SC2775
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCAPP NO. 70 OF 2024

IN THE MATTER OF A REVIEW PUSUANT TO SECTION 155(2)(b) OF THE CONSTITUTION

AND
IN THE MATTER OF AN APPLICATION FOR REVIEW OF A DECISION OF THE NATIONAL COURT IN PROCEEDING EP (MP) NO. 01 OF 2019

BETWEEN:
PETER CHARLES YAMA
Applicant

AND:
NICKSON KIUK
Respondent

WAIGANI:   DINGAKE J
1 AUGUST, 2, 12 SEPTEMBER 2025

APPLICATION FOR LEAVE - to review judgment – Criteria for grant of leave for review – Application to facts – Whether leave for review should be granted – Application upheld

Cases cited
Aihi v The State (No 2) [1982] PNGLR 44
James Joseph Pang v Richard Wong and Irene Wan Xia Seeto [2024] PGSC 57; SC2589
Aeno v Sapizae [2019] PGSC 25; SC1789
Southern Highlands Provincial Government v Kalu [2016] PGSC 79; SC1568
PNG Power Ltd v Gura [2014] PGSC 48; SC1402

Counsel
Mr. Kevin Makeu for the applicant
Nickson Kiuk, the respondent, in Person

JUDGMENT

1.	DINGAKE J: INTRODUCTION: This is my decision on an application for leave to review a decision of the National Court, in proceedings EP (MP) No. 01 of 2019 delivered on the 18th of March 2020; brought pursuant to s.155(2)(b) of the Constitution.

2.	The leave application was filed on the 13th of November 2024.

BACKGROUND

3.	The genesis of this matter is a long-standing taxed Bill that the Respondent says he served on the Applicant but remains unpaid to date. It relates to legal services that the Respondent rendered as a lawyer to the Applicant over some election petition matters. The Bill was taxed and certified by the Registrar. 

4.	Frustrated by non-payment, the Respondent moved to have the Bill converted to judgement pursuant to Order 22 Rule 62 of the National Court Rules.

5.	The record shows that on the 18th of March 2020, this matter served before Makail J. The matter commenced at 10:07am.

6.	At the end of the hearing the Court entered judgement in favour of the Respondent in the sum of K1, 278,182.40 with costs.

7.	The record shows that the Applicant was represented by Mr. Tamarua. Mr Tamarua submitted before the lower Court that the costs sought were exorbitant.

8.	The Applicant seeks review on a number of grounds. It is convenient to summarise the main grounds as follows:

a)	That there was no proper service of the originating process (Application for taxation) and the application pursuant to Order 22 Rule 62 of the National Court Rules).

b)	That Lomai & Lomai Attorneys were not instructed in this application and never filed an intention to defend or oppose and therefore that any service on the said lawyers would not be valid.

c)	That the Court exercised its discretion wrongly, in failing to find among others, that the taxed Bill was exorbitant.

d)	The primary proceeding EP No. 01 of 2014 was actually determined in favour of the Applicant on 6th August 2014 for which costs were ordered against the opposing party and therefore any costs would have been pursued as against the opposing parties and the Respondent never disclosed this to the Court as to whether or not he had pursued costs as against the other party.

e)	That the Respondent application should have been dismissed for want of form as it offended Order 22 Rule 62 of the National Court Rules.

f)	That there was no scrutiny of the taxed Bill by the Court.

g)	That the Court erred in law in conducting a hearing and entering judgment based on an incompetent application that had no basis in law or under the National Court Rules.

EVIDENCE OF THE APPLICANT

9.	The effect of the evidence of the Applicant in totality is that he was not aware of the taxation proceedings filed by the Respondent, as the said proceedings were not served on him. He also says he was never served with the application to convert the taxed Bill into judgment and the eventual judgment sought to be reviewed. He says the Court documents were served on Lomai & Lomai Attorneys, but the said Law Firm had no instructions on the matters herein.

10.	The affidavit of Dr. Ben Lomai Doc 25, filed on the 29th of November 2024, says that he is the principal lawyer of Lomai & Lomai Attorneys. He says that he had no instructions from the Applicant with respect to the Respondent’s taxation matters. He says that Lomai & Lomai former clerks signed off on documents which were served at their offices without his consent.

11.	Dr. Lomai also confirms that Lomai & Lomai Attorneys never filed any Notice of Appearance, Intention to Defend or Objections to the Applications for taxation filed by Kiuk Lawyers.

12.	Dr. Lomai also says that he knows Counsel Ryhen Tamarua from his law firm and that he attended one of the hearings of the applications for judgment, but that Counsel was mistaken as they did not have instructions to act.

13.	The Applicant avers that he only came to know about these matters in March 2024 and that between March – August 2024, he caused a search to be conducted at the registry to understand what could have happened. He says the search was involving, as it is concerned, about 25 cases dating back as far as 2012.

EVIDENCE OF THE RESPONDENT

14.	The evidence of the Respondent is to the effect that the Applicant was properly served with all relevant documents with respect to the above matters by way of registered mail addressed to the known address of the Office of the Governor for Madang. He says there was no indication from Post PNG Ltd that the documents were not delivered. He also says Lomai & Lomai Attorneys represented the Applicant at the material time.

15.	The Applicant also avers that even if the Court was to start counting from the date the Applicant claims to have known about these matters he still delayed by 9 months as the leave application was filed on the 13 November 2024.

SUBMISSION OF THE PARTIES

16.	The Applicant submitted that he had made out a case for leave to be granted. 

17.	The Applicant further submitted that:

a)	The Applicant did provide a reasonable explanation as to why an appeal was not filed within time; and

b)	There are meritorious grounds of appeal which also amount to there being exceptional circumstances; and

c)	The interest of justice requires that the judgment sum be revisited properly to avoid unjust enrichment.

18.	The Respondent argued that the Applicant failed to make out a case for leave and same should be refused.

19.	The Respondent submitted that he had rendered legal services to the Applicant as his lawyer and raised a Bill of costs that was taxed and properly converted into judgement.

UNDISPUTED FACTS

20.	It is common cause that in relation to the Application for judgment Lomai & Lomai Attorneys never filed any Notice of Appearance or Notice of Intention to Defend and or oppose.

21.	It is not in dispute that the Applicant allowed the 40 days permitted for the appeal to be filed against the decision of the National Court to expire.

22.	The Leave Application was filed on the 13th of November 2024.

THE LAW

23.	Leave is required where the right of appeal has expired (Order 5(1) of the Supreme Court Rules; Avia Aihi v the State (No.2) [1982] PNGLR 44).

24.	It is trite law that where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted.

a)	It is in the interests of justice to grant leave; and

b)	There are cogent and convincing reasons and exceptional circumstances, e.g., some substantial injustice is manifest or the case is of special gravity; and

c)	There are clear legal grounds meriting a review of the decision.
(James Joseph Pang v Richard Wong and Irene Wan Xia Seeto [2024] PGSC 57; SC2589)

25.	In the case of Aeno v Sapizae (2019) PGSC 25; SC1798, I stated in relation to the aforesaid requirements that:

“In my mind the application ought to fail because there is nothing before me that establishes, among other requirements, that there are cogent and convincing reasons and exceptional circumstances, or that some substantial injustice is manifest or that the case is of special gravity or that there are clear legal grounds meriting a review of the decision, as required by relevant authorities. (See Aiva Aihi v The State (No. 1) (1981) PNGLR 81 and in Re Application of Herman Joseph Leahy (2006) SC855).”

26.	In the leading case of Southern Highlands Provincial Government v Kalu [2016] PGSC 79; SC1568, Injia CJ said at page 5:

“The criteria for grant of leave for review is settled in various decisions of this court: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, State v Toka Enterprises Ltd (2013) SC1266, Luke Marano v Jack Nouari (2013) SC1307. The applicant must have standing to bring the application. If the applicant is a party in the proceedings of the court below from which the judgment under review was given, the question of standing does not arise. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered. If the court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment. It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment.”

CONSIDERATION

27.	From a perusal of the evidence filed of record it seems to me that the Applicant may not have received the taxed Bill and or registered Court documents the Respondent dispatched to his office, especially the applications to convert the taxed certified Bill into judgement pursuant to Order 22 Rule 62 of the National Court Rules.

28.	An application to convert a certified Bill of costs is made pursuant to Order 22 Rule 62 of the National Court Rules, on motion. 

29.	In my considered opinion the said motion and or application supported by requisite affidavits must be served personally on the Applicant consistent with Order 4 Rule 43 of the National Court Rules that governs service of motions. This was not done in this case. I therefore hold that there is no evidence that the Plaintiff was served with the application pursuant to Order 22 Rule 62 of the National Court Rules. This constitutes a reasonable explanation why he didn’t appeal within time required and also why he delayed bringing the review within time and or within reasonable time.

30.	I must also point out that I have grave doubt, even assuming that service by registered mail was permissible, whether sending the documents to the official address of the Applicant would be proper given that the Applicant, is a natural person.

31.	In all the circumstances, I find as a fact, on the evidence, that the Applicant came to know about all the matters, the subject of this judgment in March 2024. This means that the Applicant delayed by about seven (7) months. The Applicant advances the reason that a substantial time between March 2024 and October 2024, prior to filing the leave application, was taken up by collation of relevant information regarding the cases from 2012-2015 and challenging the garnishee proceedings the Respondent brought against him.

32.	I am not entirely satisfied with this explanation. It is not a reasonable explanation why it took so long to instruct a lawyer to commence review proceedings. If it was a delay of a month or even two, it may, on generous consideration, be considered reasonable, but not more than the seventh month or seven months.

33.	Whilst I am not satisfied with the explanation given above, putting everything on the scales of justice: the delay of about seven months, the nature of the dispute, the amount of money involved, about K1 million in this case alone, justice requires that leave to review be granted. 

34.	In my mind it is in the interest of both parties that leave be granted so that the final amount due to the Respondent can be settled after a full ventilation of the issues by the parties.

35.	I have read the case of PNG Power Ltd v Gura (2014) PGSC 48; SC1402 with respect to the discretion to be exercised in terms of Order 22 Rule 62 of the National Court Rules.

36.	The Court expressed its opinion with respect to the requisite discretion in the following terms: 

“27. 	In our view the primary judge should have given consideration to whether the amount of the taxed costs for which judgment was sought:

a) 	was in accordance with what the law entitles a party to claim for costs and disbursements on a party party basis. We note Order 22 Rule 24(2) National Court Rules which provides for costs to be allowed as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.

b) 	were reasonable in the circumstances: Tolom Abai and Ors v. State (1998) N1762,

c) 	were supported by material evidence.”

37.	It is clear from the above that although the Court has a discretion it is required to apply its mind to the material before it to determine whether the amount sought is justified.

38.	In my opinion this case is of special gravity, if only for the amount involved.

39.	With respect to clear legal grounds that merit a review of the decision, the law is that I am not required to conduct a detailed examination, assessment and determination of the proposed grounds of review and the material placed before me. (Southern Highlands Provincial Government v Ronald Kalu (supra))

40.	I have carefully considered the grounds of review by the Applicant, and without engaging in any detailed examination of the proposed grounds, it is arguable, amongst others, that:

a)	That there was a proper scrutiny of the Bill as required, given that ex facie it appeared quite high.

b)	Dr. Lomai of Lomai & Lomai Attorneys filed an affidavit saying they were not instructed in these matters.

c)	The evidence shows there was no Appearance to Defend and or Oppose from the said attorneys.

d)	Given the above, the appearance of Mr. Tamarua, in this matter, may be a matter of significance. Dr. Lomai says it was mistaken.

e)	Given, (a), (b) and (c) above it is arguable whether the Applicant was properly heard and whether the principle of natural justice was not breached.

41.	In the circumstances, I am satisfied that exceptional circumstances have been shown to exist. This is because the Applicant has an arguable case whether, he was properly served with the requisite documents and or represented and or whether his right to be heard was violated or compromised, given that Lomai & Lomai Attorneys were not authorized to appear for him in this application pursuant to Order 22 Rule 62 of the National Court Rules.

42.	Given the circumstances of this matter, especially the point made above, the interests of justice require that leave be granted. 

43.	Consequently, I am satisfied that the application for leave to review should be granted.

ORDERS

(a)	The application to review filed on the 13th of November 2024 (SCAPP  70 of 2024) be granted.

(b)	The Costs of and incidental to the said application for leave to review shall be costs in the substantive review.
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Lawyers for the applicant	: Makeu Legal Services