Bonne v Kombo [2025] PGSC 62; SC2765 (25 February 2025)

SC2765

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 184 OF 2025

BETWEEN:
JONATHAN BONNE
Appellant

AND:
PAUL KOMBO
Respondent

WAIGANI: LOGAN J, DINGAKE J, COATES J
25 FEBRUARY 2025

ESTOPPEL – where a party raises an issue on appeal which could have been raised at an earlier time – whether estoppel in National Housing Corporation v Asakusa [2012] PGSC 6; SC1165 was an exhaustive expression of estoppel – whether there are other forms of estoppel – whether the present case is one subject to Anshun estoppel – appeal dismissed.

Facts

The dispute is centred around a property: Allotment 60 of section 529, Hohola (the property).

Both Mr Bonne (the appellant) and Mr Kombo (the respondent) claimed proprietary rights over the property.

On 25 October 2023, the National Court of Papua New Guinea in OS 232 of 2023, found that the appellant was an illegal tenant occupying the property, and that the respondent had the proprietary rights over the property.
The appellant appealed from that decision, in WS 510 of 2023. However, due to not prosecuting that appeal, it was dismissed on 13 November 2023 by the National Court of Papua New Guinea.

The appellant now appeals against the dismissal on 13 November 2023 in WS 510 of 2023, on the basis that an allegation of fraud was one which, reasonably, could have been made in earlier proceedings. The court concluded that National Housing Corporation v Asakusa [2012] PGSC 6 was not an exhaustive statement of the content of what may constitute an estoppel. The issue of fraud being one which, reasonably, could have been raised in earlier proceedings, to raise it in the present proceeding was an abuse of process. Port of Melbourne Authority v Anshu [1981] HCA 45; (1986) 147 CLR 589 and Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 considered and adopted as setting out the common law of England and applied.

Held
1. Appeal dismissed.
2. The appellant pay the second respondent’s costs of and incidental to the appeal to be taxed on party and party basis, if not agreed

Cases cited
National Housing Corporation v Asakusa [2012] PGSC 6; SC1165
Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45; (1981) 147 CLR 589
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507

Counsel
Mr A Benny, for the appellant
Mr D Dupre, for the respondent

1. LOGAN J: On 25 October 2023 in National Court proceeding OS 232 of 2023 between Mr Paul Kombo as plaintiff and Mr Jonathan Bonne, as defendant, the National Court constituted by the Deputy Chief Justice, Kandakasi DCJ, made the following orders:

(1) A declaration that pursuant to section 42 subsection (1) and section 43 paragraph (b) of the Wills, Probate and Administration Act 1966 and section 155 subsection (4) of the Constitution, the plaintiff Mr Paul Kombo is the administrator/representative for the estates of the late Junior Margaret Kombo a deceased of Boroko, National Capital District.

(2) A declaration that pursuant to section 119 subsection (8) paragraph (b) and section 33 of the Lands Registration Act 1981 and pursuant to section 155 (4) of the Constitution, the plaintiff Mr Paul Kombo is the registered proprietor of the State lease described as section 529 allotment 60 Hohola.

(3) A declaration pursuant to section 155(4) of the Constitution that the defendant Mr Jonathan Bonne is an illegal tenant occupying the property described as section 529 allotment 60, Hohola, National Capital District. The property situated at Gerehu, Stage 3B.

(4) Pursuant to order 14 rule 10 (1) and (2) and order 12 rule 1 of the National Court Rules 1983, the defendant shall within 21 days from this order give vacant possession of the property described as section 529 allotment 60, Hohola, National Capital District, property situated at Gerehu State 3B.

(5) Pursuant to order 13 rule 3 (2) of the National Court Rules 1983 and pursuant to section 155 (4) of the Constitution leave is granted to the registrar to issue writ of possession after full lapse of 21 days in respect of property described as section 529 allotment 60 Hohola, National Capital District, property described as Gerehu Stage 3B.

(6) The defendant shall pay the plaintiff’s costs of and incidental to this proceeding on a solicitor-client basis which costs shall be taxed if not agreed.

(7) The time of the entry of these orders as abridged to take place forthwith upon the court signing the orders.

2. That order was entered on 2 November 2023. Thereafter, Mr Bonne commenced but did not prosecute an appeal to this court against those orders. Those orders of the National Court were the foundation for the dismissal for reasons given orally by the National Court as constituted by Kariko J on 13 November 2023 of a writ proceeding in that court, WS 510 of 2023, as between Mr Bonne as plaintiff and three defendants who have become the present respondents, namely The National Housing Corporation, Mr Paul Kombo in its capacity and as the executor of the estate of the late Junior Margareth Kombo and Mr Ala Ane, in his capacity as the Registrar of Titles, Department of Lands and Physical Planning.
3. The basis upon which the learned primary judge dismissed WS 510 of 2023 was that, in light of the order earlier made by the court on 25 October 2023 in OS 232 of 2023, the writ proceeding was an abuse of process.
4. Mr Bonne has appealed against that order of dismissal. The only active party respondent to the appeal is Mr Paul Kombo as executor of the estate of the late Junior Kombo. Neither the National Housing Corporation nor the registrar took an active part in the hearing of the appeal. The essence of the submission made on behalf of Mr Bonne is that the learned primary judge was in error in conceiving that the writ proceeding was an abuse of process.
5. That writ proceeding, as the annexed statement of claim attests, alleged that Mr Kombo had come onto the title in respect of allotment 60 as a result of fraud. In other words, the case alleged fraud in terms of the exception to indefeasibility as found in s 33 of the Lands Registration Act 1981.
6. It is unnecessary for the purposes of disposing of the present appeal to consider at all whether or not that fraud exception is wholly referable to actual as opposed also to constructive fraud.
7. The principal authority upon which the appellant relied is an earlier judgment of this Court in National Housing Corporation v Asakusa [2012] PGSC6 SC1165 (Asakusa). In that case the court had occasion to consider some aspects of what is known as issue estoppel. The Court identified at [12] in Asakusa, what it considered to be three prerequisites in respect of the applicability of issue estoppel.
8. As so identified, they were:
   12. The first thing we must do in determining whether the primary Judge erred in deciding that issue estoppel was applicable is to determine what the prerequisites for its application are. Having considered the competing arguments of the parties we consider that there are three prerequisites:

(a) the issue raised in the current proceedings is the same issue as that raised in the prior proceedings;

(b) the issue was finally determined in the prior proceedings; and

(c) the parties in the current proceedings are the same as those in the prior proceedings or, if they are not the same, the party against whom the estoppel is sought to be applied was a privy of a party to the prior proceedings and reasonably expected to be aware of the prior proceedings and entitled to be joined but failed without explanation to do so.

9. In the circumstances of that case the court held that the first and second prerequisite were not met such that issue estoppel did not arise.
10. The issue concerned was an allegation of fraud which had not been raised in the earlier proceeding but was in a later proceeding. This is apparent from [18] of the court’s reasons for judgment in which the following are stated:

Whichever approach is taken it is clear that “fraud” was the critical issue raised in OS 302 of 2009. It was not however at issue in the prior proceedings, OS 742 of 2008, where the issues were simply whether Mr Kombo was the registered proprietor, and whether the occupants of the land, Robert Sapoma, NHC (tenants) had any right to remain on it. Those issues were decided on Mr Kombo’s favour and no judicial determination was made whether he had become the registered proprietor in a case of fraud. The issue was not raised.

11. From this, it was said, on behalf of Mr Bonne to follow that he was perfectly entitled to raise in the more recent writ proceeding and had raised an allegation of fraud in relation to Mr Kombo becoming the registered proprietor.
12. The answer to this on behalf of Mr Kombo was that Asakusa was not a complete survey of the law in relation to estoppel.
13. Estoppel is a technical term which may be put in a more straightforward way as stopping a party from raising an issue in a later proceeding. There is substance in the submission made by Mr Kombo. Issue estoppel is but one form of estoppel.
14. The position in respect of the common law in Australia in relation to estoppel was definitively stated in a joint judgment of French CJ and Bell, Gageler and Keane JJ in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 (Tomlinson v Ramsey), at [22], where their Honours stated:

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel.” Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power and where res judicata in a strict sense therefore applies to result in the merger of the right or obligation in the judgment.

The second form of estoppel is almost always now referred to as “issue estoppel.” Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or law disposes once for all of the issue so that it cannot afterwards be raised between the same parties or their privies”.

The third form of estoppel is now most often referred to as “Anshun estoppel.” Although it is still sometimes referred to as the “extended principle” in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 [67 ER 313]. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim or the raising of an issue of fact or law if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in a strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

15. The joint judgment in that case continued, at [23]:

The present significance of the recognition of those three forms of estoppel is that each has the potential to preclude assertion of a right or obligation of the raising of an issue of fact or law, between parties to a proceeding or their privies. Absent principled basis for distinction, and none has been suggested one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding.

16. Their Honours also add, at [25]:

Abuse of process which may be invoked in areas in which estoppels also apply is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of the court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.

It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned if the circumstances where a party to a subsequent proceeding is not bound by an estoppel.

17. The Underlying Law Act 2000 amongst other things makes the common law of England as at Independence part of the underlying law. It does not necessarily follow that the common law of Australia is necessarily the same these days. On this subject however, in my view there is no relevant distinction to be drawn. Thus, the statement in Tomlinson v Ramsey as to the three kinds of estoppel should be accepted as a comprehensive statement of the kinds of estoppel under the common law in Papua New Guinea.
18. What follows from that is that the discussion in Asakusa concerned only one type of estoppel. What was not raised for consideration by the Supreme Court in that case was the third form of estoppel known as “Anshun estoppel” by reference to the underlying authority on that subject. Another judgment of the High Court of Australia, Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45; (1981) 147 CLR 589.
19. One looks to this case and asks, was it reasonable for Mr Bonne to have brought forward in OS 232 of 2023, an allegation of fraud as against materially Mr Kombo? In answer one need look no further than an earlier writ proceeding, WS 1541 of 2016, in which having regard to the annexed statement of claim, a detailed allegation of fraud in relation to Ms Junior Kombo’s coming on to the title in 2016 of allotment 60 as registered proprietor is made. What necessarily follows is that the dismissal of WS 510 of 2023 by the learned primary judge as an abuse of process on the basis of the final judgment as given in OS 232 of 2023 was an entirely orthodox application of recognising that the third form of estoppel, “Anshun Estoppel” was applicable as between Mr Bonne and Mr Kombo as executor.
20. No error has therefore been demonstrated in the order of dismissal. For completeness, it should be added that, also raised on the appeal on behalf of Mr Kombo was an issue by way of additionally seeking to uphold the dismissal of the writ proceeding that in any event by the time of its issuing, more than six years had passed since the accrual of any cause of action in fraud. The essence of that submission being that at the very latest, the cause of action in fraud had occurred to Mr Bonne in 2016, upon the late Junior Kombo becoming registered proprietor of allotment 60.
21. Yet further and again by way of alleging additional reasons as to why the order of dismissal should be upheld, Mr Kombo alleged non-compliance with the notice requirement found in s 5 of the Claims By and Against the State Act 1996 given that the writ proceeding had been instituted as against at least the Registrar of Titles as officer of the State without the prior giving of such a notice. Because the learned primary judge so correctly identified and applied the third form of estoppel as applicable and a foundation for dismissal of the writ proceeding as an abuse of process, it is in my view unnecessary to refer either to the question of whether a limitation point would have provided a complete defence or for that matter, or whether it was necessary for notice under s 5 to be given.
22. For these reasons then, I would dismiss the appeal.

23. DINGAKE J: Thank you President. I agree with the conclusion reached. Briefly on my part, I record that this is an appeal against the whole of the judgment of his Honour Kariko J given on 13 November 2023 in proceeding WS 510 of 2023 (IECMS). In those proceedings the plaintiff alleged fraud to impugn the title held by Mr Paul Kombo. He did contend that he had acquired such title through fraud. The primary judge held that this issue of fraud should have been raised earlier before Kandakasi DCJ. That was in OS 232 of 2023.

24. The primary judge also held that the matter of the proprietor of the title was already determined and that he cannot review the decision, and holding the decision by the DCJ was final and that only the Supreme Court can reverse the decision. Ultimately the primary judge dismissed the proceedings as an abuse of court process. I agree that the appellant should have raised the issue of fraud before Kandakasi DCJ but failed to do so and in my mind to persist as he did before the primary judge on the issue of fraud, amounted plainly to an abuse of court process.

25. As my brother president has made it patently clear, there is evidence on record that suggest that the appellant knew at all material times certainly in 2016. The appellant knew of fraud as is clear from the appeal book at page 98, paragraph 24 where the elements of fraud were particularised. For that reason, this appeal is without merit. The learned primary judge was correct to hold that it was an abuse of court process.

26. Further, speaking for myself, the appellant in this case also failed to demonstrate an identifiable error committed by the primary judge that would entitle him to succeed in this appeal. In the result for these brief reasons, I will dismiss the appeal as wholly unmerited and I will order costs against the appellant. Such costs to be taxed, if not agreed. Thank you, president.
27. COATES J: I would dismiss the appeal for the reasons given from my brother judges, President, Justice Logan and Justice Dingake, I have nothing further to add but to save that the appellant should pay the second respondent’s costs of the appeal on a party and party basis to be agreed or taxed.

Orders

1. Appeal dismissed.
2. The appellant pay the second respondent’s costs of and incidental to the appeal to be taxed on party and party basis, if not agreed.
   

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Lawyers for appellant: Niuage Lawyers
Lawyers for respondent: Universal Law