SC2776
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCAPP NO. 57, 58, 59, 60, 61, 62 & 71 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. 02 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, involving the matters mentioned at paragraph 2 below, delivered on the 5th of August 2021 brought pursuant to s.155(2)(b) of the Constitution.

2.	The leave application was filed on the 25th of October 2024 and 13th of November 2024 respectively.

BACKGROUND

3.	At the hearing of these applications, on 1st August 2025, the parties agreed that the following matters on account of their similarity be heard together: SCAPP No 57, 58, 59, 60, 61, 62, and 71 of 2024. The other matter being SCAPP NO. 70 of 2024 was adjourned to the 2nd of September 2025.

4.	The leave applications SCAPP 57 – 62 which were filed on the 25th of October 2024 sought leave of Makail J’s judgement handed down on the 5th of August 2021. The SCAPP No. 71 was filed on the 13th of November 2024. It is included in this decision.

5.	The matter of SCAPP No. 70 of 2024 was filed on the 13th of November 2024 and sought to review the decision of Makail J of the 18th of March 2020. This matter is not included in this decision.

6.	The genesis of all these matters 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. 

7.	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.

8.	The record shows that on the 5th of August 2021 EP (MP) 3 of 2019 (SCAPP No. 57 of 2024), EP (MP) 4 of 2019 (SCAPP No. 58 of 2024), EP (MP) 5 of 2019 (SCAPP No. 59 of 2024), EP (MP) 6 of 2019 (SCAPP No. 60 of 2024), EP (MP) 7 of 2019 (SCAPP No. 61 of 2024), EP (MP) 8 of 2019 (SCAPP No. 62 of 2024), served before Makail J. 

9.	With respect to EP (MP) 4 of 2019, which commenced at 1.42 pm on the 5th of August 2021 Judgement was entered in favour of the Respondent in the sum of K265,897.50, together with interest at 8 percent for the sum of K265,897.50.

10.	The record shows that the Applicant was not represented in the above matter. The Respondent informed the Court he had notified the lawyers for the Applicant that the matter was returning on that day.

11.	Similar Orders were made on the 5th of August 2021 commencing at 1.54 pm, concerning EP (MP) 3, 5, 6, 7, 8. There was also no appearance for the Applicant when these set of Orders were made.

12.	On the 18th of March 2020 at 10.34 am Makail J heard EP (MP) 2 of 2019 and entered judgement of K1,796,357.20 and costs against the Applicant and in favour of the Respondent. The record shows that the Applicant was represented by Mr Tamarua from Lomai & Lomai Attorneys. He unsuccessfully sought adjournment to obtain further instructions and beyond that did not assist the Court that much.

13.	The Applicant seeks review on a number of grounds that runs into a few pages, and on occasion overlapping. However, in the interest of efficiency the main grounds can be crisply summarized as follows:

a)	That there was no 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 these applications and never filed an intention to defend and or oppose and therefore that any service on the said lawyers would not be valid.

c)	That the Court exercised its discretion wrongly; and or that there was no proper discretion exercised by the Court.

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

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

EVIDENCE OF THE APPLICANT

14.	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.

15.	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.

16.	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.

17.	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 judgement, but that Counsel was mistaken as they did not have instructions to act.

18.	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

19.	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.

20.	The Respondent 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

21.	The Applicant submitted that he had made out a case for leave to be granted. The Respondent argued that the Applicant failed to make out a case for leave and same should be refused.

22.	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

23.	It is common cause that in relation to the Application for judgment pursuant to Order 22 Rule 62, Lomai & Lomai Attorneys never filed any Notice of Appearance or Notice of Intention to Defend, or to Oppose.

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

25.	The Leave Application was filed on the 25th of October and 13th of November 2024, respectively.

THE LAW

26.	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).

27.	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)

28.	In the case of Aeno v Sapizae [2019] PNGSC 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 a 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) SC 855).”

29.	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

30.	From a perusal of the evidence filed of record it seems to me that the Applicant may not have received the 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.

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

32.	Quite apart from the fact that the Respondent’s application was not properly served as indicated above, I have grave doubts, whether even assuming service by registered mail was permissible, service at the place of business of the Applicant, instead of his personal postal address would have been proper, given that the Applicant is a natural person. 

33.	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 and was therefore not aware of these proceedings. 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.

34.	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.

35.	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 seven month or thereabout.

36.	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, exceeding K4 million in total, (excluding SACPP 70 of 2024) requires that leave to review be granted. In my mind it is in the interest of both parties - that the final amount be arrived at after a full and fair ventilation of the issues by the parties.

37.	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.

38.	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.”

39.	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.

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

41.	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))

42.	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 some matters, ostensibly on behalf of the Applicant, 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.

43.	In the circumstances, I am satisfied that exceptional circumstances have been shown to exist. This is because the Applicant has an arguable case whether, given that Lomai & Lomai Attorneys were not authorised to appear for him in the application pursuant to Order 22 Rule 62 of the National Court Rules, he was properly represented and or whether his right to be heard was violated or compromised. As I indicated earlier, with respect to matters referred to in paragraph 9 and 11 the Applicant was not represented.

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

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

ORDERS

(a)	The application to review filed on the 25th of October 2024 and 13th of November 2024 (SCAPP  71 of 2024) be granted.

(b)	The Costs of and incidental to the said applications for leave to review shall be costs in the substantive review.
________________________________________________________________
Lawyer for the Applicant	:	Makeu Legal Services
Lawyer for the Respondent:	In Person