SC2786

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 55 OF 2024

BETWEEN:
PIONEER DANGEROUS GOODS
SERVICES LIMITED
First Appellant

AND:
SANDY TALITA
Second Appellant

AND:
LUDWIG KOKO
Third Appellant

AND:
PATRICK PAUL
Fourth Appellant

AND:
FINANCE CORPORATION LIMITED
trading as FINCORP
Respondent

WAIGANI: MANUHU J, HARTSHORN J, POLUME KIELE J
30 SEPTEMBER, 14 OCTOBER 2025

SUPREME COURT APPEAL – decision subject of appeal is on primary court’s decision to dismiss notice of motion seeking to set aside  ex parte orders – whether set aside motion contained concise reference or any reference to court’s jurisdiction to set aside ex parte order of court – set aside motion did not contain concise reference or any reference to the court’s jurisdiction to set aside an ex parte order of court – primary judge did not err in dismissing set aside motion – appeal dismissed

Cases cited
CEO Telikom PNG Ltd v. Minj (2023) SC2437
Sisimolu v. Kaia (2024) SC2525

Counsel
Mr. J. Napu for the appellants
Mr. E. Ulach for the respondent

1. BY THE COURT: The National Court dismissed a Notice of Motion to set aside two ex parte orders (set aside motion) made against the defendants, now appellants, in proceeding OS 330 of 2023 on 10th May 2024 (Decision appealed). This is the decision on the contested appeal against the Decision appealed.

Background

2. The plaintiff, now respondent, commenced a proceeding against the appellants by originating summons seeking declarations and orders in respect of certain property. The respondent had advanced funds pursuant to a loan agreement and had been granted mortgage security. Default in making loan repayments was alleged by the respondent and it sought amongst others, orders to enforce its mortgagee rights and for the appellants to give vacant possession.

3. On 21st December 2023 the primary judge ordered summary judgment and on 25th April 2024 dismissed the second defendant’s notice of motion seeking to set aside the summary judgment, for want of prosecution.

4. On 10th May 2024 the primary judge made the Decision appealed.

Appeal

5. The appellants appeal on various grounds including that the primary judge fell into error in many respects. One of the grounds is that the primary judge demonstrated bias and apprehension of bias. This ground was withdrawn by counsel for the appellants during submissions.

6. One of the grounds of appeal is to the effect that the primary judge fell into error in placing greater weight on the form of the set aside motion than on the merits, contrary to Order 1 Rule 8 National Court Rules.

7. It is not in dispute that the set aside motion did not contain a concise reference or any reference to the court’s jurisdiction to set aside an ex parte order of the court.

8. Order 4 Rule 49(8) National Court Rules is:

“All Motions must contain a concise reference to the Court’s jurisdiction to grant the orders being sought. Motions not containing such reference will not be accepted for filing. If accepted by the Registry staff without such reference, and it goes before the motions judge, the Court may strike out the motion for being incompetent and for lack of form.”

9. Order 1 Rule 8 National Court Rules is:

“Non-compliance with any of these Rules, or with any rule of practice for the time being in force shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.”

10. It is clear, pursuant to Order 1 Rule 8 National Court Rules, that a court has the power to deal with a proceeding before the court in such a manner as the court thinks fit where there is non-compliance with a National Court Rule. In this instance Order 4 Rule 49(8) National Court Rules had not been complied with as there was no reference to the court’s jurisdiction to set aside an ex parte order of the court, as was being sought. Order 4 Rule 49(8) provides that all motions “must” contain a concise reference and so compliance with Order 4 Rule 49(8) is clearly mandatory: see CEO Telikom PNG Ltd v. Minj (2023) SC2437 at [31] and Sisimolu v. Kaia (2024) SC2525 at [36].

11. The primary judge specifically considered the non-compliance with the relevant rule by the appellants. In this regard, it is worthy of note that the transcript reveals that counsel for the appellants did not raise or reply to the issue of the appellants’ non-compliance with Order 4 Rule 49(8) National Court Rules.

12. In the above circumstances we are not satisfied that it has been established that the primary judge fell into error in dismissing the proceeding for one of the reasons he relied upon. That is the failure by the appellants to have a concise reference to the court’s jurisdiction stated in the set aside motion. The primary judge was entitled to dismiss the proceeding on this basis.

13. Given the above it is not necessary to consider the other grounds of appeal and submissions of counsel.

Orders

a) This appeal is dismissed

b) The appellants shall pay the costs of the respondent of and incidental to this appeal on a party/party basis is to be taxed if not otherwise agreed.
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Lawyers for the appellants:  Napu and Company Lawyers
Lawyers for the respondent: Posman Kua Aisi Lawyers