Kakaraya v Popuna [2024] PGSC 13; SC2541 (1 March 2024)

SC2541

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO.21 OF 2022

BETWEEN:
DAN SALMON RICH KAKARAYA as Executor of the Estate of Late Katherine Kakaraya Agiru
Appellant

AND:
JACOB POPUNA in his capacity as the Public Curator
First Respondent

AND:
ALEX TONGAYU as the Registrar of Companies
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: David J, Hartshorn J & Toliken J
2023: 31^st October
2024: 1^st March

PRACTICE & PROCEDURE – appeal by person not a party to National Court proceedings – a person whose interests are affected by or who is aggrieved by the order of the National Court and who might have been joined as a party to the National Court proceedings has a right of appeal - Supreme Court Act, s.17.

PRACTICE & PROCEDURE – dismissal of application to set aside for want of jurisdiction – National Court has jurisdiction to hear and determine application to set aside orders obtained ex parte – National Court Rules, Order 12 Rule 8.

Cases Cited:
Kitogara Holdings Pty Ltd v National Capital District Interim Commission & Ors [1988-89] PNGLR 346
Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828
Porgera Joint Venture v Joshua Siapu Yako (2008) SC916
Jeffery Turia v Gabriel Nelson (2008) SC949
Amet v Yama (2010) SC1064
Wavoi Guavi Timber Company Ltd v John Molu (2016) SC1514
Thomas Barry v Joel Luma & Ors (2017) SC1639
National Superannuation Fund Ltd v Yawenaik Holdings Ltd & Ors (2018) SC1709
Inugu v Maru (2019) SC1873
Agiru v Popuna (2022) N9422
Cragnolini v Leia (2023) SC2464

Counsel:
Belinda Poki with K Koroka, for the Appellant
David Levy, for the First Respondent
No appearance for the Second Respondent
Zara Waiin, for the Third Respondent

JUDGMENT

1^st March 2024

1. BY THE COURT: INTRODUCTION: This is the decision of the Court determining the substantive appeal commenced by Notice of Appeal filed on 15 March 2022. The appellant, Dan Salmon Rich Kakaraya (Appellant) appeals from the whole of the judgment of the National Court which was given on 4 February 2022 (the Primary Decision) at Waigani in proceedings commenced by originating summons, OS No.635 of 2017, In the matter of Kathy K. Agiru v Jacob Popuna as the Public Curator of Papua New Guinea and Ors (National Court Proceedings), when the National Court; refused an application moved pursuant to a notice of motion filed on 30 July 2021 seeking to set aside the orders of the National Court made on 7 July 2021 dismissing the National Court Proceedings obtained ex parte (Ex Parte Order) and affirmed the Ex Parte Order: Agiru v Popuna (2022) N9422. The appeal is opposed by the First and Third Respondents. The Second Respondent showed no interest so did not participate in the appeal.
   
2. The appeal lies without leave as the Primary Decision is a final judgment and involves questions of mixed fact and law.
   

BRIEF BACKGROUND

3. On 29 June 2017, the late Kathy K. Agiru (late Kathy) gave notice of her intention to make a claim under s.5 of the Claims By and Against The State Act.
   
4. On 3 August 2017, the late Kathy commenced the National Court Proceedings claiming several declarations and orders including a declaration that she never divorced her husband, the late Honourable Anderson Agiru prior to his demise on or about 28 April 2016 and for all intents and purposes remained the sole surviving widow of the late Honourable Anderson Agiru for purposes of s.84(1)(a) of the Wills, Probate and Administration Act, 1966.
   
5. The late Kathy was the Appellant’s eldest sister.
   
6. The late Kathy passed away on 8 June 2020.
   
7. On 18 September 2020, the Appellant was granted probate of the estate of the late Kathy.
   
8. On 26 November 2020, the Appellant, as the Executor of the Estate of the late Kathy, filed an application to be substituted as the plaintiff (Application for Substitution) in the National Court Proceedings under Order 5 Rules 10(1) and 11(1)(d) of the National Court Rules.
   
9. The Application for Substitution was one of several applications that were pending hearing in the National Court Proceedings and they included:
   
   1. The late Kathy’s application for Contempt of Court filed on 9 August 2018;
   2. The late Kathy’s application for default judgment filed on 6 December 2018;
   3. The First Respondent’s application to dismiss the National Court Proceedings in their entirety for purportedly giving a deficient notice of intention to make a claim under s.5 of the Claims By and Against the State Act filed on 30 May 2019 (Application to Dismiss); and
   4. The Application for Substitution.
      
10. On 7 July 2021, the Application to Dismiss was brought before the National Court and heard ex parte resulting in the dismissal of the National Court Proceedings in their entirety (Ex Parte Order).
    
11. On 30 July, 2021, the Appellant filed a notice of motion seeking to set aside the Ex Parte Order relying on Order 12 Rule 8(3)(a), (4) and (5) of the National Court Rules (Application to Set Aside Ex Parte Order). The Application to Set Aside Ex Parte Order was brought before the National Court for hearing.
    
12. On 4 February, 2022, the National Court, through the Primary Decision, dismissed the Application to Set Aside Ex Parte Order for want of jurisdiction and that it was an abuse of process.
    

GROUNDS OF APPEAL

13. There are four main grounds of appeal and we summarise them as follows:
    
    1. The National Court erred in fact and law when it failed to properly exercise its discretion by not setting aside the Ex Parte Order;
    2. The National Court erred in fact and law when it found that it lacked jurisdiction to hear the Application to Set Aside Ex Parte Order;
    3. The National Court erred in fact and law when it failed to consider the weight of the evidence favouring the setting aside of the Ex Parte Orders; and
    4. The National Court erred in fact and law when it did not accord the Appellant the right to be heard contrary to the principles of natural justice enshrined under s.59 of the Constitution.
       

ISSUE

14. From these grounds of appeal emerges one pertinent issue, the determination of which will decide the outcome of this appeal, and this is whether the National Court erred in fact and law when it found that it lacked jurisdiction to entertain the Application to Set Aside Ex Parte Order.
    

PRELIMINARY MATTER

15. At the hearing of the appeal, the First Respondent raised as a preliminary matter that the appeal was incompetent because the Appellant was a stranger and not a party in the National Court Proceedings having not been substituted as the plaintiff there and therefore as a stranger, he could not found an appeal against the Primary Decision.
    

16. The issue of competency concerns the validity of the proceedings and can be raised at any stage of any proceedings before judgment at the discretion of the Court: Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828, Amet v Yama (2010) SC1064. We will therefore consider and determine the preliminary matter.

17. Section 17 of the Supreme Court Act is relevant in addressing this preliminary matter and it states:

“TIME FOR APPEALING UNDER DIVISION 2

Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.”

18. An appellant who does not have a sufficient interest in the subject matter of the National Court decision that he wishes to appeal against is a proper ground of objection to competency of an appeal: see Jeffery Turia v Gabriel Nelson (2008) SC949, Porgera Joint Venture v Joshua Siapu Yako (2008) SC916.
    
19. The case of Kitogara Holdings Pty Ltd v National Capital District Interim Commission & Ors (1988-89) PNGLR 346 addresses this very point where the Supreme Court by majority decision (Kapi DCJ and Woods J) held that s.17 of the Supreme Court Act operates so as to provide a right of appeal to any “person” whose interests are affected by or who is aggrieved by the order of the court and who might have been joined as a party to the proceedings.
    
20. The Appellant as Executor of the Estate of the late Kathy has a direct interest in the National Court Proceedings. Notwithstanding that the Appellant was not a party in the National Court proceedings, he had a right to appeal the Primary Decision which affected his interests. The Appellant falls within the meaning of the word “person” under s.17 of the Supreme Court Act.
    
21. We reject the First Respondent’s submission. Consequently, we find that the appeal is competent.
    

JURISDICTION OF THE NATIONAL COURT
Submissions

22. Ms. Poki for the Appellant submitted that the National Court erred in fact and law when it found that it lacked jurisdiction relying on the case of Thomas Barry v Joel Luma & Ors (2017) SC1639 when Order 12 Rule 8 of the National Court Rules actually grants the National Court jurisdiction to entertain and determine orders obtained ex parte. Counsel relied on the recent Supreme Court decision of National Superannuation Fund Ltd v Yawenaik Holdings Ltd & Ors (2018) SC1709 which adopted the approach taken in Wavoi Guavi Timber Company Ltd v John Molu (2016) SC1514 where it was held that the National Court has jurisdiction to set aside an order made ex parte.
    
23. Mr. Levy for the First Respondent submitted that the National Court did not commit any error as the proceedings were dismissed ex parte for not disclosing any reasonable cause of action, a similar situation as in Thomas Barry v Joel Luma & Ors (2017) SC1639. In addition, it was submitted that the decisions in National Superannuation Fund Ltd v Yawenaik Holdings Ltd & Ors (2018) SC1709 and Wavoi Guavi Timber Company Ltd v John Molu (2016) SC1514 were not of assistance to the Appellant as they concerned orders obtained ex parte for the dismissal of proceedings for want of prosecution.
    
24. Ms. Waiin for the Third Respondent submitted that the Appellant did not plead any appeal ground going to the question of jurisdiction of the National Court to set aside an order dismissing proceedings ex parte and so the Court should not consider it. In addition, counsel submitted that while the decision in Inugu v Maru (2019) SC1873 states that if an order is made in the absence of a party, it may be set aside by the National Court irrespective of it being an interlocutory or final order (summary dismissal of proceedings for want of prosecution in that case), the facts of the present case are quite different as the proceedings were dismissed for non-compliance of s.5 of the Claims By and Against the State Act and for disclosing no reasonable cause of action.
    

Consideration

25. The relevant discussion of the National Court on the question of jurisdiction is found at paragraphs 9 to 19 of the judgment. The National Court followed the decision of Thomas Barry v Joel Luma & Ors (2017) SC1639 and found that it lacked jurisdiction to set aside an ex parte order particularly in circumstances where; the nature of the Ex Parte Order was final in nature; it had considered the question of whether the Appellant had a reasonable cause of action; and public interest favoured finality in litigation.

26. In the Application to Set Aside Ex Parte Order, the Appellant relied on Order 12 Rule 8(3)(a), (4) and (5) of the National Court Rules as the jurisdictional basis for seeking to set aside the Ex Parte Order.

27. The issue under consideration was recently resolved by the Court constituted by a five-member bench in the case of Cragnolini v Leia (2023) SC2464. The Court held that the National Court; has an unfettered discretion; may set aside its own orders that are made ex parte under Order 12 Rule 8(2) and (3); and there is no limitation as to the types of orders that the National Court can set aside pursuant to Order 12 Rule 8(3)(a) of the National Court Rules. In addition, the Court held that the onus is on an applicant to satisfy the National Court:

1. why the judgment or order was allowed to be entered in his absence;
2. if there is any delay in making the application to set aside, provide a reasonable explanation as to the delay; and
3. by affidavit stating material facts disclosing a defence on the merits or there is an arguable case.
   

28. With respect, we find that the National Court erred in fact and law when it found that it lacked jurisdiction to hear the Application to Set Aside Ex Parte Order. Given this, it is not necessary to consider the other submissions of counsel.

ORDERS

29. The formal orders of the Court are:

1. The appeal is allowed.
2. The orders of the National Court made on 4 February 2022 in proceedings OS No.635 of 2017, In the matter of Kathy K. Agiru v Jacob Popuna as the Public Curator of Papua New Guinea and Ors are set aside;
3. The matter is remitted to the National Court for hearing by another Judge:
   
   • (a) of the Appellant’s motion filed on 26 November 2020 seeking an order for him to be substituted as the plaintiff;
   • (b) of the Appellant’s motion filed on 30 July 2021 seeking to set aside the orders made ex parte on 7 July 2021; and
   • (c) to further deal with the matter.

4, The First and Third Respondents shall bear the Appellant’s costs of and incidental to the appeal which shall, if not agreed, be taxed.
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Judgment and orders accordingly.
______________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellant
Livingstone Lawyers: Lawyers for the First Respondent
Solicitor-General: Lawyer for the Third Respondent