SC2781
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO 23 OF 2024

BETWEEN:
JOY HAROU JUFFA
Appellant

AND:
GARY JUFFA
Respondent

WAIGANI: MAKAIL J, PURDON-SULLY J, ANDELMAN J
30 SEPTEMBER, 3 OCTOBER 2025

SUPREME COURT APPEAL – family law – application for spousal maintenance – pleading requirements for claim of spousal maintenance– parties by their conduct progressed to final hearing having an opportunity to file evidence and submissions – trial judge determined to dismiss claim for spousal maintenance on the basis of inadequate pleadings – interest of justice required the trial judge to resolve the claim before him - Order for refusal of claim of spousal maintenance quashed – Order for remittance of matter for rehearing – Rehearing of claim for spousal maintenance – Supreme Court Act 1975 – Section 16(b), (c) & (d) – Matrimonial Cause Rules 2022 – O 14 r 4

Facts

The appellant appealed against the whole decision of the National Court on the basis that the trial judge erred in fact and law by finding that the appellant failed to plead a claim for spousal maintenance as an ancillary relief in the Petition for decree of dissolution of marriage, failed to disclose the facts relied on for a claim of spousal maintenance until the serving of submissions and that this created an unfairness to the respondent. 
Held:
1.	The appellant failed to plead a claim for spousal maintenance in the Petition and failed to set out any facts supporting such a claim in the supporting affidavit. 

2.	Making a reference to ‘maintenance’ in the Orders Sought in the Petition is a not a pleading. 

3.	The parties through their conduct agreed to resolve the issue of spousal maintenance at the final hearing.

4.	It was in the interest of justice for the trial judge to have dealt with the merits of the spousal maintenance claim.

5.	The trial judge erred in failing to resolve the merits of the appellant’s claim by dismissing the claim on the basis of inadequate pleadings.

Cases cited
Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] SC2280
Gould, Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694  
Ume More v UPNG [1985] PNGLR 41 

Counsel
Ms N Kasa, for the appellant
Ms E Daroa, for the respondent

1.	BY THE COURT: This is an appeal from a decision and orders of the National Court delivered on 20 March 2024 in proceedings styled as MC No 14 of 2019 – Joy Harou Juffa v Gary Juffa (the Decision). By Order 3 the court refused the Petitioner’s claim for spousal maintenance. 

Background 

2.	The appellant and the respondent were married in 1997. In 2019, some 16 years following separation, the appellant filed a Petition for dissolution of the marriage (the Petition). The appellant filed a supporting affidavit with the petition in which she referred to evidence of the circumstances of the marriage, her young age, lack of education and how the respondent’s threatening behavior towards her had kept her away from their two children.

3.	The Petition included a section titled ‘Orders Sought’. Under this heading there were nine orders listed, one of which included; “maintenance of herself, as well as maintenance backdated to 2003 or a compensation sum, and settlement of matrimonial property”. 

4.	The respondent filed an affidavit on 15 May 2023 stating that he only became aware of the claim by the appellant on or around 16 February 2023 by reading a notice in a newspaper which listed the matter for summary determination on 28 February 2023. The respondent’s solicitor appeared on 28 February 2023 and orders were made for the matter to proceed to final hearing.

5.	The hearing took place on 21 and 23 June 2023. The only issue in contest before the court was whether the appellant was entitled to spousal maintenance. Both parties relied on evidence and oral and written submissions. The appellant handed up her written submissions to the judge and to the respondent at the start of the hearing. The submissions, for the first time set out the methodology as to how spousal maintenance was to be determined.

6.	The trial judge found that as the respondent failed to file an answer to a petition for dissolution of marriage, as such he was deemed to admit the facts pleaded in the petition O 7 rule 9 of the Matrimonial Causes Rules 2022. 

7.	Secondly, that the appellant failed to plead and particularise spousal maintenance as ancillary relief in the petition as prescribed in O 14 r 4 of the Matrimonial Causes Rules 2022.

8.	The court found that had the spousal maintenance been pleaded in the Petition, the respondent may have filed an answer to it as he ‘strongly opposed the maintenance claim’ [19] Decision.

9.	The appellant relied on four grounds of appeal. During the hearing the appellant clarified that if the court was to find that the appellant failed to plead the matters prescribed in O 14 r 4 of the Matrimonial Causes Rules 2022, the appellant submitted that in the interests of justice, the trial judge ought to have disposed of the rules as the respondent was aware of the case against him and had a full opportunity to defend it.

Appeal Grounds 1 and 3: Whether the appellant did plead and particularise the claim for spousal maintenance pursuant to O 14 r 4 of the Matrimonial Causes Rules 2022.

10.	Subject to section 73 of the Matrimonial Causes Act 1963 the Court may make such orders as to spousal maintenance as ‘it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances”.

11.	 The Matrimonial Causes Rules 2022 relate to the practice and procedure of the National Court in its matrimonial causes jurisdiction and must be read together with the Matrimonial Causes Act 1963. Order 14 of the Rules deals with proceedings with ancillary relief, which includes spousal maintenance. 

12.	Order 14 r 1 defines “proceedings for ancillary relief” to include the maintenance of a party to any proceedings; s 1(1)(c) of the Matrimonial Causes Act 1963.

13.	Order 14 rule 4 is in the following terms:

Particulars in application for ancillary relief
(1) A claimant shall state in their application for ancillary relief— 
(a) the order sought by them; and 
(b) the facts on which the Court will be asked to make the order. 
(2) In any proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the claimant shall state in their application for ancillary relief particulars of —  
(a) the property, income and financial commitments of the claimant; and 
(b) the capability of the claimant to earn income; and 	
(c) the property, income and financial commitments of the spouse of the claimant, so far as they are known to the claimant; and 
(d) the capability of the spouse of the claimant to earn income, so far as it is known to the claimant; and 
(e) any financial arrangement in operation between the claimant and the spouse of the claimant; and 
(f) any order of a court, whether in Papua New Guinea or elsewhere, under which one of the parties to the marriage is liable to make payments to the other; and 
(g) the ownership of the home in which the claimant is residing, and the terms and conditions on which the claimant is occupying or otherwise residing in it. 
(3) Where the pecuniary resources of the parties to the marriage are relevant to the determination of proceedings for ancillary relief, not being proceedings of a kind referred to in sub-rule (2), the claimant shall state in their application for ancillary relief particulars of such of the matters referred to in sub-rule (2)(a) to (g) as are relevant to the proceedings. 

(4) Where any particulars specified in sub-rule (2)(c) or (d) are included in a petition or answer, particulars of the claimant’s means of knowing them shall be stated in the petition or answer. 
(5) Where particulars referred to in sub-rule (2)(c) or (d) are included in an affidavit, the person swearing the affidavit shall state in the affidavit particulars of their means of knowing them. 

14.	Order 14 rule 5 provides for a defence to proceedings for ancillary relief.
Defence to proceedings for ancillary relief 
(1) Where proceedings for ancillary relief have been instituted, the spouse of the claimant may, in a defence to the proceedings— 
(a) admit or deny an allegation in the application for ancillary relief that relates to the proceedings for ancillary relief; or 
(b) state any facts relevant to the proceedings for ancillary relief that they wish to be considered on the determination of the proceedings. 

15.	The respondent did not file a defence.

16.	The only reference to spousal maintenance in the Petition was under the heading ‘Orders Sought’. The affidavit in support of the Petition made no reference to the matters set out in O 14 r 4(2).

17.	The primary judge found that the appellant instituted proceedings by petition; O 14 r 1. No issue is taken with this finding.

18.	Order 14 rule 4(4) should be construed so that it is consistent with the language and purpose of all the provisions in the Matrimonial Causes Rules 2022, within O 14 and as a whole. Order 14 r 4 is concerned with the commencement of proceedings that involve ancillary relief. It sets out the particulars that must be set out in an application for ancillary relief. Order 14 r 5 sets out the particulars that must be set out in a defence against an application for ancillary relief.

19.	The purpose of the requirement in O 14 r 4 is to do the work of a pleading; that is to allow the other party a fair opportunity to meet the claim against it, secondly to define the issues so that questions of relevance and admissibility of evidence are transparent and thirdly to permit the defendant to make payment into court if they concede all or some of the claim; Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694.

20.	Order 14 r 4(5) permits the petitioner to include particulars of O 14 r 4(2)(c) and (d) in an affidavit, this is a reference to an affidavit that supports the petition and is filed together with the petition.

21.	In this case, the Petition filed together with the supporting affidavit failed to disclose the facts she relied on in seeking spousal maintenance. We do not consider that stating that a particular order sought is compliance with O 14 r 4 as there was no inclusion of material facts on which she sought to rely on.

22.	The appellant disputes that she did not meet the requirements in O 14 r 4 because in affidavits filed some four years after the Petition she stated facts relevant to O 14 r 4(2). We reject the appellant’s submission that O 14 r 4(5) refers to any affidavit filed through out the proceedings. If that was the case an unfairness would fall on the defendant as the person would not be able to understand the claim against them.

23.	However, there are instances where matters not pleaded are raised at trial without objection. In these circumstances they expand the pleaded case and may be subject of submissions for particular relief; Papua New Guinea Banking Corporation (PNGBC) v Tole.

The course of the trial

24.	The court was informed at the commencement at the hearing that the Petition was for a decree of dissolution of marriages and certain ancillary orders. No objection to this description was made by the defendant. Counsel for the respondent submitted that he disputed spousal maintenance on the ground of frivolity. The argument between the parties was only about the ancillary orders, which is spousal maintenance. The primary judge was referred to paragraph 14(f) of the Petition as a pleading of the ancillary order. 

25.	In transcript set out at AB 181 the primary judge stated; ‘the contested part of this petition is the ancillary orders being sought.’ This was confirmed by the counsel for the respondent.

26.	There is an exchange between the trial judge and counsel for the respondent at AB 184-185:

Ms Yauieb: Lastly, your Honour, the petitioner has not specifically pleaded her claim for spousal maintenance. Further too she has only provided recent letters from the department of personnel management with general figures of what is assumed to be earning capacities of the respondent.
His Honour: So how do you read paragraph 14(f) of the petition seeking maintenance for her - of herself as well as  maintenance backdated to mid-2003 for compensation? You still say she has not specifically pleaded for spousal maintenance?… She does not use the words, ‘spousal maintenance’ but how do you read that maintenance of herself as well as maintenance backdated to mid-2003 which is what I have been urged on this court by Mr Apo or his client. Is not that really what she's asking for, ‘spousal maintenance’?
Ms Yauieb: Yes, your Honour.... Essentially it is the respondent’s submission and position that the petitioner has not substantiated any claims for maintenance. She has not provided any laws to confirm that she is entitled to anything that she seeks. Again, the parties have been separated for 21 years. Soon after that separation she had moved in with another man, and he was being - she was being taken care of by this other man. She cannot come to court and claim for backdated maintenance given that she was in a de facto relationship…

27.	This exchange makes clear that the trial judge and both parties were operating on the understanding that the issue before the court requiring determination was whether the appellant was entitled to spousal maintenance. 

28.	 In paragraph 18 of the Decision, the trial judge stated that in a civil action one cannot raise a claim, a defence or seek relief that has not been properly pleaded. Reference is made to Ume More v UPNG [1985] PNGLR 41 and Papua New Guinea Banking Corporation (PNGBC) v Tole.

29.	So much is correct, if a matter is not raised in a pleading it can not be raised at the trial. This is the law and is reflected in court rules. However, where matters raised at trial are raised without objection that were not pleaded, ‘they may be the subject of submissions for relief...’ Papua New Guinea Banking Corporation (PNGBC) v Tole.

30.	It is clear from an examination of the transcript that the issue of spousal maintenance was the only issue in dispute between the parties. While we have found that the appellant failed to plead spousal maintenance in the Petition and the supporting affidavit, she did explicitly identify in the Petition that spousal maintenance was sought. 

31.	The defendant did not object to the appellant’s evidence and submissions as to spousal maintenance at the trial. He also filed evidence and made submissions that spousal maintenance should not be granted because he provided for the children, provided the appellant with some funds, as she has remarried and that the claim is unsupported by case law.

32.	The legal consequence of that is that the matter of spousal maintenance was before the court for its consideration and determination and the defendant cannot now ‘hack back at the pleadings’; Papua New Guinea Banking Corporation v Tole in reliance on Gould, Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 at p 517.

33.	The manner in which the trial was conducted demonstrates the acquiescence of the respondent to the course adopted, which was to resolve the issue of spousal maintenance on the merits of the claim.

34.	The appellant submitted on appeal that the trial judge ought to have exercised a discretion under O 20 r 3(a) to dispense with the strict compliance with the rules in light of the course and conduct of the case and that rules are designed to enable a proper conduct of a trial and should be dispensed with where it is in the interests of justice to do so; Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] SC2280 at [94].

35.	The appellant relied on the following matters;

a.	Despite it being an undefended suit the respondent was heard (without objection) on the question of spousal maintenance;
b.	The issue of non compliance with O 14 r 2 was not raised at the trial;
c.	The particulars of matters in O 14 r 2 were provided to the defendant before the trial.

36.	 The question here is essentially one of fairness in the conduct of the proceedings, in particular whether it was unfair for the trial judge to determine the matter by reference to a point which, at least by implication, was forsaken by the respondent and not raised by the trial judge. 

37.	In our view, to determine the trial on this technical footing was unfair to the appellant because she had not dealt with the point at trial. Of course, it may be said that the appellant was at fault for not filing a proper Petition so that a defence could have been filed by the respondent. However, the respondent well understood that the claim was for spousal maintenance and did not make good on filing a defence or seeking a strike out of the Petition or objecting to the appellant’s evidence. 

38.	There is a circularity in that argument because, from the way in which the case was fought, it is apparent that the step of filing a defence was not regarded as a necessary one by the trial judge as the respondent was permitted to file evidence and submissions as to why an order for spousal maintenance ought not be made.

39.	This aspect strengthens our conclusion that the trial judge erred. The trial judge alluded to this concern in [19] of the Decision where he stated that the defendant may have filed an answer to the Petition had the facts as to the maintenance had been properly set out. However, the defendant was given a full opportunity to respond to the evidence filed by the appellant prior to the hearing. The defendant made no claim before the trial judge that he was denied an opportunity to understand or meet the claim advanced by the appellate. The appellant was given no opportunity to address the issue that grounded the trial judge’s finding as to the consequences of failing to comply with O 14 r 4.

40.	It would be a denial of justice if the court failed to determine the matters to finality in circumstances where both parties raised no jurisdictional objection to the court’s power and by their conduct sought to have the matters resolved to finality.

41.	The Rules of Court are not an end in themselves but a means to an end in all matters before the Courts. Rules are a means to achieving a just resolution of the dispute between the parties. The rules are to be interpreted and applied with flexibility to do substantial justice; Church of Jesus Christ of Latter-Day Saints Inc v Kimas at [94].

42.	In this case, both parties raised submissions in reliance on substantial evidence on a single issue which was spouse maintenance. While the claim was not pleaded with particularity, it was identified in the Petition and understood by the parties by the time the matter was heard by the trial judge. 

43.	In these circumstances the trial judge did not exercise his discretion judicially to not determine the matter because spouse maintenance was not pleaded with particularity. The outcome is that justice has been denied to the appellant.

44.	 For these reasons, we find that it was an error of law for the trial judge to dispose of the matter on a technicality without providing an opportunity to the appellant to be heard.

Appeal Ground 2: Whether the appellant did raise considerations in O 14 r 14(2) of the Matrimonial Causes Rules 2022 in her evidence.

45.	This ground of appeal relates to the primary judge’s factual finding at [16] that several particulars enumerated in O 14 r 4(2) were only raised and addressed in the submissions.

46.	 On reviewing the evidence and submissions we are satisfied that in fact the submissions for the first time identified the facts they relied on and the manner in which they proposed those facts were to be considered in determining the amount of spousal maintenance to be awarded to the appellant.

47.	The trial judge in the Decision and the respondent in the appeal did not identify which of the particulars enumerated in O 14 r 4(2) were only raised and addressed in the submissions. On our assessment of the evidence, the particulars enumerated in O 14 r 4(2) were scattered throughout two affidavits filed by the appellant. As we have already stated the particulars enumerated in O 14 r 4(2) should be set out in the Petition and any supporting affidavit.

48.	The respondent submitted on appeal that the methodology and final amount of spousal maintenance claimed is required to be pleaded pursuant to O 14 r 4. This submission is not supported by the words in O 14 r 4(1) which is ‘the order sought by them’ and ‘the facts on which the Court be asked to make the order’. We do not read the words ‘order sought’ as a liquidated monetary amount. There is no warrant to read such a requirement into the words. In making an order for spousal maintenance the court is required to take into account a broad range of matters, these are set out in s 73 of the Matrimonial Cause Act 1963 two of which are means and earning of the parties . In our view, it is sufficient for a petitioner to state that ancillary relief is sought and the nature of such relief.  The petitioner must state in their application for ancillary relief particulars of matters set out in O 14 r 4(2).

49.	This ground of appeal is upheld.

Appeal Ground 4: Whether the court can consider the respondent’s evidence where he did not file any answer to the Petition

50.	The trial judge found that the respondent failed to file an answer to the Petition pursuant to O 7 r 9 and as such is deemed to have admitted the facts pleaded. Order 7 rule 9 is in the following terms:

9. Failure to admit, deny, etc fact alleged 
Where a person who is entitled to deny a fact alleged in a pleading filed in proceedings does not, in a pleading filed by them— 
(a) deny the fact, expressly or by necessary implication; or 
(b) state that they do not know and cannot admit the truth of the fact; or 
(c) admit the truth of the fact, they shall be deemed to have admitted the truth of the fact for the purpose of the proceedings.

51.	 Despite this finding the respondent was able to lead evidence and make submissions as to the ancillary order sought by the appellant.

52.	We see error in this course. If the trial judge determined that the ancillary order was not pleaded there should not have been a fully contested hearing on the merits of the ancillary order claimed.

53.	 The correct course was for the proceeding to be regularised so that both parties could have their dispute resolved in a fair manner. 

54.	We consider in circumstances such as these where a claim was not pleaded but merely identified in the orders sought and subsequently through the course of the claim both parties understood that there was a claim which went beyond the pleadings, the court ought to have made procedural rulings which would have cured any unfairness. 

55.	In this case, we consider it would have been most efficient and just for the appellant to file an amended Petition and for the respondent to file a Defence if he so wished. We also consider that both parties should have filed their submissions well before the final hearing so that there was notice as to the manner in which a party asserts any spousal maintenance is to be calculated.

56.	We uphold this ground of appeal.

Substitution of National Court Order 

57.	 Given our finding above and to do justice in the circumstances, we invoke our powers under Section 16(b), (c) & (d) of the Supreme Court Act 1975 which includes to “affirm” and “give such judgment as ought to have been given in the first instances” and “remit the case……in part for further hearing” and order in substitution of the National Court orders that: 

1.	The appeal is upheld.
2.	The Order of the National Court of 20 March 2024 for refusal of the claim for spousal maintenance is quashed.
3.	The matter is remitted to the National Court to be heard and determined according to law before another judge including:
a.	The appellant to file and serve an amended Petition within 21 days of this Order.
b.	The respondent is at liberty to file a defence within 21 days of the Petition being filed and served on him.

Costs

58.	 While the appellant is ultimately successful on appeal, her primary submissions that she complied with the pleading requirements in O 14(4) was unsuccessful. We consider in these circumstances that each party should bear their own costs. 

________________________________________________________________
Lawyers for the appellant: 	Public Solicitor
Lawyers for the respondent: 	Endoroa Legal Services