just and necessary”

First and second respondents’ submissions

84.	Counsel for the respondents Mr. Aki provided the Public Curator’s conclusions as a summary of the respondents’ submissions and orders he seeks as follows:
 
“In all of these, I submit that this Appeal should be dismissed in its entirety for being frivolous and vexatious in relying on wrong jurisdictional basis on Section 35D, 35E and 35K WPAA when intestacy rules for distribution of interstate matters is premised under Sections 84 WPAA.

I further submit to this court that the Appellant failed to exhaust the statutory avenue under Sections 32 and 34 PCA and thus, I invite this court to uphold the findings of the trial judge and consequently dismiss this appeal in its entirety.

Consequently, I further invite this court to find that there was no breach of legislation either WPAA or PCA by the First and Second Respondent and that the decision to sell the subject property and the proceeds to be evenly distributed between the Appellant and Peter Yuwi (deceased)’s eldest son) is fair and reasonable one and this court should uphold that decision in all fairness as the Appellant cannot get two properties. Appellant was already given the State Lease Property in Tari by the same decision that she is challenging. It would be unfair on the part of Peter Yuwi and the other beneficiaries even though the rest of the beneficiaries showed no interest in the two subject properties and to date maintain neutrality.

The Appellant does NOT own the subject property nor did the Appellant assisted in the purchase as she claims without any credible evidence or basis as such since 2017 it has taken 8 years and counting for the Appellant to continue to interject the lawful administration process of the First and Second Respondents and frustrate the office as well as those other innocent beneficiaries their beneficial rights have been deprived by the Appellant in this delay tactic because of greed and personal vendetta.

114. Therefore, we further submit that this high under Section 155(4) of the Constitution dismiss all of the grounds of the Appeal has being baseless and vexatious and instead order uphold the decision made by the Trail Judge and besides, find that the decision the subject of the court below is indeed a fair decision and that the First and Second Respondents to enforce that decision without further inherence given the 8 plus years of litigation by the Appellant against the same parties.

115. The cost of this Appeal be against the Appellant on Solicitor Client basis as the case in the decision regarding cost in the court below where cost awarded against the Appellant on Solicitor-client basis.”

THE INTERPRETATION AND CONSTRUCTION OF THE WILLS PROBATES AND ADMINISTRATION ACT AS READ TOGETHER WITH THE PUBLIC CURATOR ACT RELEVANT TO THE APPEAL

85.	Before I examine the judgment of the trial judge below, it is instructive to provide the necessary interpretation and construction of the Wills, Probate & Administration Act 1966 (WPAA) that which governs the administration and distribution of estates, including intestacy rules (sections 81–88), and provisions for distribution in accordance with custom (sections 35D, 35E & 35K) relevant to the proceedings in the National Court.

86.	The WPAA provides two main regimes for distribution on intestacy: 

i.	general statutory rules (sections 81–88) and 
ii. 	distribution in accordance with custom (sections 35D, 35E & 35K). 

87.	The latter requires certification of customary entitlement by a District Officer or other competent or qualified customary marriage expert.

88.	The Public Curator Act (PCA) provides for the appointment and sets out the powers of the Public Curator including procedures for complaints and disputes against the decisions of the Public Curator including the administration of intestate estate in this instance (sections 10, 32–34).

89.	The role of the Public Curator includes the exercise of his powers to administer estates where there is no executor or willing next of kin resulting in the making of decisions regarding distribution including intestate estates of the deceased person in a fair and equitable manner. 

90.	Aggrieved parties must generally exhaust statutory remedies under the PCA (ss. 32–34) before seeking Judicial Review so that the National Court can consider these applications in order for leave to thereby be granted by the National Court to proceed by way of Judicial Review proceedings.

91.	The National Court Rules (NCR) provide pursuant to Order 16 (Judicial Review) and, if applicable, Order 19 (Probate Administration proceedings and Rules) of NCR the procedures necessary to case-manage probate matters in the National Court. 

92.	The National Court has a discretion to grant judicial review of administrative decisions, but only after all necessary and obvious statutory remedies have been exhausted. 

93.	Failure to do so may result in the dismissal of the proceeding on the grounds of an abuse of the Court’s process.

94.	The Constitution of Papua New Guinea under section 59(2) (principles of natural justice) and section 155(4) (inherent powers of the court) may also apply in these disputes before the National Court depending on the issues that arise at the hearing and are often considered in the application of disputes and grievances actions before the National Court. 

Duties and Powers of the Public Curator 

95.	The Public Curator is defined under the Public Curator Act (PCA) and means the Public Curator under section 2 of the PCA which states that the Minister may appoint an officer to be the Public Curator under a corporate name of ‘Public Curator’ of  Papua New Guinea with the office having perpetual succession and a seal of the office.

96.	Section 5 of the PCA operates to appoint the Public Curator as sole executor or trustee when the testator dies and he or she has a valid will appointing the Public Curator as the executor subject to section 8 of the PCA either by leave of a judge or otherwise and the Public Curator has the right and discretion to decline to so act as the testator.

97.	Section 9 of PCA provides power to the National Court to grant probate of the will, or administration of the estate of a deceased person. 

98.	Administration is defined under the PCA by the PCA borrowing the definition from section 1 of the Wills, Probates and Administration Act (WPAA) which includes any orders pursuant to sections 10 and 11 of the PCA and under section 110 of the WPAA. 

99.	The administrator is defined under the PCA which includes any person to whom administration is granted either under sections 10 and 11 of the PCA or ‘Distributor’ under sections 98 - 102 of WPAA. 

100.	The Public Curator can apply to the National Court to grant to the Public Curator an order to administer the estate of any deceased person with the same powers, right and obligations in respect of the estate as he or she would have if administration had been granted to him or her under a will and the same applying to a small estate.

101.	 In the case of real property under K10,000 in value pursuant to section 10 of the PCA, if all persons interested in the distribution of the real property agree to the application of section 110 and Division 4 of the WPAA the distribution of the estate involving low-value real property can occur.   

102.	Part II, Divisions 1 & 2 provisions of the WPAA provides for the distribution of the estate of a deceased person when a formal will be declared valid and does not apply in the proceedings as the Late Sir Yuwi had no formal will and died intestate. 

103.	Part III Division 1 of WPAA provides for probate and administration generally where the definition of intestate under this part is defined under section 36 as a person who leaves a will but dies intestate as to some beneficial interest in any of his or her property. 

104.	Section 38 WPAA provides general powers to the National Court to grant probate of the will or administration of the estate of the deceased persons leaving properties within the country.

105.	Section 44 of WPAA provides protection powers over the estate by vesting the estate in the Public Curator until probate or administration is granted including the property of the deceased person. 

106.	 Sections 81-88 of WPA are the relevant provisions of the WPAA which govern the distribution by an administrator of an intestate person’s net estate after payment of all debts and liabilities, including prescribing in detail the categories of those persons who are entitled to share in the distribution of the estate which also provides for the distribution in polygamous marriages and the capture of all other situations under the general provisions of these sections of the PCA.

Disputes, Legal Proceedings and Complaints against the Public Curator

107.	In the simplest statutory interpretation and construction of the PCA, Section 32 of the PCA states that if orders are made under Sections 10, 11 or 12 persons such as the appellant can have their disputes determined by a National Court of Justice and the judge may direct the proceedings as the said judge thinks is proper.

108.	Section 33 PCA allows the Public Curator or any person of interest in the estate such as the appellant to seek orders from a judge of the National Court to make such orders concerning the collection, sale, investment and disposal of the estate again as the court thinks is proper.

109.	Section 34 PCA is almost an unfettered and broad statutory review mechanisms de novo for persons with grievances or complaints in relation to the conduct of the Public Curator resulting from the administration of the estate and the distribution of the estate, to commence proceedings in the National Court to examine the neglect, or refusal to do any act or thing concerning the estate, any breach of duty or failure to act, requesting the Public Curator to show cause for his or her actions, seeking orders to make the Public Curator do an act or thing, grant injunctions, and pay into court security for the aggrieved person’s cost as the National Court thinks is fit and proper.  

110.	The appellant and her lawyers elected not to invoke the clear dispute mechanism under Sections 32-34 of the PCA for reasons best known to the appellant and her lawyers of choice.

The presumption of regularity of the actions taken by Public Curator 

111.	The PCA as read together with the powers under the WPAA are exercised by the Public Curator in this Nation.

112.	The Public Curator is a statutory position appointed by the responsible Minister as the head of a national institution responsible for the duties relevant under the PCA & WPAA to supervise, administer and execute the will of the deceased citizens within Papua New Guinea either by invitation of the beneficiaries of the estate under a valid will or resulting from an intestacy, or by the supervision and orders made the National Court of Justice under or by the operation of the relevant statue laws in Papua New Guinea. 

113.	It is an independent office established by the State under the PCA. 

114.	As previously mentioned, but is worth repeating, the Public Curator’s office is headed by the Public Curator, appointed by the relevant Minister as a duly qualified and proper person of good fame and character with the obvious and necessary experience to execute this important statutory function and role. 

115.	Jacob Popuna has been the Public Curator and Official Trustee of Papua New Guinea for more than nine (9) years since October 2016 to the present time.

116.	In Papua New Guinea the presumption of regularity generally means that statutory processes involving estates relevant to the administration of the estates of deceased persons under the relevant legislative regimes are assumed to have been conducted properly, fairly and justly by the Public Curator and his staff and officers employed in the Office of the Public Curator according to the applicable laws unless proven otherwise by a decision of the Court. 

117.	However, this presumption is not absolute and can be rebutted by evidence of irregularities or breaches or violations of the laws that entitle the aggrieved beneficiaries to litigate their grievances to finality in the National Court under the relevant statute as defined and developed by the common law. 

What is the presumption of regularity

118.	The presumption of regularity is a legal principle that assumes public officials have properly performed their duties and that official actions are lawful and valid. 

119.	In the context of wills and intestate estates, it means that the Public Curator and his or her officers are assumed to have followed the law and the proper procedures when conducting matters under the PCA and the WPAA. 

120.	This presumption is a form of judicial deference, meaning courts are likely to uphold actions taken by the Public Curator and the office of the Public Curator unless there is strong and provable evidence to the contrary at the higher evidentiary standard if fraud, corruption, or oppressive bias is alleged by the aggrieved person.  

121.	The appellant in the proceedings before the National Court has been unable to persuade the trial judges that strong evidence existed to rebut the presumption of procedural regulatory in the Court below on the necessary evidentiary standard. 

How is the presumption of regularity applied to the actions of the Public Curator

122.	The Public Curator and his staff are responsible for administering the estates of deceased persons in accordance with the autochthonous Constitution of Papua New Guinea, the Organic Laws applicable with due consideration to the Melanesian culture of the Nation including polygamous marriages and the applicable laws under the PCA and WPAA as developed by the common law. 

123.	The Public Curator or aggrieved beneficiaries in estate disputes can seek orders from the National Court to hear and determined their disputes and grievances including injunctions to prevent or stop actions that contravene the law, according to the PCA and WPAA. 

124.	The presumption of regularity means that courts are likely to accept the examination of the facts and review or required explanation of the Public Curator’s  for the actions taken in the circumstances, unless there is clear evidence of a violation of the Acts necessitating the intervention of the National Court. 

125.	Examples of areas where the presumption might be relevant and requires careful scrutiny by the National Courts include the validity of the will itself, identifying the beneficiaries to an deceased estate, negotiating, and if necessary, mediating disputes without judicial intervention, identifying fraud or corrupt activity in estate disputes involving the conduct of the relevant parties, and appearing in a representative capacity before the courts to ensure the laws are complied with in accordance with the relevant statutory requirements. 

126.	Allegations of undue influence criminality, or ‘fraudulent misrepresentation’ prosecuted as alleged by petitioners like Lady Yuwi must be proven to the higher evidentiary standards demanded by the law otherwise such allegations will be examined and tested by the National Court and ultimately fail if such allegations are not proven. 

When can the presumption of regularity be rebutted

127.	The presumption of regularity is not absolute and can be rebutted by evidence of irregularities or breaches of the statutes that govern wills and intestate estates or other breaches.  

128.	For instance, if there is evidence that the Public Curator failed to follow proper procedures for processing and administering the estate, or if there is evidence of intimidation towards beneficiaries, fraud or corruption, misrepresentation or bias against a deserving beneficiary under the laws,  the presumption of regularity might be rebutted. 

129.	The National Court would then need to consider and examine the evidence and determine whether the alleged irregularity or violation of the law was significant enough to affect the outcome of the distribution of the deceased estate with all parties including the Public Curator and the aggrieved beneficiary having the Constitutional guaranteed right to a fair trial and the right to be heard pursuant to Section 59 of the Constitution. 

130.	I find in this case in the outcome of the multitude of proceedings that have taken place in this matter the National Court has met the standards expected pursuant to Section 59 of the Constitution at all times. 

Important Considerations 

131.	The presumption of regularity is a complex legal concept. 

132.	The Public Curator as a statutory trustee in estate law provides guidance to the beneficiaries of deceased estates as a public service under the relevant laws and procedures to ensure a proper, just, equitable and transparent outcome for the persons with an interest in the distribution of the assets involved in a deceased estate. 

133.	The presumption of regularity is not intended to shield the Public Curator from legitimate scrutiny. 

134.	The principle is designed to balance the need for efficient and lawful administration of deceased estates with the requirement that all distributions of the estates of the deceased persons, of course, after all debts and liabilities are met and discharged before distribution of the net assets are finalised in favour of the rightful beneficiaries,  are conducted fairly, transparently and conclusively as has occurred in these proceedings. 

135.	The delegation of the powers of the Public Curator under the relevant Acts which includes officers and employees under the supervision and control of the Public Curator must act in accordance and consistent with the alter ego principles of law otherwise known as the Carltona principles from the well-established authority of Carltona v Commissioner of Works [1943] 2 All ER 560.

136.	The evidence in these proceedings in the courts below clearly shows that the Public Curator was authorised to do what he did under the relevant laws including his staff and officers to abide by Section 38 of the Constitution dealing with his qualified statutory rights, duties and obligations including the evidentiary burden of proof required pursuant to Section 38(3) of the Constitution that states: 

“The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.”

137.	It is my view that this is not an optional step in the process. 

138.	I find that the Public Curator has discharged his duty in the circumstances to protect the rights and freedoms of others and in making reasonable provisions for cases involving the appellant where the exercise of one right may conflict with the exercise of the rights of another which are the other beneficiaries to the estate of the late Sir Matiabe Yuwi in the distribution of his intestate estate and in applying the relevant laws under PCA and WPAA in these circumstances for an equitable outcome in accordance with Sections 38 (1)(a)(ii) and (b) of the Constitution. 

139.	Without the necessary and obvious proof by the appellant that the presumption of regularity in the performance of the duties that public officials or appointed officers act in accordance with the law in carrying out their official duties had failed to follow required conventional statutory practice, the appellant must fail. 

140.	Therefore, it must follow that any act or performance of the Public Curator remains regular and validates instruments and action taken by the Public Curator under the PCA and WPPA  defeating any claim or claims in the proceedings before the National Court made by the appellant that the Public Curator acted ultra vires and beyond power applying the legal test discussed in Woollett v Minister of Agriculture & Fisheries (1955) 1 QB 103 at 120 – 134.

141.	I find that the appellant did not meet the requisite burden of proof on the facts and law before this Court to discharge that evidentiary burden of proof and fails in establishing her action to prove the allegations made by her against the Public Curator were also proven in the trial below.

THE FINDINGS OF THE TRIAL JUDGE PURDON – SULLY J ON 7 JUNE 2024

142.	On 7 June 2024 Purdon-Sully J delivered her written judgment following the substantive application for judicial review pursuant to Order 16 Rules 5 of the National Court Rules made pursuant to a Notice of Motion filed on 3 December 2019 and pursuant to leave to apply for judicial review granted on 28 November 2019 entered on 4 December 2019. 

143.	After delivering her judgment, her Honour made the following orders:

1.	“The Application for Judicial Review be dismissed
2.	The Plaintiff pay the costs of the first and second defendants’ solicitor/own client basis. 
3.	The time for entry of this order is abridged to the time of signing by the court which will take place forthwith.”

144.	For the purpose of this appeal, I refer to the table below as a compendium of efficiency and convenience to support my findings in this judgment.

Table: Purdon-Sully J’s Findings Appeal Points Raised

Issue/Action	Purdon-Sully J’s Findings	What the Parties challenged on appeal	Appeal Points Raised	
Exhaustion of Statutory Remedies	Lady Margaret failed to exhaust statutory remedies under ss. 32–34 PCA before seeking judicial review; this was fatal to her application and amounted to abuse of process.	Lady Margaret filed for judicial review without first pursuing the statutory complaint process under the PCA.	Appellant argues that s. 34 PCA is not applicable to final distribution decisions, and that she was not required to exhaust this process.	
Decision Amenable to Judicial Review	The Public Curator’s 31 July 2018 letter was a substantive administrative decision amenable to judicial review.	Public Curator argued there was no decision to review; Lady Margaret argued the decision was ultra vires.
	Not a major point of dispute on appeal; both sides accept a decision was made.	
Application of Customary Law (ss. 35D, 35E WPAA)	The onus is on the person claiming by custom to produce a certificate of entitlement; Lady Margaret did not produce such a certificate. The Hohola property is not customary land but a state lease.

	Lady Margaret argued the Public Curator failed to inquire into custom and obtain certification; Public Curator argued the property is not subject to custom.	Appellant argues the Public Curator was obliged to initiate the certification process under s. 35E WPAA.	
Distribution Formula (ss. 81–84 WPAA)	The correct legal basis for distribution is ss. 81–84 WPAA, not the custom provisions, when Letters of Administration are granted under s. 10 PCA.	The appellant argued the distribution should have followed custom (ss. 35D, 35E); Public Curator applied the statutory formula.	Appellant argues there is a conflict between ss. 35D, 35E and s. 84 WPAA, and the later (custom) provisions should prevail.	
Natural Justice/Right to be Heard	No persuasive evidence of breach of natural justice; Lady Margaret was given opportunities to be heard and to attend meetings but did not do so.	The appellant claimed she and other beneficiaries were not given a right to be heard.	Appellant maintains there was a lack of consultation and opportunity to be heard.	
Multiplicity of Proceedings/Abuse of Process	Multiple proceedings by Lady Margaret amounted to abuse of process; costs awarded on solicitor-client basis.	Lady Margaret filed several duplicitous  proceedings under different case-management tracks in the National Court.	Appellant argues these were necessary due to procedural dismissals.	

145.	With reference to the above matters determined in the proceedings below, the respondents’ submitted in their arguments on appeal that the approach taken by the appellants in the National Court was contrary to the Public Curator Act and Wills, Probate and Administration Act, a submission ultimately accepted by the trial judge in her decision that the proceedings were therefore incompetent resulting in the dismissal of the Judicial Review application before Purdon – Sully J.

146.	For the reasons set out in this judgment to follow, I agree with Purdon-Sully J’s reasoning and the appeal therefore must be dismissed. 

DISCERNMENT OF THE DECISIONS AND FINDINGS OF THE PRIMARY JUDGE IN THE TRIAL

147.	The spectrum of complaints on appeal set out in the grounds of appeal are extremely wide and far ranging.

148.	The appeal needs to be defined to establish, and understand clearly, by the process of workable compression of the necessary assertions of appealable errors and challenges to the judgment of Purdon-Sully J in the court below, what is being raised by Counsel for the appellant to be examined by the Court.

Judicial Review 

149.	The commencing point is that Judicial Review is the procedure that allows the National Court to enter the arena of another body to properly examine and determine, in this instance, the Public Curator, in forming a view and making a decision to distribute the remaining properties of a deceased estate intestate and to review his decision or action. 

150.	It must be noted that not all decision are susceptible to Judicial Review. 

151.	When examining the procedure of review, the Courts must be conscious to delineate the review jurisdiction from dispute mechanism under the relevant statute governing the decision-maker’s determination and that of an appeal as carefully set out in Avei -v- Maino in that “the Supreme Court is concerned not with the decision itself but with the decision-making process.” 

152.	In the Judicial Review Application by Andrew Posai [1995] PNGLR 350, Sheehan J made these guiding remarks: 

“But it is vital that the Court in exercising a power of review keeps in mind that its role is one of supervision only. That is to say to ensure fairness by public authorities in the exercise of their powers, bearing in mind, that is the public authority that retains, at all times, the Parliament’s authorised power of decisions.”

153.	Judicial Review concerns itself only with the integrity of the decision-making process of a public authority and not the decision itself.

154.	Specifically, the appellate court cannot make any decision that substitutes or replaces the existing decision with a new decision the subject of review which remains with the decision-maker under the relevant statute or laws that govern his or her decision-making power.

155.	The Wednesbury principles allow the court to intervene as a judicial authority, but not as an appellate determiner to examine whether the local authority has contravened the law by acting in excess of the powers which Parliament has confided in them under statute law. 

156.	It seems clear to me from the appellant’s supplementary extract of submission filed on 14 October 2025 that the principal complaints directed at the judgment of Purdon-Sully J to refuse the substantive application for Judicial Review can be distilled as follows: 

i.	The decision of the Public Curator dated 31 July 2018 to distribute the two (2) remaining properties under Letters of Administration granted to him by the National Court breached sections 35D & 35E of the WPAA relevant to customary succession.  

ii. Sections 32, 33 and 34  PCA are statutory rights afforded and guaranteed by the PCA to aggrieved persons such as the appellant to ventitale such grievances under the supervision and jurisdiction of the National Court with all its inherent powers to examine the conduct and decision of the Public Curator. 

iii. These rights were not pursued by the appellant but the appellant, on advice from her lawyers, chose to challenge the decision of the Public Curator by a judicial review process rather than the necessary provision readily available under sections 32, 33 and 34 of the PCA.  

157.	Clearly the judge below provided reasons under section 34 of the Public Curator Act that the appellant failed to exhaust the statutory process under PART V I of the PCA including sections 32 and 33 referring disputes to be decided by the National Court.

158.	The National Court was entitled, and did find correctly, Judicial Review was unavailable as a procedural step for the National Court to intervene or substitute the decision of the Public Curator when dispute provisions under the governing Acts had not been exhausted by the appellant. 

The defective and duplicitous process of Judicial Review pursued by the appellant in the National Court.

159.	The totality of the proceedings before Purdon-Sully J were vitiated by the defective and duplicitous process of Judicial Review pressed unsuccessfully by the appellant’s counsel in his election, on instructions by the appellant, to prosecute Judicial Review proceedings with reference to the balance of the appellant’s points raised before the National Court to include:  

i.	Whether the distribution decision of the Public Curator was ultra vires.

ii.	Whether a distribution can be made under sections 81-84 of the WPAA under customary law. 

iii.	Whether section 34 of PCA was anticipatory or pre-emptive provisions intended to restrain the Public Curator from making any administrative decisions in an ongoing interim administration of an estate.

iv.	Whether section 32–34 of PCA are subject to sections 10-12 of the PCA involving orders granted to the Public Curator to administer the estate.   

v.	Whether sections 32–34 of PCA capture legal disputes when orders are made under section 10–12 of PCA. 

160.	Applying the three (3) accepted modes where the Public Curator can obtain administration of the deceased estate set out in Owa v. Popuna  one can assume jurisdiction when the Letters of Administration are granted to him is one of the sound methods available at law, was in fact what occurred in these proceedings. 

161.	The permissible challenge to the Public Curator’s decision to ventitale any dispute remains under the statutes and not by Judicial Review as the correct threshold procedure to exhaust before Judicial Review can be considered as an option.

Examination and review of the relevant facts and law by the primary judge.

162.	The primary judge made the following critical findings after a comprehensive examination and review of the facts, the multitude of proceedings, and by applying the applicable laws to dismiss the proceedings below:  

i.	Whilst the Court finds that a decision was made by the Public Curator and it is one prima facie amendable to judicial review, the right to judicial review is not an absolute one. It is at the discretion of the National Court. 

ii.	An applicant for judicial review must first seek and obtain the leave of the court.

iii.	These are requirements for leave. One of these requirements is the exhaustion of any review remedy available to the plaintiff under the statute or statutes.

iv.	The application and grant of orders for leave normally proceed ex-parte and the authorities in this jurisdiction have made clear that issues of leave remain alive notwithstanding the grant of leave and subsist until the final determination of the substantive judicial review is undertaken by the National Court.

v.	In applying Angui v. Wagun, the plaintiff did not exhaust the statutory procedure under the Public Curator Act for review of actions taken by the Public Curator as a reason that would have justified the refusal of leave as unmeritorious at the time leave was granted.  

vi.	Judicial Review is not meant to be a deviation from an available review remedy created by statute to address grievances which sections 32 – 36 under PCA create as mechanisms for the National Court to determine.

vii.	Whilst the plaintiff commenced proceedings in WS 1258 of 2018, these proceedings were not finally determined and the remedies available to her by virtue of that statutory review process are not exhausted before she sought leave for Judicial Review as the appropriate statutory pathway of review. 

viii.	In the result, the plaintiff’s application for Judicial Review should be dismissed by her failure to exhaust the statutory review process under PCA available to her. 

ix.	By reason of that failure her application for judicial review is an abuse of process under the Court’s duty to control proceedings before it: including the conduct of the parties and does not include an abuse of process for justice to be served in a timely and an orderly manner. 

x.	Adopting the principles of Nari v. Public Trustee which outlined the principles relating to the grant of administration in an intestacy, her Honour reviewed sections 81 – 84 of the WPAA in which the plaintiff would have received a third (1/3) of the estate as a widow whereas the decision of the Public Curator was that she was entitled to retain the Tari property and half (1/2) the net proceeds of the sale of the Hohola property and, by inference, a more generous outcome for the appellant and a fair result was determined by the primary judge. 

xi.	Applying the Wednesbury principles and section 59(2) of the Constitution relevant to the reasonableness of the decision of the Public Curator, her Honour did not accept that the decision of the Public Curator satisfied the high test that the decision was so outrageous in defiance of logic or of accepted moral standards that no sensible person who had applied his or her mind to it could have arrived at it and therefore the Wednesbury test was not met by the appellant on the facts in these proceedings. 

xii.	Likewise, her Honour said there was little evidence presented by the plaintiff to establish that the decision of the Public Curator violated section 59(2) of the Constitution and rejected the allegations on the facts against the Public Curator that he did not act fairly in the circumstances of a decision-making body under the PCA and WPAA or that there was bias towards the plaintiff in the Public Curator’s decision-making process because the plaintiff disputed or disagreed with his ultimate decision. 

The outcome of the primary judge’s findings on appeal

163.	This Court finds that the reasons in the judgment of the trial judge below were cogent with percipient clarity and diligence.

164.	Her Honour provided reasons in her findings of the facts and the relevant law to reject the appellant’s application for Judicial Review in ultimately dismissing the plaintiff’s  proceedings when the review processes under Sections 32-34 of the PCA were available and appropriate legislative procedural pathway to commence proceedings to air her grievances against the Public Curator.

165.	The appellant and her lawyers elected to take the Judicial Review route resulting in the proceedings failing in the court below resulting in the appellant being bound by that decision and her conduct.

THE DUTY OF NATIONAL COURT JUDGES TO GIVE REASONS

166.	Judges give reasons in almost every case which remain incidental and normative in the judicial process as the common law dictates the judicial obligation to explain how and why a decision has been reached is an immutable duty.

167.	For abundant reasons, the Constitution creates obvious dimensions pursuant to Section 59 where it is necessary and implied that a losing party must be able to understand the reason why the proceeding before the Court failed, and conversely, a successful party has a decision in its favour representing the law of the country determined by superior courts of record, like the National Court of Papua New Guinea at trial level and, indeed, the Supreme Court as the final appellate review process. 

168.	Instructively, it is our view that the opinion of the judge particularly at trial level in reviewing the evidence relied upon by the parties is seized with the duty to give reasons exacting the following benefits:

i.	it permits the losing party to review whether any appealable or reviewable error has occurred or accept the judge's final analysis.

ii.	a defendant, the State, a public institution and instrumentality, or corporation is accountable for its actions that affect the rights of the parties.

iii.	public scrutiny is an open-court system that prevents acts of arbitrary conduct or decision-making.

iv.	the rationale of the decision-making judiciary remains robust and based on evidence and the law.

169.	The National Court of Papua New Guinea remains the superior court of record and its decision, and the reasoning process of its judges, are followed or provide guidelines in cases that follow ensuring the stability of the rule of law.

170.	The three basis yet distinct reasons for a judge to give reason in his or her judgments are: 

i.	the parties can review whether their submissions or arguments were understood and accepted when the judge gave his or her reasons.

ii.	judicial accountability.

iii.	courts not only resolve the disputes between the parties but also formulate rules that can be applied in future cases or by the public in matters determining their rights and affecting the legal position of their actions. 

171.	On disputed factual question, the primary contested issues require the trial judge to set out his or her reasoning in full.

172.	The primary judge in the proceedings below discharged her duty to provide her reasons.

173.	This Court finds that the primary judge in the proceedings in the National Court discharged her duty to provide proper reasons to dismiss the proceedings at first instance.

Exercise of the primary judge’s discretion to dismiss the proceedings

174.	The Court must now examine and determine the final question of her Honour exercising her discretion in the court below in applying the totality of her findings of fact and the relevant laws to dismiss the proceedings.

175.	In the persuasive case of House v The King, the High Court of Australia detailed the appellate court’s authority to interfere with an exercise of discretion and whether the exercise of discretion is dependent upon the demonstration of one or more of certain kinds of error.

176.	The High Court in dismissing the appeal, held that an appellate court would not intervene just because they would have handed down a different decision as the court held that it must appear that some error has been made in a trial judge exercising the discretion available at trial.

177.	The majority comprising of Justices Dixon, Evatt and McTiernan identified the following errors that would lead the appellate court to exercise its own discretion in substitution for that of the trial judge:

i.	the judge acted on a wrong principle of law;

ii.	allowed extraneous or irrelevant matters to guide or affect him or her as the trial judge;

iii.	the judge has erred or mistaken the facts;
iv.	the judge did not take into account relevant and material considerations;  or

v.	the decision and the discretion leading to making the ultimate or conclusive decision was unreasonable, unfair or unjust.

178.	This Court must find and conclude that the trial judge in these proceedings in exercising her discretion to dismiss these proceedings on the grounds she so found, did so in the errors set out in the judgment of House v. King.

179.	For the reasons set out in this judgment, this Court finds that it was not unreasonable or clearly unjust and did not arise from any relevant error on the part of the trial judge’s reasoning to dismiss the proceedings. 

180.	The Court finds that the trial judge had appropriately exercised her discretion to dismiss the proceedings in the circumstances and, therefore, the court is unable to interfere with the primary judge’s decision.

181.	To elaborate, the manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 

182.	It is not enough that the judges composing the appellate courts consider that, if they had been in the position of the primary judge they would have taken a different course, but must apply measured circumspection and examination of the reason for the decision made by the trial judge in the proceedings below before considering setting aside and reversing the decision made by the primary  judge.
 
183.	It must appear that some error has been made in exercising the discretion. 

184.	If the primary judge acts upon a wrong principle, if he or she allows extraneous or irrelevant matters to guide or affect him or her, if he or she has mistaken the facts, or does not take into account some material consideration, then the determination should be reviewed, and the appellate court may exercise its own discretion in substitution for the trial judge’s decision if it has the materials for doing so.

185.	It may not appear how the primary judge has reached the result embodied in their order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 

186.	In such a case, although the nature of the error may not be immediately discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

187.	For the purposes of context in the proceedings below, the permissibility for allowing an appeal from a discretionary judgment may be categorised into limited application of the rules.

188.	Such as specific error (legal or factual), or an inferred error permitting this Court to intervene in the circumstance where the decision was unreasonable or plainly unjust, the appellate court may permit itself to confirm the decision, quash the decision, vary or substitute the decision, make a further decision in relation to the matter that is being appealed or refer the matter being appealed to be retried in the National Court of Justice before a different judicial officer of  the National Court.

189.	This Court has conducted a careful examination and analysis of the primary judge’s findings in these proceedings requiring the appellant to establish that the trial judge has made an error in the exercise of her discretion.

190.	If there is no identifiable error, but if upon the facts the exercise of discretion is “unreasonable or plainly unjust” an appeal court may infer that the judge has failed to properly exercise their discretion on the grounds that a substantial wrong has occurred.

191.	In this instance, the Court concludes that the exercise of the judge’s discretion to dismiss the proceedings based on the findings the judge made on the facts and law were correct and sound.

192.	It seems clear in our view that the lawyers for the appellant took an erroneous procedural path of Judicial Review than the simplest path to apply the PCA and WPAA to prosecute the appellant’s rights and grievances with statutory certainty, clarity and competency of the proceedings being heard conventional in the National Court of Justice.

193.	The failures to exhaust statutory review rights have significantly contributed and resulted in this appeal to fail following the failure of the proceedings before the primary judge below. 

194.	It is our view that the exercise of Purdon-Sully’s discretion to dismiss the proceedings was done so properly, reasonably and justly and without any obvious, patent or passive error.  

DISPOSITION

195.	On a proper examination of her Honour’s findings and the reasoning in her judgment below, this Court finds her reasoning and decision curated and appropriate in her findings of fact and the application of the law. 

196.	The Court finds that on the issue of the exercise of the primary judge’s discretion in the proceedings in the National Court and, in our view, the relevant principles applying the authority of House v. King, her Honour stated correctly (at AB-428) that:

“75. …thus, an abuse and without merit. A finding to this effect is supported by the plaintiff’s Application for Leave to Appeal filed 9 November 2018, the plaintiff seeking leave to appeal the ruling of the primary Judge that had found *inter alia* that the earlier initial proceedings remained (see [(2)(f)] of the Appeal). It is also supported by the plaintiff’s evidence at [3] and [5] of her further affidavit filed 21 October 2019 in support of her application for leave for judicial review.

76. It is unhelpful, and ultimately a submission that can be accorded little weight, for Counsel for the plaintiff to then submit at [7.5] of the additional written submissions that the dismissal of WS No 1364 of 2018 was erroneous. The plaintiff had an opportunity to test that view on appeal, namely that WS1258 of 2018 had been dismissed in its entirety. She chose not to do so, as she withdrew her appeal by court order of 8 March 2019. Whilst the plaintiff gave evidence at [6] of her affidavit filed 21 October 2019, in support of her application for leave for judicial review, that she could obtain a transcript of the hearings on 25 October 2018 and 24 April 2019, she did not adduce that evidence in these proceedings. It is reasonable to infer that if that evidence supported her case, namely that the proceedings in WS1258 of 2018 had been finally determined, she would have led that evidence. It was in the plaintiff’s interests to adduce that evidence if it supported her case.

77. Having withdrawn her appeal, the plaintiff did not thereafter pursue her rights under s 34 of the PCA in the National Court in WS1258 of 2018. She initiated fresh proceedings in a different litigation track for judicial review, in circumstances where a National Court Judge had made a finding, unchallenged on appeal, that the proceeding WS1258 of 2018 was still alive, those proceedings the appropriate statutory pathway of review, the exhaustion of that statutory remedy a requirement for leave for judicial review, the plaintiff’s evidence on the ex parte leave application for judicial review being that all of her WS applications in the commercial track had been dismissed (see plaintiff’s affidavit filed 13 August 2029 at [18]-[19] and further affidavit filed 21 October 2019).

78. In the result the plaintiff’s application for judicial review should be dismissed by reason of her failure to exhaust the statutory review process under the PCA available to her.

79. Further, and by reason of that failure, her application for judicial review is an abuse of process. It is the duty of the court, and the court has wide powers in that regard, to control proceedings before it, subject to jurisdictional limitations fixed by statute. This includes ensuring that the conduct of the parties does not involve an abuse of court process and that justice is served in a timely and an orderly manner (Paul v Kispe [2001] PGNC 132; N2085).

80. Having reached that conclusion, it is not necessary to address the defendant’s further submissions as to multiplicity of proceedings and res judicata in support of their submission that the judicial review proceedings amounts to an abuse...”

197.	At first blush, the exercise of her Honour’s discretion to control the unnecessary complexity of the appellant’s multitude of proceedings filed by the appellants in the National Court may seem officious and bumptious.

198.	In our findings in this judgment the trial judge’s intervention was both obvious and necessary to bring order, control, and finality to the litigation below.

199.	The exercise of the primary judge’s discretion in providing reasons for her judicial intervention was warranted by the judge in line with the decision with House v. King that an appellate court is only permitted to review decisions underpinning the exercise of a judge’s discretion in very limited circumstances.

200.	In this regard, the Court is of the view that the exercise of the trial judge’s discretion was appropriate, just and reasonable on the facts and the application of the law to control the proceedings by making orders to dismiss the matter as an abuse of the National Court’s processes. 

201.	The appellant’s failure to prosecute her grievances against the decision of the Public Curator in relation to her deceased’s husband intestate estate in the National Court from the outset pursuant to Sections 32,33 and 34 of the PCA remains impetuous, injudicious and misguided by the appellant and her lawyers. 

202.	It is the view of this Court that the judgment and orders made by Purdon-Sully J dated 7 June 2024 must stand in the National Court in Waigani including the costs orders made on 7 June 2024.

203.	The appeal puts an end to the appellant’s incessant pursuit of Judicial Review of the Public Curator’s decision dated 15 July 2018 assisted by her lawyer’s  overzealous  avocation in this legal course of action resulting in error heaped upon procedural error continuing unabated and without the necessary restraint.

204.	The appeal is dismissed.

205.	The appellant will pay the costs of the first and second respondents in this appeal as agreed between the parties on an indemnity basis and failing agreement, the costs will be taxed under the SCR. 

ORDERS (BY THE COURT)

206.	For all the reasons set out in this judgment, the Court makes the followings orders:

(1)	The orders of the National Court at Waigani dated 7th June 2024 must stand. 
(2)	The Appeal is dismissed.
(3)	The appellant is to pay the costs of the first and second respondents of this appeal on an indemnity basis as agreed between the parties, or as taxed under the Rules.
(4)	The Registrar is directed to close the file.  
__________________________________________________________________
Lawyers for the appellant: Apo & Co Lawyers
Lawyer for the first and second respondent: Public Curator