SC2751
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO.183 OF 2022 (IECMS)

BETWEEN:
CATHY AMAIU
Appellant

AND:
MARK WORINU
Respondent

WAIGANI: DINGAKE J, CAREY J, CROWLEY J
25 JUNE AND 10 JULY 2025

PRACTICE AND PROCEDURE- Service- Notice of Intention to Defend- Notice of Trial- Duties of Registrar to inform the parties of directions.

The Appellant was unsuccessful in the National Court after failing to file material pursuant to the National Court Rules and Court Directions. The learned trial judge proceeded to hear and determine the matter. After the decision the Appellant claimed she had not been served with the Notice of Trial. She further complained that the trial judge failed to consider that she had filed a Notice of Intention to Defend. She sought orders quashing the decision below. 

Held: 
1)	The Appeal is dismissed in its entirety.
2)	The IECMS indicated that the Appellant and/or her lawyers were notified of all relevant orders in relation to the trial. Further, even if the Trial Judge failed to consider that she had filed a Notice of Intention to Defend it was an inconsequential error because there was nothing else before him which provided evidence of her case. As such the trial judge was entitled to find against her on an ex parte basis.

Cases Cited
Leo Duque v Avia Andrew Paru [1997] PNGLR 378

Counsel
Mr T Yai for the appellant
Ms M Worinu for the respondent

REASONS FOR JUDGEMENT

1.	BY THE COURT: Cathy Amaiu (the Appellant) appeals against the decision of the trial judge of 28 October 2022. By that decision the learned trial judge declared Mark Worinu (the Respondent), the registered proprietor of the land formally owned by the Appellant. The land subject of the trial was Allotment 15, Section 72, Korobosea NCD (‘the subject land’). Before turning to the grounds of appeal, it is useful to note the background facts, including the findings of the trial judge the subject of this appeal.

BACKGROUND

2.	On 17 February 2021, the National Development Bank exercised its mortgagee rights and sold the subject land to the Respondent.

3.	 On 6 August 2021 the title to the subject land was transferred to the Respondent. 

4.	On 19 May 2022, the Respondent (by his legal representatives) filed an Originating Summons with a supporting affidavit in the National Court at Waigani. It became OS No. 27 of 2022 (originating documents).  By that Originating Summons, the Respondent sought several orders. The most pertinent were a declaration that he was the registered owner of the land and that the Appellant and her family vacate the subject land. 

5.	On 6 June 2022, the originating documents were personally served on the Appellant at the subject land. On 16 June 2022 Dotaona Lawyers filed a Notice of Intention to Defend on behalf of the Appellant. It became Document 4 in the file.

6.	On 23 September 2022 the matter came on for mention before another judge. The orders from that judge included that “The matter is fixed for Trial/Hearing on Wednesday 28 September 2022” and “The Plaintiff file and serve a Notice of Trial forewith” 

7.	It was further ordered that the Respondent file “...Affidavits subject to filing of Notice of Intention to Defend and Defence if she wish to defend the case by no later than 27th September 2022”. 

8.	Later on 23 September 2022, solicitors for the Respondent wrote a letter to the Appellant saying:
“Be advised that the judge, has ordered for the above matter to go to Trial/Hearing at 2:00pm on 28 September 2022. The Court also ordered for you to file Notice of Intention to Defend and Affidavits by no later than 27th September 2022 if you so wish to defend the claim. Formal Orders will be served on you on Monday, 26th September 2022 when we uplift sealed copies”

9.	On 26 September 2022, that letter was served on “an adult person [who] acknowledged and accepted service on behalf of the Defendant” at the subject property. 

10.	A Notice of Trial was filed saying “Take Notice that this cause will be tried at the Waigani National Court on 28th September 2022 at 2:00pm pursuant to Court Orders of 23rd September 2022.” It was dated 26 September 2022 but filed on 28 September 2022.

11.	The Appeal Book contains orders made by the judge on 28 September 2022 but there was no transcript. Those orders indicted that the trial date of 28 September 2022 was vacated. The matter was adjourned to Monday 10 October 2022 at 1:30pm “...for the Court to confirm a Judge and his/her availability to conduct the trial”. 

12.	The Appeal Book contains orders made by the trial judge on 10 October 2022 with no transcript. Those orders indicated that the trial was set for 19 October 2022. The second order was that “Registry to inform all the parties especially Cathy Amainu the defendant of the trial date”. 

13.	The Integrated Electronic Court Management System (IECMS) used at the Wagani National Court registry has an automated email system that communicates with the parties who are registered in the System. 

14.	IECMS indicates that the Appellant’s legal representatives Dotaona Lawyers were contacted through the Session Scheduling module on 3 October 2022. Further, through the IECMS Session Scheduling it is indicated that the Appellant and her lawyers were contacted on 10 October 2022.

15.	On 19 October 2022 the matter came before the trial judge. After taking note of the appearance of the Respondent’s legal representative, His Honour asked “All right, what about the defendant? Has there been any appearance from the other side?” to which counsel for the Respondent responded “So far there has not been any appearance...We have communicated to them of this proceeding a couple of times, numerous affidavits of service”. 

16.	The trial judge specifically asked whether the Appellant had been served and was told by Counsel for the Respondent that she had been. 

17.	The trial judge decided to hear the matter in accordance with the directions given by both the other judge and himself. He then heard brief oral submissions which supplemented the affidavit of the Respondent. 

18.	After they had finished the trial judge asked if the Appellant had filed a defence, noting that she had filed a Notice of Intention to Defend. This was the exchange: 

HIS HONOUR: Just before you- they did file some form of their defences? 
MR DUPRE: No defence, no--- 
HIS HONOUR: Sorry, notice of intention to defend? 
MR DUPRE: Notice to appearance, no.

19.	Though the trial judge considered giving orders on that day he concluded that “...it is proper for the protection of the registered proprietor to have a judgement in such a case so that there is no dispute as to or whether there is a proper order to vacate. Therefore, he adjourned the matter to the following Friday for delivery of his reasons.

20.	The following Friday was 28 October 2002. The Appellant was in the Court. After Counsel for the Respondent announced their appearance, the appellant asked if she could address the Court. His Honour said no, explaining that “[t]his is a ruling, time for talk is over. Court has got its own procedure and steps. This is the final step now to make a ruling-pass judgment on the matter.

21.	The trial judge then read his reasons into the record. In them he said the Appellant had “...not filed any notice of intention to defend nor any affidavit in compliance with the court’s directions of 23 September 2022.” This statement was not entirely correct because the Appellant had filed a Notice of Intention to Defend (though nothing else). 

22.	When the judgement was subsequently published, the front cover incorrectly identified the date as 22 October 2022. Though its clear the reasons for the decision were delivered extempore 28 October 2022 and the perfected reasons were published later. 

23.	We mention this because at the hearing of the appeal, Counsel for the Respondent based a substantial portion of her written and oral submissions on the fact that the Notice of Appeal (and several other documents filed by the Appellant) referred to the trial judge’s reasons for decision of 22 October 2022. Counsel for the Respondent sought to have the entire appeal dismissed on the basis that there were no such orders. 

24.	This argument is rejected. A typographical error on the cover of the published reason regarding their date of delivery, causing the Appellant to repeat that error in their filed documents, should not be determinative of this appeal. 

25.	After the decision of 28 October 2022, the Appellant vigorously pursued the matter. On 3 November 2022, her lawyers filed a Notice of Motion seeking to set aside the decision of the trial judge or to stay those orders. On 18 November 2022 the trial judge refused to do so. 

26.	On 25 November 2022, the Appellant filed this appeal against the decision of the trial judge and on 6 December 2022 she sought a stay of that decision in the Supreme Court. 

GROUNDS OF APPEAL

27.	The Appellant appeals on the grounds that: the learned trial judge should not have determined the matter ex parte because there was no evidence that the Appellant or her lawyers had been served with the Notice of Hearing or other pertinent orders; and the discretion of the learned trial judge miscarried because he failed to take into account the Notice of Intention to Defend filed by the Appellant.

GROUND 1- BREACH OF NATURAL JUSTICE

28.	The Notice of Appeal provides more detail to the first ground of appeal. Paragraph 3.1 a), b) and c) of that document complain that there was “no evidence” that the Notice of Hearing was served on the Appellant or her lawyers. Further that there was “no evidence” that the Court orders of 23rd September 2022, 28 September 2022 and 10 October 2022 were ever served on the lawyers for the Appellant or the Appellant herself.

29.	As identified above, a search on the IECMS indicate that the Appellant and her lawyers were served with the orders of 28 September 2022 and 10 October 2022. When this was put to Counsel for the Appellant at the appeal hearing he conceded that his client must have been served and that the first ground of appeal therefore had no merit. Therefore, the Appellant had been afforded natural justice. 

30.	Even if it was that the Appellant’s lawyers failed to alert her to the impending trial, there is authority of this Court that a lawyer’s negligent conduct in allowing his client to suffer default judgment is not a valid reason for setting aside default judgment: Leo Duque v Avia Andrew Paru [1997] PNGLR 378 (Dupue vs Paru). That reasoning is analogous to this case. Parties who are in default of appearing, have a judgment delivered against them without putting their case. 

31.	Though the Appellant was not in default because she had filed a Notice of Intention to Defend, she had not responded to any other order and as such had the matter decided against her without putting her case. It was suggested by her Counsel that her lawyer did not inform her of the Courts directions. But, as the case of Duque vs Paru makes clear, such negligence on the part of her legal representative is no protection from an ex parte order. 

GROUND 2- “ERRONEOUS EXERCISE OF DISCRETION”

32.	The Notice of Appeal breaks the second ground of appeal down into serval complaints. First, that failing to understand that the Appellant had filed a Notice of Intention to Defend led the learned trial judge to form the view that she “...did not have interest over the matter or case before the Court”. 

33.	The second, third and fourth reasons are that the trial judge then failed to inquire whether the court orders were served on the Appellant or her lawyers, failed to inquire if the Appellant was represented by lawyers and failed to enquire into “...the situation which prompted National Development Bank to sell...” the subject land.

34.	Finally, the Notice of Appeal identifies that the trial judge should not have dealt with the matter ex parte because it “...was still a fresh matter..”.

35.	As noted above, the orders of the trial judge of 10 October 2022 were that “Registry to inform all parties especially Cathy Amaiu the defendant of the trial date”. It was the responsibility of the Registry therefore to inform the Appellant which, the IECMS indicates, was done. 

36.	Order 10 Rule 9 of the National Court Rues provides that “The Registrar shall...give notice of trial in Form 41 to each party who has an address for service and who was not present or represented when the proceedings were set down for trial”. The responsibility for giving notice is with the Registrar. 

37.	This court is therefore persuaded that the Appellant was informed, and the trial judge did not commit any identifiable error in proceeding in the absence of the Appellant. 

38.	As to the notion that the trial judge failed to enquire into the “...the situation which prompted National Development Bank to sell...the subject land”,  he was entitled to proceed on the admissible evidence before him in the circumstances.

39.	The crux of the Appellant’s argument on this ground is that the Appellant lost an opportunity to present her arguments as to why the transfer of title of the subject land should be set aside. But has she lost that opportunity? Though she filed a Notice of Intention to Defend, she did not include a Defence that set out on what grounds she disputed the Respondent’s Originating Summons. 

40.	The Respondent had also filed an affidavit so that the Appellant was not in any doubt as to his claims. 

41.	In fact, the Appellant filed a detailed affidavit settling out her arguments. Unfortunately, that occurred only after the trial judge had delivered his reasons. There is nothing before the Court to indicate why she could not have filed that affidavit in June 2022 when she filed her Notice of Intention to Defend or after the orders of the other judge of 23 September 2022 or 28 September 2022 both of which directed her to do so. 

42.	Though it seems the trial judge proceeded on a mistaken belief that the Appellant had not filed a Notice of Intention to Defend it was an inconsequential mistake. Had he known of it and read it, it would not have enlightened him as to the Appellant’s case. His Honour was justified in concluding that the Appellant did not want to take part in the proceedings since she had not responded on the occasions the Court has directed her too. 

43.	There is nothing else for the court to consider as the Appellant concedes through her lawyer that the grounds of appeal are without merit.

44.	We further conclude that the Appellant was afforded natural justice but failed to make the necessary submissions or attend the trial. 

45.	As such this Court is satisfied that the trial judge did not commit any identifiable error and naturally as a consequence the appeal cannot succeed. 

THE COURT ORDERS THAT:
1)	The appeal is dismissed in its entirety.
2)	Costs to be awarded in favour of the Respondent against the Appellant, to be taxed if not agreed.
 ________________________________________________________________
Lawyers for the appellant: Bristle Lawyers
Lawyers for the respondent: Parker Legal