SC2789

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 17 OF 2025

BETWEEN
CONSTABLE THEOFINN SHISEI
Appellant

AND
DAVID MANNING, MBE, DPS, QPM as Commissioner of Police
First Respondent

ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WAIGANI:  DAVID J, COLLIER J, FRANK J
28 OCTOBER 2025
  
PRACTICE AND PROCEDURE – Originating Summons seeking judicial review – leave granted for judicial review – directions made by National Court for filing of amended Originating Summons and Notice of Motion – judicial review hearing postponed because of Court events – failure of appellant to comply with directions and non-appearance at next directions hearing –  primary Judge dismissed proceedings for want of prosecution and non-appearance – Notice of Motion filed to set aside dismissal Orders – Notice of Motion to set aside dismissed for being incompetent – Notice of Motion filed in Supreme Court to set aside National Court Orders – appeal incompetent – Notice of Motion dismissed.

The appellant argued that orders of the primary Judge dismissing his Notice of Motion to set aside her Honour’s Order dismissing the proceedings should be set aside. The appellant filed an Originating Summons seeking leave for judicial review. Leave was granted. The matter was scheduled for hearing but was postponed. There was no appearance by the appellant on the date of the hearing and previous Orders requiring filing and service of the Notice of Motion for judicial review had not been complied with. The primary Judge dismissed the proceedings ex parte for want of prosecution. The appellant filed a Notice of Motion to set aside the dismissal orders. The Notice of Motion was dismissed for being incompetent and that decision is subject to this appeal.

Held:
The appeal is incompetent. First, it was open to the primary Judge to make dismissal orders where there was failure to comply with Orders and a failure to appear before the National Court. Second, once the appellant had failed to file Notice of Motion for judicial review in accordance with Orders, the leave granted by the National Court to file a Notice of Motion had expired. Third, and critically, the present appeal does not fall within the scope of any Supreme Court Rules. The appeal was incompetent and without merit and should be dismissed. Costs should follow the event.

Cases cited
Barry v Luma [2017] SC1639
Cragnolini v Leia [2023] SC2464
Kalgregos Electronics Limited v Manum Investments Limited [2024] SC2655
Tumbiako v Kaiyo [2023] SC2493

Counsel
Mr M Boma, for the appellant
Mr J Murian, for the respondents

EX TEMPORE RULING

1	DAVID J, COLLIER J & FRANK J: Before the Court is a Notice of Motion filed by the appellant, Mr Shisei, on 8 May 2025 to set aside a decision of the National Court of Justice of 7 April 2025. In the 7 April 2025 decision, the primary Judge dismissed the Notice of Motion (filed by the appellant on 3 March 2025) where the appellant had sought to set aside Orders of the National Court dated 4 February 2025. 

2	The Orders of the primary Judge made on 7 April 2025 were as follows:

(1)	The Notice of Motion filed on 3 March 2025 be dismissed for being incompetent.
(2)	Each party bear their own costs.
(3)	The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.

Background

3	The appellant filed an Originating Summons in proceeding OS(JR) 104 of 2024 on 23 October 2024 in the National Court seeking judicial review of the decision of the Commissioner of Police to terminate the appellant’s contract of employment.

4	On 10 December 2024, the matter went before the primary Judge for hearing of the appellant’s application for leave to seek judicial review. Leave was granted. On that date the National Court made the following Orders (leave application Orders):

1.	The plaintiff be granted leave pursuant to Order 16 Rules 3 (1) and (2) of the National Court Rules to apply for judicial review of the decision of the First Defendant to terminate the Plaintiff from the Royal Papua New Guinea Constabulary (hereafter “RPNGC”) by notice of penalty dated 1 August 2023. 
2.	Costs of and incidental to this application be in the cause.
3.	The Plaintiff forthwith file and serve an Amended Originating Summons removing the grounds of relief sought from the Originating Summons filed on 23 October 2024.
4.	Within 28 days of today’s date, the Plaintiff file and serve a Notice of Motion for Substantive Judicial Review and file an Affidavit of Service to that effect.
5.	The matter be adjourned to 3 February 2025 at 2:00pm for further directions.
5	Notwithstanding Order 5 of the leave application Orders, the Court did not sit on 3 February 2025 due to scheduling conflicts with the Church service marking the opening of the legal year. 

6	The hearing was postponed to 4 February 2025. The parties were notified of the adjournment by a notice affixed to the Courtroom door, and by the updated National Court list.

7	There was no appearance by the appellant when the matter was called on 4 February 2025. In oral reasons delivered ex tempore, the primary Judge observed in summary that:
•	The appellant had failed to comply with Orders 3 and 4 of the leave application Orders requiring filing and service of amended documents. 
•	The matter had been adjourned to 4 February 2025 however appropriate notice was given by way of notice on the Courtroom door and on the Court list.
•	The present respondents sought dismissal of the matter.
•	There was no appearance by the appellant.

8	In the circumstances, the primary Judge dismissed the proceedings ex parte for want of prosecution (dismissal Orders) in the following terms:

ORDER
The National Court orders that:
1.	The proceedings instituted by way of Originating Summons filed 23 October 2024 is dismissed by reason of:
a.	Want of Prosecution.
b.	Non-appearance on behalf of the Plaintiff.
2.	The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.
Ordered and entered at Waigani this 04th day of February 2025.

9	On 3 March 2025, the appellant filed a Notice of Motion seeking to have the dismissal Orders set aside pursuant to Order 16 Rule 13(13)(1), Order 12 Rule 8(3)(a), and Order 12 Rule 1 of the National Court Rules 1983. That application was heard on 7 April 2025. The primary Judge noted, in summary, in oral ex tempore reasons on that date:

•	The central issue in the proceeding was whether the appellant’s application was competent. In particular, a question was whether an application under Order 12 Rule 8 of the National Court Rules to set aside a previous final Order can be made after the entry of a final Order, without invoking Order 1 Rule 7, which allows the Court to dispense with strict compliance with the National Court Rules.
•	The Court considered conflicting Supreme Court authorities:
•	Barry v Luma [2017] SC1639, which required that an application under Order 12 Rule 8 must be filed before entry of judgment unless relief is sought under Order 1 Rule 7.
•	Cragnolini v Leia [2023] SC2464, which permitted an application by Notice of Motion even after entry of an ex parte dismissal Order.
•	The primary Judge adopted the reasoning in Barry v Luma, which was upheld in Kalgregos Electronics Limited v Manum Investments Limited [2024] SC2655, opining that those decisions properly interpreted Order 12 Rule 8 as a whole. Specifically, those authorities held that once a proceeding has been dismissed and judgment entered, the matter is final and cannot be revived by an interlocutory process such as a Notice of Motion.
•	The Court noted that the dismissal Orders were made on 4 February 2025 and formally entered on the same day, and that the plaintiff’s motion was filed after the dismissal Orders had been entered.
•	Her Honour noted that no application had been made by the appellant under Order 1 Rule 7 to dispense with procedural requirements for compliance with Order 12 Rule 8 of the National Court Rules.
•	Because the appellant failed to invoke Order 1 Rule 7, the Court held there was no power to consider the application and therefore ruled that the Notice of Motion was incompetent, and it did not matter if the Court was satisfied that there was a legitimate reason for the plaintiff’s non-appearance.

10	On 8 May 2025, the appellant filed the present Notice of Motion appealing the decision of 7 April 2025.

RELEVANT NATIONAL COURT RULES

11	Order 1 Rule 7 of the National Court Rules provides:

7. Relief from Rules
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
12	Order 12 Rule 1 of the National Court Rules provides:

1. General relief
The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process.
13	Order 12 Rule 8 of the National Court Rules provides:
8. Setting aside or varying judgement or order
(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.
(2) The Court may, on terms, set aside or vary a judgement—
(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or
(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or
(c) when the judgement has been entered in proceedings for possession o land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.
(3) The Court may, on terms, set aside or vary an order—
(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(b) where notice of motion for the setting aside or variation is filed before entry of the order.
(4) In addition to its powers under sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.
(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.
(emphasis added)
14	Order 16 Rule 13(13)(1) of the National Court Rules provides:
(1) Motions.
All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time.
Submissions
Submissions of the Appellant

15	Lengthy written submissions were filed by the appellant. They primarily focused on ground of appeal (1). Short submissions were made in respect of grounds of appeal (2), (3), (5) and (8). Grounds of appeal (6) and (7) were not pressed.

16	The submissions of the appellant can be summarised as follows, inter alia:
•	The appellant was not properly informed of the adjournment of the Court on 3 February 2025 to 4 February 2025. The appellant is not at fault for this. As such, the primary Judge should have exercised the inherent power of the Court and should not have made the dismissal Orders.
•	In any event, the appellant should have been given a reasonable opportunity to apply to set aside the dismissal Orders. The issue before the Court on 4 February 2025 was whether the appellant was out of time to file and serve materials for the substantive judicial review application. It follows that the primary Judge should have given the appellant the opportunity to make submissions on that issue in particular.
•	The dismissal Orders were not final or determinative – they were interlocutory. Therefore, they were not capable of finally concluding the proceedings.
•	The primary Judge erred in concluding that there was a proceeding on foot on 4 February 2025. At that time, the substantive judicial review proceeding had not yet commenced. Given the two-stage structure of judicial review (i.e., the leave application stage and the substantive review stage), each constitutes a separate proceeding. Accordingly, as the second stage had not been initiated, there was no substantive proceeding before the Court capable of being dismissed on 4 February 2025.
•	The primary Judge erred in finding that the appellant was out of time to file and serve materials as ordered on 10 December 2024. The Court has a vacation every year from 20 December to 31 January, and therefore the 28 days given in the Orders did not include that time period. The Orders did not indicate that the time period of 20 December to 31 January were included in the 28 days. The primary Judge should have allowed the appellant an additional 15 days to fulfil the orders. Even if the appellant was out of time to comply with those Orders, the length of time by which the appellant did not comply was not enough to warrant a dismissal of the proceedings.
•	The Court should prefer the authority of Cragnolini rather than Barry v Luma.
•	The appellant had a very strong case with overwhelming evidence in the substantive judicial review and therefore setting aside the dismissal Orders is in the interests of justice. The respondent would not be prejudiced if the dismissal Orders were set aside.
•	The use of the word “be” in the phrase “the notice of motion … be dismissed…” was erroneous and the correct word to use would have been “is”. As a result, the Order is defective and did not effectively dismiss the proceeding.
Respondents’ Submissions

17	In summary, the respondents submitted, inter alia:
•	The primary Judge correctly applied Kalgregos and Barry v Luma, which held that Order 12 Rule 8 of the National Court Rules must be read as a whole. The power to set aside an Order under this role is conditional upon the Notice of Motion being filed before the entry of the judgment or Order. The primary Judge was bound by the Supreme Court’s interpretation of Order 12 Rule 1 in Kalgregos and Barry v Luma.
•	The appellant was granted ample opportunity to be heard on the competency of the application on 7 April 2025. Extensive oral submissions were given by both sides and the primary Judge correctly considered the conflicting authorities in depth.
•	The primary Judge’s finding that the application was incompetent meant there was no valid application before the Court upon which to rule on the merits. The appellant’s remedy lay by way of appeal rather than by an incompetent interlocutory application.
•	An Order that dismisses a proceeding for want of prosecution is a final Order and the Supreme Court in Kalgregos was unequivocal on this point. The primary Judge was correct to classify the dismissal as final.
•	The appellant was given notice about the postponement of the matter from 3 February 2025 to 4 February 2025 by the published Court list and the notice on the Courtroom door. The onus was on the appellant’s counsel to check the Court listings.
•	The submission by the appellant that there was no proceeding on foot was misconceived. The proceeding was commenced by Originating Summons and the grant of leave was a preliminary step within that single proceeding. The proceeding remained subject to Orders of the Court.
•	The appellant failed to recognise that the Order which read “within 28 days from today’s date” was the specific direction required by Order 2 Rule 3(3) of the National Court Rules to displace the default exclusion of the vacation period. The primary Judge correctly found that the deadline, calculated from 10 December 2024, had expired by the return date of 4 February 2025.
•	The wording of the dismissal Orders is perfectly clear and unambiguous and does not invalidate the Order or reveal any error in the primary Judge’s reasoning.
CONSIDERATION

18	In our view the present appeal is incompetent. 

19	First, the principles applicable to dismissal of proceedings for want of prosecution are well settled. As the Supreme Court observed in Tumbiako v Kaiyo [2023] SC2493 at [34], such an Order is an exercise of discretion on the part of the primary Judge, which should only be disturbed on appeal with caution.

20	In the circumstances it was open to the primary Judge to make the dismissal Orders of 4 February 2025 where: 

•	there had been a failure of compliance by the appellant with previous Court Orders, compliance with which by the appellant was necessary to progress the judicial review proceedings; and
•	there was a failure on the part of the appellant to appear at the hearing of 4 February 2025 notwithstanding notice given of the postponement of the hearing date.

21	Second, it clear that, for the purposes of Order 16 of the National Court Rules, once the appellant had failed to file an Amended Originating Summons and Notice of Motion in accordance with Orders 3 and 4 of the Orders of the National Court of 10 December 2024, the leave granted by the National Court to file a Notice of Motion for judicial review had expired. The dismissal Orders of the primary Judge to that extent finalised the judicial review proceedings in those circumstances.

22	Third, and critically, the appellant returned to the National Court to seek to have the dismissal Orders set aside by his Notice of Motion filed heard by the primary Judge on 7 April 2025. That Notice of Motion in the National Court was dismissed on 7 April 2025 as incompetent by her Honour. The appellant has filed a Notice of Motion now before this Court seeking to appeal those National Court Orders. However, the appellant has not identified the basis on which he relies to found that appeal. 

23	At the hearing before this Court, Counsel for the appellant conceded that the appellant had not complied with the Orders of 10 December 2024 granting leave for judicial review. It followed, as we have already observed, that in such circumstances the leave that had been granted by the National Court was not longer extant. Appeals against decisions made within the framework of Order 16 of the National Court Rules are governed by Order 16 Rule 11 which provides:

11. Appeal
An appeal by way of motion to the Supreme Court may be made to set aside or discharge any order of the Court or a Judge granting or refusing an application for leave under Rule 3 or an application for judicial review.
24	The present appeal plainly does not fall within the scope of Order 16 Rule 11. At the hearing, the Bench asked Counsel for the appellant to explain how this appeal satisfied the requirements of Order 16 Rule 11, or any other Supreme Court rule, such that the appeal was competent. 

25	Counsel was unable to assist the Court.

26	It may well be that the appellant could have commenced a competent appeal against the Orders of the primary Judge of 7 April 2025 by a different route. In the absence of submissions by the appellant on this point this Court can take our observations no further.

27	We note that while we have considered all the submissions of the parties, given that the appeal is incompetent it is unnecessary for us to address all of those submissions in this judgment, including those referable to the application of Order 12 Rule 8 of the National Court Rules and s 155(4) of the Constitution of the Independent State of Papua New Guinea 1975.

28	Finally, the argument of the appellant concerning the use of the word “be” in the Order “the notice of motion … be dismissed…” of her Honour was completely without merit (particularly in circumstances where the Orders presently sought by the appellant himself include the verb “be” in the same terms as that of which he complains).

CONCLUSION

29	The appeal is incompetent and without merit, and should be dismissed. Costs should follow the event.

30.     The Court orders that:
(1)	The Notice of Motion filed on 8 May 2025 be dismissed.
(2)	The appellant pay the costs of the first, second and third respondents on a party-party basis, to be taxed if not otherwise agreed	
____________________________________________________________________
Lawyers for appellant:		Boma Lawyers
Lawyers for respondents:		Solicitor-General