SC2832

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 50 OF 2006

BETWEEN:
LAWRENCE KALINOE 
First Appellant

AND:
THE VICE CHANCELLOR
Second Appellant

AND:
THE UNIVERSITY OF PAPUA NEW GUINEA
Third Appellant

AND:
LYONS PUTUPEN
Respondent

WAIGANI: LOGAN J, TOLIKEN J, ELIAKIM J
15, 19 DECEMBER 2025

PRACTICE AND PROCEDURE – Application for recusal of a member of the Supreme Court bench constituted to hear an appeal on the ground of actual or apprehended bias on the part of the judge concerned – whether the application should be heard by the judge concerned or the whole bench in the first instance – onus of proof on such an application – no evidence to support conclusion of actual or apprehended bias – application dismissed. 

PRACTICE AND PROCEDURE – Application for dismissal of appeal on the basis of fraud or that it constitutes an abuse of process – whether the issues should be dealt with by separate action in the National Court – onus and standard of proof HELD – onus on party alleging fraud or abuse of process distinctly to allege and prove these issues – application should be dealt with by the court where fraud or abuse of process alleged – no evidence to support conclusion of fraud or abuse of process – application dismissed. 

PRACTICE AND PROCEDURE – Appeal against striking out of defence and related entry of judgement in default on the ground of failure to comply with an obligation to allow a plaintiff inspection of discovered documents – Order 9, rule 15(1)(b), National Court Rules – discretionary value judgement by primary judge on a matter of practice and procedure – no error of principle proved – appeal dismissed. 

Facts:

1.	On 5 May 2006, the respondent obtained from the National Court a judgment in default against the appellants with damages to be assessed in respect of a proceeding (WS No 105 of 2004), commenced by him on 13 February 2004. 

2.	In the National Court proceedings the respondent alleged that, in breach of contract, he was wrongfully dismissed from his then teaching appointment at the University of Papua New Guinea. The basis for the default judgment was satisfaction by the then motions judge that the present appellants had failed to allow the respondent inspection of documents discovered by them in a list of documents and a related failure by the appellants to respond to a letter from the respondent requesting inspection of those documents.

3.	The appellants sought and, on 15 June 2006, obtained leave to appeal against that default judgment.

4.	On 28 June 2006, the appellants initiated their appeal against the default judgment and related orders. 

5.	On the hearing of the appeal, the respondent alleged, without identifying probative evidence, that the appellants’ institution and conduct of the appeal was tainted by fraud and was an abuse of process.

6.	On 23 February 2023, after numerous earlier interlocutory applications, the Supreme Court, constituted by a bench of which Logan J was a member, decided that an application by the respondent for directions as to the manner of challenging a failed slip rule application heard by a single judge of the Supreme Court should be dismissed and the substantive appeal listed for hearing - Kalinoe v Putupen [2023] SC 2356.

Held:
1.	It was for the respondent to distinctly allege and prove any fraud or abuse of process in the institution and conduct of the appeal. In the absence of supporting evidence, the allegation was baseless.
2.	The participation by Logan J as a member of a Supreme Court bench which delivered judgment in respect of an earlier interlocutory issue and which entailed no observations whatsoever as to the prospective merits of the substantive appeal did not occasion a reasonable apprehension of bias, much less prove actual bias. 

3.	The order made by the primary judge striking out the defence and entering default judgment against the appellants was an interlocutory, discretionary, value judgement in respect of a matter of practice and procedure. The appellants being unable to show any error of principle in respect of the exercise of that discretion. Therefore, the appeal should be dismissed.

Cases cited

Adam P. Brown Male Fashions Pty Limited v Philip Morris Inc. [1981] HCA 39; (1981) 148 CLR 170
Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621
Bank South Pacific Limited v Serowa (2016) SC1496
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333
Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106 
Chan v Ombudsman Commission of Papua New Guinea [1999] PGSC 40; [1999] PNGLR 240
Curtain Bros (PNG) Ltd v University of Papua New Guinea [2005] PGSC 35
In Re the Will of Gilbert (1946) LR (NSW) 318
Jonesco v Beard Jonesco v Beard [1930] AC 298
Kalinoe v Putupen [2023] SC2356
Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690
Paraka v The State [2025] PGSC 93; SC2792
QYFM v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 279 CLR 148
Scottish Benefit Society v. Chorley (1884) 13QBD 872
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1

Counsel

Mr T Cooper, for the appellant
L Putupen, the respondent, in person

1.	BY THE COURT: The plot of the novel “Bleak House” by the famous English author, Charles Dickens, concerns the seemingly interminable progression through the Courts of Chancery of a fictional probate proceeding, Jarndyce v Jarndyce, to the point where, notwithstanding that the inheritance at issue is large, it is virtually entirely consumed by legal costs coming out of the estate. 
2.	With all respect to the parties, the present appeal and yet further, related interlocutory applications have provoked thoughts about that fictional case. That fictional case may in the present case have a real-world analogue, given the extent to which, if damages ever come to be assessed, they will bear any relativity to the costs occasioned to the parties, especially given an inevitable differential as between party and party and solicitor client costs.
3.	Mr Lyons Putupen, the respondent, obtained from the National Court on 5 May 2006, a judgment in default with damages to be assessed. The appellants sought and, on 15 June 2006 obtained, leave to appeal against that default judgment. On 28 June 2006, the appellants initiated their appeal against the default judgment and related orders.
4.	The National Court proceedings (WS No 105 of 2004) were commenced by Mr Putupen on 13 February 2004. In those proceedings, he alleged that, in breach of contract, he was wrongfully dismissed from his then teaching appointment at the University of Papua New Guinea. 
5.	The default judgment was ordered by the then motions judge on the ground that the present appellants had failed to allow Mr Putupen inspection of documents discovered by them in a list of documents and a related failure by the appellants to respond to a letter from Mr Putupen requesting inspection of those documents. Order 9, rule 15(1)(b) of the National Court Rules contemplates that a defence might be struck out and a default judgment made in such circumstances. It provides:
Default. (23/15)
(1)	Where a party makes default in … producing any document as required by or under this Division, the Court may make such order as it thinks fit, including—
…
(b) 	if the proceedings were commenced by writ of summons and the party in default is a defendant—an order that his defence be struck out and that judgement be entered accordingly.

6.	The appellants accepted that the National Court possessed the power to make the orders striking out their defence and entering judgment for damages to be assessed.
7.	Instead of coming directly to whether the appeal had any merit, Mr Putupen raised some preliminary issues. Especially given the very lengthy history of this appeal, we decided that it was in the interests of justice that we hear submissions in respect of the substantive appeal as well as the preliminary issues. That was on the basis that, if these preliminary issues had no merit, we would then go straight on, without any need for a further hearing, to determine the appeal on the merits.
8.	Mr Putupen made, without any evidentiary foundation, generalized allegations of fraud on the part of the appellants and alleged that the appeal was an abuse of process. While it was evident from Mr Putupen’s demeanor that he undoubtedly does feel his dismissal from his tertiary educational employment well-nigh two decades ago visited an injustice upon him, and that the appellants’ conduct in relation to his inspection of discovered documents and responses to his various interlocutory proceedings fit a pattern, that does not prove fraud or abuse of process in the institution or conduct of the appeal. 
9.	It is well-settled that allegations of this kind must be distinctly alleged and proved: see, for example, Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, at [52] - [53] per Lord Hope of Craighead. The party making such allegations bears the onus of proof.
10.	Mr Putupen went so far as to tender to us a notice he had given the appellants requiring these allegations to be heard and determined by a separate action in the National Court. There is a principle that a perfected judgment can only be set aside on the basis of fraud by a separately instituted action in which the allegation of fraud is distinctly particularised and proved: Mali v Independent State of Papua New Guinea [2002] PGSC 4; SC690 and Jonesco v Beard Jonesco v Beard [1930] AC 298 at 300-301. However, that has nothing to do with whether, as instituted and prosecuted, the appeal is attended with fraudulent behavior by the appellants or is otherwise an abuse of process of the court. It is for Mr Putupen to demonstrate such conduct to this court by evidence. We do no more than observe that he has not done this. There is therefore no substance in this preliminary issue raised by him. Indeed, in the absence of supporting evidence, the allegation should never have been made. 
11.	Mr Putupen’s other preliminary issue was that Logan J should recuse himself and that the hearing of the appeal should, as a necessary consequence of a necessary recusal, be adjourned to allow the bench to be reconstituted.
12.	This preliminary issue raises nice questions of practice and procedure. How should a recusal application in respect of one member of a multi-member bench be dealt with? Should it, at least in the first instance, be dealt with by the judge who is asked to disqualify him or herself? Or should it be dealt with by the whole bench?
13.	The subject is one which has divided the High Court of Australia. In QYFM v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 279 CLR 148. Kiefel CJ and Gageler J considered that the question ought to be decided by the whole bench, while Gordon, Edelman and Steward JJ considered that was appropriate for the question to be decided by the subject judge in the first instance, and then by the whole bench if the objection were renewed by the applicant or upon the court’s own motion when it assessed its jurisdiction. Jagot J considered that the question ought to be decided by the subject judge alone. The remaining judge, Gleeson J, preferred not to express a view on the subject.
14.	The most recent Papua New Guinea example of which we are aware is Paraka v The State [2025] PGSC 93; SC2792. In that case, separate allegations of apprehended bias were made against two of the three members of a multi-member bench. Albeit without expressly referring to the question of whether the disqualification applications might permissibly have been dealt with in some other way, the bench as a whole considered the applications. 
15.	There is a certain convenience in an application for disqualification being dealt with by the judge who is the subject of the recusal application. However, that convenience disappears when it is recalled that the jurisdiction to hear and determine an appeal is conferred on the Supreme Court, and thus on a multi-member bench, not on a single judge, and that the judge the subject of the recusal application may decide that the case is not one for recusal. Each member of a multi-member bench has an interest in ensuring that the jurisdiction invoked by the institution of an appeal is exercised by a bench no member of which is disqualified from sitting by reason of actual or apprehended bias. 
16.	Such considerations persuade us that the application in relation to Logan J is better dealt with by the whole bench. In effect, that adopts the views of Kiefel CJ and Gageler J in QYFM. It is also consistent with the way in which the Court dealt with the recusal applications in Paraka v The State. As it happens, neither Mr Putupen nor the appellants urged that, for example, the recusal application ought to be dealt with by Logan J in that first instance.
17.	On 23 February 2023, the Supreme Court, constituted by a bench of which Logan J was a member, decided that an application by the respondent for directions as to the manner of challenging a failed slip rule application heard by a single judge of the Supreme Court should be dismissed and the substantive appeal listed for hearing - Kalinoe v Putupen [2023] SC 2356.
18.	It was this involvement to which Mr Putupen pointed as the basis upon which he submitted that Logan J should recuse himself.
19.	Section 2 of the Supreme Court Act 1975 offers a necessary starting point for a consideration of the merits of the recusal application. It provides:
2. 	JUDGE SITTING ON APPEAL FROM HIS OWN JUDGMENT.
(1)	Subject to Subsection (2), a Judge shall not sit as a member of the Supreme Court if he has previously adjudicated (whether on appeal or otherwise) on the merits of the case.
(2)	A Judge is not precluded from sitting as a member of the Supreme Court in cases where he has given an interlocutory judgment only, or any other judgment not going to the merits of the case.

20.	Kalinoe v Putupen entailed only a determination on a preliminary point of practice and procedure. It entailed no determination, or even the expression of preliminary views, as to the merits of the substantive appeal. For Logan J to sit on the present appeal therefore entails no transgression of s 2(1) of the Supreme Court Act. Rather, his Honour’s participation in the hearing and determination of the appeal falls squarely within the exception for which s 2(2) of that Act provides. That exception appears to have been inserted out of an abundance of caution so as to make clear that mere involvement in the hearing and determination of an interlocutory issue offers no ground for the judge concerned to be disqualified from participating in the later hearing of the substantive appeal. 
21.	The Court delivered a joint judgement in Kalinoe v Putupen. Apart from dealing with the merits of the interlocutory issue, the joint judgement contains an exhortation for the parties to consider compromising the proceeding, given the length of time it has been in the court list and overt recognition that, if this is not possible, the appeal needs hearing soon.
22.	There is nothing in the reasons for judgment in Kalinoe v Putupen which might lead a fair-minded observer reasonably to conclude that Logan J might be biased. Those reasons most certainly do not offer any evidence of actual bias on the part of Logan J.
23.	There is therefore nothing which would require Logan J to recuse himself from hearing and determining the present appeal. This preliminary application must therefore also be dismissed. That being so, we proceed to determine the appeal on its merits.
24.	A convenient starting point is to set out a pertinent extract from the hearing of the interlocutory application in the National Court on 5 May 2005 which resulted in the making by the primary judge of the orders under appeal. At that hearing, as he did before us, Mr Putupen appeared on his own behalf. The appellants were then represented by a lawyer, Mr Kongri. 
HIS HONOUR: So, the basis of the application is not what happened prior. The basis of this application is, you filed the second list, he wanted an inspection, he asked for a convenient date by his letter of 16 April 2005, no response from your firm, he then gives his letter subsequent.
MR KONGRI: No, your Honour, that is not correct. His request for an inspection of the list of documents relates to the first list of documents. He says he did not accept the second list of documents.
HIS HONOUR: Okay, whatever the position is, no inspection took place under the first list.
MR KONGRI: No.
HIS HONOUR: Or did an inspection take place?
MR KONGRI: No, there was no inspection.
HIS HONOUR: All right. So he has given you a date; given you to tell him when he could do the inspection under the first list or the second list, whatever. He wanted an inspection on 16 April. That is the time he wrote and the crucial letter is the last line, "give me your convenient date and time." You have not?
MR KONGRI: No. As far as I can see, we have not done that.
HIS HONOUR: And you have not done that on the follow up, seven days limitation notice; giving you seven days to give him inspection or else he comes to court. 
MR KONGRI: No, your Honour.
HIS HONOUR: All right, I do not think there is much of an argument there. I will grant the relief sought, which is to strike out the defence and judgment for the plaintiff with damages to be assessed.
MR KONGRI: Thank you.
MR PUTUPEN: Thank you, your Honour. I have another matter on the list, number 10.
HIS HONOUR: Wait a minute. The defendant's defence is struck out for failure to give discovery in terms of facilitating or allowing inspection of documents when requested. Judgment for the plaintiff with damages to be assessed. Number 3, costs to the plaintiff. The matter will go for directions hearing on 25 May.
25.	A feature of this interlocutory hearing was that the appellants took no issue with whether in some way the application made by Mr Putupen was flawed by delay.
26.	On 5 May 2006, the primary judge was discharging the role of motions judge, dealing with a list of interlocutory applications of which Mr Putupen’s application was but one. Although accuracy and candor is a professional duty owed by counsel to the bench in relation to all appearances in court, that duty assumes a special importance in a busy motions list. The administration of justice would become very tardy indeed if a motions list judge were not able to rely and then act upon summaries and conceded propositions of fact and law offered to the bench by a lawyer for a party, rather than devoting time to reading through what may be lengthy supporting affidavits. 
27.	It is evident from the excerpted exchange between Mr Kongri and the primary judge that, although inspection of discovered documents had been sought by Mr Putupen, and although he had even gone to the extent of requesting from the appellants via their lawyers a suitable time, not only had inspection not occurred but he had not even had the courtesy of a response to his request.
28.	As already noted, it is conceded by the appellants that the primary judge had the power to make the subject orders. Whether to exercise that power in response to this factual position as conceded by Mr Kongri on behalf of the appellants was a matter for the exercise of a judicial discretion. 
29.	It is irrelevant in relation to a challenge to a decision on a matter of practice and procedure which entails the exercise of judicial discretion whether the members of an appellate court would have so exercised that discretion. What must be shown by an appellant is that no judicial officer could reasonably have exercised that discretion in that way. Alternatively, it must be shown that the exercise of that discretion was attended by an error of principle. The following statement by this Court in Curtain Bros (PNG) Ltd v University of Papua New Guinea [2005] PGSC 35 encapsulates the position:
(2)	The grant of summary judgment under O 9 r 15(1)(b) for failure to give discovery is discretionary. The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is "unreasonable or plainly unjust" and such that an error can be inferred.

30.	There was no novelty in this statement in Curtain Bros. Clarkson J had earlier made observations to like effect in Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106 at p.112 – 113. These, in turn, applied to practice in Papua New Guinea observations made by Kitto J in Australia Coal and Shale Employees’ Union v The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 at 627.
31.	Curtain Bros also offers a reminder that a party may not save up and seek to rely upon for the first time on appeal some aspect of practice and procedure which might have been relied upon but was not in resisting the making of the order under appeal. 
32.	Even when pressed during oral submissions, Mr Cooper for the appellants was unable to identify with precision any error of principle which attended the orders made by the primary judge. In the end, he was left with a submission that in the prevailing circumstances the order made was unreasonable. We disagree. It is certainly a strong thing via a default judgment with damages to be assessed  to shut out from a trial on liability a defendant who has filed a defence. But the Rules contemplate that such a step might occur. Even after the conceded events had occurred and faced with an application for judgment in default, the appellants did not move to facilitate inspection by Mr Putupen of the documents which they had discovered, perhaps also offering to pay his costs incurred to date. Against all of this background, we are unable to conclude that the response of the primary judge by the making of the orders under appeal was unreasonable.
33.	What follows is that the appeal must be dismissed.
34.	We do not wish it to be thought that the outcome of the appeal on this basis carries with it by implication some criticism of the judge who granted leave to appeal. Invariably, there is an impressionistic quality in relation to the disposal of leave to appeal applications which may not survive the opportunity for more detailed scrutiny offered by the hearing of the consequential appeal. There are many authorities in this jurisdiction, of which Chan v Ombudsman Commission of Papua New Guinea [1999] PGSC 40; [1999] PNGLR 240 offers an example, and elsewhere, notably In Re the Will of Gilbert (1946) LR (NSW) 318 and Adam P. Brown Male Fashions Pty Limited v Philip Morris Inc. [1981] HCA 39; (1981) 148 CLR 170, which caution against too ready a disposition to interfere with interlocutory, discretionary, value judgements on matters of practice and procedure. That caution should certainly attend deciding whether to grant leave to appeal in such cases.
35.	As to costs, we raised as a threshold question whether, although a lawyer, Mr Putupen had any entitlement to an order for costs, given that he was acting for himself. We did so because, quite recently in Australia, the High Court has chosen to evolve the common law of Australia such that a person in Mr Putupen’s circumstances does not have any entitlement to legal professional costs, only to outlays: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333. The position at common law in England is different (although since varied by statute). Although usually a litigant in person is entitled only to outlays and not, for example, to recompense for the time spent in preparing a case, there is an anomalous exception that, where the litigant in person is a lawyer, professional costs are nonetheless allowable: Scottish Benefit Society v. Chorley (1884) 13QBD 872. That exception was recognised by Higgins J in Bank South Pacific Limited v Serowa (2016) SC1496.
36.	Mr Putupen submitted that the position in Papua New Guinea remained as stated in Chorley. Accordingly, he submitted that his status as a litigant in person did not disentitle him to an order for his professional costs. In response, Mr Cooper for the appellants conceded that this was the position. In these circumstances, it would be inappropriate for us to embark on a re-examination of that position. 
37.	It does not follow from this that Mr Putupen should receive all of his costs. As Mr Cooper highlighted in submissions, Mr Putupen has succeeded on the substantive appeal but not on any of the preliminary applications also heard today. To order an issues-based taxation would in our view introduce an undesirable complication into already greatly prolonged litigation. The same would apply to making orders that costs follow the event in respect of the preliminary applications and the appeal and directing that one be set off against the other. It is preferable in our view to exercise the costs discretion in a way which recognises the relative forensic success and failure in respect of the issues heard and determined today by a percentage-based costs order. Necessarily, that is a robust exercise. In our view, recognizing that Mr Putupen has succeeded in the substantive appeal but not in his preliminary applications, the order which should be made is that, without prejudice to interlocutory costs orders already made, Mr Putupen should receive 80% of his costs of and incidental to the appeal, including reserved costs, to be taxed on a party and party basis if not agreed.
38.	The proceedings must now be returned to the National Court for the assessment of damages.
Orders:
1.	The respondent’s preliminary application that the appeal be dismissed on the basis that, as instituted and conducted it is attended with fraud by the appellants or is an abuse of process be dismissed.
2.	The respondent’s further preliminary application that Logan J is disqualified from participating in the hearing and determination of the appeal be dismissed and, accordingly, the respondent’s application that the hearing of the appeal be consequentially adjourned be dismissed..
3.	The appeal be dismissed.
4.	The proceedings be remitted to the National Court for the assessment of damages in accordance with the default judgement of 5 May 2006.
5.	Without prejudice to interlocutory costs orders already made in the proceedings in this Court, the appellants pay 80% of the respondent’s costs of and incidental to the appeal, such costs not to include those of and incidental to the preliminary applications dismissed this day, to be taxed on a party and party basis if not agreed.
______________________________________________________________________________________
Lawyers for appellant:    TL Cooper Lawyers
Lawyers for respondent:   Lyons Putupen & Associates Lawyers Limited