SC2797

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 12 OF 2025 (IECMS)

BETWEEN:
EMJ ELECTRICAL (PNG) LIMITED 
Appellant

AND:
THE NATIONAL PARLIAMENT
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: YAGI J, CAREY J, ANDELMAN J
2 OCTOBER, 4 NOVEMBER 2025

SUPREME COURT — appeal against summary dismissal in the National Court – pleading disclosing no reasonable cause of action – Appellant failed to file written submissions contrary to court directional orders – whether leave required to file application to dismiss proceeding when Notice of Intention to defend filed after prescribed time.

The Appellant commenced litigation against the Respondents claiming liquidated damages in the sum of K985, 380.00, loss of business past and future along with cost and interest. The trial judge dismissed the proceeding for being frivolous and failing to disclose a reasonable cause of action pursuant to Order 12 rule 40 (1)(a), (b), and (c) of the National Court Rules. The Respondents contend that the appeal is without merit and should be dismissed.

Held:

1. The Appeal is dismissed in its entirety.

2. The Appellant failed to demonstrate in the pleadings any cause of action known to law which is fatal to any claim being made and an abuse of the court process.

3. The onus is on a party asserting that their rights are breached to file pleadings which are compliant with the National Court Rules. 

4. There is no requirement under the National Court Rules for leave to be sought prior to filing a notice of motion for dismissal of proceeding where notice of intention to defend the proceeding was filed after the time prescribed for doing so. Following Waim No 85 Limited v The Independent State of Papua New Guinea [2015] PGSC 34; SC1405.

5. The Appellant shall pay the Respondents’ costs of the entire appeal on a party-party basis which shall be taxed if not agreed.

Cases cited
Application for review pursuant to Section 155(2)(b) of the Constitution; Telikom (PNG) Limited v Kila Rava, Nicholas Paliou, Bernard Sui, Owen Boku and 23 other Ex-Employees of Telikom (PNG) Limited and Ida Basugari Palek and Maria Eginaka and Ravu Taviri and the Independent State of Papua New Guinea (2018) SC1694
Arnold Amet v Peter Yama [2010] SC1064
Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea (2005) SC788
Fly River Provincial Government v Pioneer Health Services (2000) SC705
Patterson Lowa v Akipe [1992] PNGLR 399
Takori v Yagari [2007] PGSC 48; SC905
Waim No 85 Limited v The Independent State of Papua New Guinea [2015] PGSC 34; SC1405

Counsel
Mr. S. Wanis with Mr. M. John, for the appellant
Mr. R. Yaka with Mr. N. Gimaia, for the first respondent
Ms. E. Wungin, for the second respondent

JUDGMENT

1.	BY THE COURT: This is the ruling of the Court in relation to the appeal against the National Court decision in WS No. 430 of 2023 (the Proceeding).

2.	EMJ Electrical (PNG) Limited (the Appellant) appeals against the whole decision of the Proceeding where on 17th January 2025, the trial Judge dismissed the Proceeding in its entirety. 

BACKGROUND
3.	The Appellant asserts that it was invited by the former Clerk of Parliament on 12th October 2018 to supply and install LED lights within Parliament Garden area, fountain area and around Parliament.

4.	The Appellant further states that on 22nd October 2018 it commenced work which involved the purchase of LED lights with the project being completed on the 12th November 2018.

5.	On 15th November 2018 the Appellant issued an Invoice for the work performed for K985, 380.00 on The National Parliament (the First Respondent).

6.	The Appellant avers that numerous attempts were made to have the First Respondent pay the invoice.

7.	On 7th March 2023 the Appellant commenced proceeding in the National Court seeking liquidated damages of K985 380.00, loss of business past and future, interest and cost against the First Respondent and the Independent State of Papua New Guinea (the Second Respondent).

8.	The Appellant is of the view that the First and Second Respondents are liable to the claims made in the pleading. 

9.	There were five grounds of appeal.

10.	The Appellant failed to comply with directional orders by the Listing Judge to file written submissions by 19th September 2025.

11.	Leave was not granted to rely on the written submissions.

12.	However, the Appellant was allowed to make oral submissions.

APPEAL GROUNDS

13.	The Five Grounds of Appeal are as follows:

1)	 The Trial Judge erred in law and fact for failing to remind herself that the First Respondent required leave to file and move the application to dismiss the proceeding or take any further steps in the proceeding as it did not file its verified Defence within time or none at all.

2)	 The Trial Judge erred in law and fact by departing from the pleadings which clearly demonstrate that even though there is no written contract the First Respondent unjustly enriched itself at the Appellant’s expense and the Appellant was entitled to recover its losses on restitution or quantum meruit. Further, an additional and unwarranted requirement that quantum meruit should have been pleaded was imposed. 

3)	The Trial Judge erred in law and fact by misapplying Section 21(5) of the Parliamentary Service Act 1997 (PSA), Section 47D of the Public Finance (Management) (Amendment) Act 2016 and Section 2A of the Claims By and Against the State Act 1996 in holding against the Appellant as firstly, these laws were not raised in a proper Defence and secondly these laws did not impose any duty on the Appellant to comply with and finally it was not the Appellant but the Respondents who were in breach of these laws.

4)	The Trial Judge erred in law and fact by acknowledging that the Appellant qualified on quantum meruit but held against it on the basis that it knowingly participated in the illegal contract and did not clearly plead to demonstrate its innocence which resulted in a misapplication of law.

5)	The Trial Judge erred in law and fact by finding that the First Respondent was not proper party to the proceeding when there was clearly no law prohibiting it be named in a court proceeding and further it was the entity/institution to which the Appellant rendered its services.

DETERMINATION

14.	The Appellant did not file any written submissions for the Court to consider. 

15.	Oral arguments were made by the Appellant to advance this Appeal. 

16.	For Gound 1 of the Appeal the Appellant avers that the trial judge erred in law and fact. 

17.	The First Respondent addressed Grounds 1, 3 and 4 together. 
18.	The First Respondent contends that these Grounds of Appeal are incompetent because it offends Section 14(1)(c) of the Supreme Court Act as there was no leave sought by the Supreme Court to raise new issues. 

19.	The First Respondent relied upon the Fly River Provincial Government v Pioneer Health Services (2000) SC705 case which held that:

“A party is not at liberty to raise a point on appeal that should have been raised in the Court below in the interest of fairness and to do justice. By his conduct, a party who fails to raise all the issues that should have been raised in the court below is precluded from raising them on appeal.”

20.	The Second Respondent argued that the trial Judge was correct in allowing the First Respondent to move its application as there is no requirement under the National Court Rules for leave to be sought before an interlocutory application as the First Respondent filed a Notice of Intention to Defend in the National Court proceeding. 

21.	The Second Respondent relied on Waim No 85 Limited v The Independent State of Papua New Guinea [2015] PGSC 34; SC1405which held that:

“(2) Though the respondents gave notice of intention to defend the proceedings after the time prescribed for doing so, they were not required to obtain leave of the Court before filing a notice of motion for dismissal of the proceedings. Order 7, Rule 6(2) of the National Court Rules did not require that they obtain leave. The primary Judge properly allowed the motion to be moved and determined in favour of the respondents.”

22.	We accept the argument by the Second Respondent in relation to Ground 1 because the Appellant’s argument in support of Ground 1 has no basis in law and is therefore not sustainable. The Appellant’s Ground Number 1 is misconceived and should be refused.

23.	In examining Grounds 3 and 4 as argued by both the Appellant and the First Respondent, we reject the Appellant’s argument because it is incompetent. It was not raised in the National Court. To now raise it in the Supreme Court without leave makes it non-compliant with Section 14(1) (c) of the Supreme Court Act.

24.	Moreover, the case law in paragraph 19 provides authority in support of the First Respondent’s submission, and hence, this ground must fail. 

25.	For Ground 2 of the Appeal, the Appellant did not indicate in a coherent and clear manner to this court how the trial Judge erred in fact and law. 

26.	We find that there is no pleading of quantum meruit in the statement of claim nor as argued by the Appellant which may reasonably give rise and have nexus to what is being sought in the prayer for relief. 

27.	The trial Judge examined the Statement of Claim and correctly made findings of fact that were consistent with there being no pleading of a claim based on quantum meruit. 

28.	The First Respondent argued that the Appellant’s Ground number 2 is misconceived as there is no indication at what specific point the trial Judge departed from the pleading. 

29.	The Second Respondent adopted the First Respondent’s position on this Ground of Appeal.

30.	We are not persuaded by the Appellant that there was an identifiable error by the trial Judge on Ground number 2 that warrants this court making a determination that is contrary to the findings.

31.	In Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v University of Papua New Guinea (2005) SC788, the Court stated:

“The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of the discretion is clearly wrong. A discretionary judgement may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred…”

32.	With respect to Ground 5 of the Appeal, the Appellant contends that the trial Judge wrongly concluded that the First Respondent was not a proper party to the proceeding when there was clearly no law prohibiting it being named in a court proceeding and further it was the entity/institution to which the Appellant rendered its services.
33.	The Appellant proffers that an oral agreement is properly and sufficient pleaded in paragraph four of the Statement of Claim that is indicative that there was such an agreement. 

34.	The Appellant argued that it took a risk delivering the goods and services without being properly engaged, however, this is not something it did without the direction of a representative of the First and Second Defendant. 

35.	We find that there was no pleading of an oral agreement consistent with law or fact in the Statement of Claim. The essential elements of an oral agreement are clearly deficient in the pleading. For instance, there is no pleading of specific terms of offer; no clear acceptance of the offer; no agreement on the consideration; the legal capacity of the Clerk of National Parliament to contract on behalf of the National Parliament and the applicability of relevant laws such as the Parliamentary Services Act and the Public Finance (Management) (Amendment) Act. 

36.	The principles espoused in Takori v Yagari [2007] PGSC 48; SC905 are such that there is nothing with the Appellant’s claim that distinguishes it for this court to depart from it to accept the argument that there was a reasonable cause of action disclosed by the Appellant. 

37.	Moreover, as we alluded earlier there was no pleading of a contract or breach of contract in the Statement of Claim. 

38.	While the Appellant suggested that there was an oral agreement, simply stating that such agreement exists without a properly structured pleading seriously lacked any foundation as a matter of law and fact.

39.	Order 8 rule 8 of the National Court Rules requires a party to plead “material facts”. The material facts must disclose a cause of action. A cause of action can be described as “a legal right or form of action known to law” Patterson Lowa v Akipe [1992] PNGLR 399 at 429 and Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007. Every fact necessary to prove, to succeed in the cause of action is a material fact. Otherwise, the Court is left guessing the case to be determined and the other parties are unclear about the case they are to meet. 

40.	The Courts have an obligation to ensure that there is no abuse of process through its mechanisms. See Arnold Amet v Peter Yama (2010) SC1064.

41.	In addition, the court has inherent jurisdiction to dismiss proceedings summarily where there is an abuse of process. See Application for review pursuant to Section 155(2)(b) of the Constitution; Telikom (PNG) Limited v Kila Rava, Nicholas Paliou, Bernard Sui, Owen Boku and 23 other Ex-Employees of Telikom (PNG) Limited and Ida Basugari Palek and Maria Eginaka and Ravu Taviri and the Independent State of Papua New Guinea (2018) SC1694.

42.	The First Respondent argued that the National Parliament was not the correct entity to be listed as a party to this matter and as such the trial Judge did not err in fact and law in concluding the Appellant incorrectly named the Parliament as a party.

43.	The Second Respondent adopted the First Respondent’s argument and asserts that the Clerk of Parliament is responsible for the Parliamentary Services which is the appropriate party to such a proceeding. 

44.	The National Parliament is described in the Constitution:

“99. Structure of Government.
(1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.
(2) The National Government consists of three principal arms, namely:—
(a) the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making;....”

45.	Section 132 of the Constitution is in the following terms:

“(1) An Act of the Parliament shall make provision for and in respect of a Parliamentary Service, separate from the other State Services.(see Parliamentary Service Act 1995)
(2)   Within the Service, there shall be an office of Clerk of the National Parliament who shall, subject to Subsection (3), be the head of the Service.
(3)   The Service shall be subject to the direction and control of the Speaker and shall perform its functions impartially.”

46.	Section 188(1)(a) to (d) of the Constitution established State Services, National Parliament is not one of them. 

47.	Sub section 2(1) of the Parliamentary Services Act 1995 established the Service and sub section 2(3) states that the Service shall consist of the Clerk and the officers and employees of the Service. Service is defined in section 1 as “Parliamentary Service continued in establishment under Section 2 of this Act”.
 
48.	We accept the First and Second Respondents’ submission that a claim in this case ought to have been made against the Parliamentary Service and not the National Parliament.

49.	We reject the Appellant’s argument that the trial Judge erred in determining that the National Parliament was incorrectly named as a party to the proceeding.
 
50.	We affirm that the National Parliament was not the appropriate party to the proceeding. 

51.	The Appellant has erroneously taken legal action against the National Parliament. 

52.	In our respectful opinion the trial Judge did not commit any identifiable errors.

CONCLUSION

53.	For all these reasons, we conclude that all grounds of appeal must fail. 

54.	The Court thanks all counsels involved for their assistance in regard to this appeal hearing. 

ORDERS

1.	The Appeal is dismissed in its entirety.
2.	The Appellant shall pay the Respondents’ costs of the entire appeal on a party-party basis, which shall be taxed, if not agreed.
3.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
Ordered accordingly.

 Lawyers for the appellant: Solomon Wanis Lawyers
Lawyers for the first respondent: Hardy & Stocks Lawyers
Lawyers for the second respondent: Solicitor General