N10710
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 124 OF 2022

BETWEEN
PORGERA LANDOWNERS’ ASSOCIATION INCORPORATED
Plaintiff

AND:
INVESTMENT PROMOTION AUTHORITY
First Defendant

AND:
MINERAL RESOURCE AUTHORITY
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
RUBEN LOLI NALEPE
Fourth Defendant

AND:
NELSON AKIKO & JOHN ONDALANE
Fifth Defendants

AND:
JONATHAN PARAIA & KURUBU IPARA
Sixth Defendants

AND:
EKALE KANGALIA, IPAYIA LARA & JOB KUTATO, for themselves and on behalf of 16 others in their capacities as SML 1 Clan Agents
Seventh Defendants

Waigani: Carey J
2024: 3rd & 4th April

PRACTICE & PROCEDURE – specific and expressed rules provided for dealing with judgments or orders made in the absence of parties - relevant principles applying to setting aside judgments

The Fifth Defendants filed a Notice of Motion to set aside a Court Order which was issued with specific wording that “the Proceedings herein are concluded, and the file is to be archived”. The Fifth Defendants further sought to have the matter restored to the List. 

Held:

1.	The Fifth Defendants did not prove that an injustice was done by any third party to justify the Court intervening to grant the relief sought in setting aside the orders of the National Court of 27th March 2024. 

2.	This proceeding is dismissed and claims for relief by the Fifth Defendants are refused.

3.	The Orders of the National Court of 27th March 2024 continue to have effect unless a determination is made otherwise by the Supreme Court. 

4.	The proceedings herein are concluded.

5.	 The Fourth Defendant, Fifth Defendants and Seventh Defendants shall pay the Plaintiff’s, First, Second and Third Defendants’ costs of and incidental to this proceeding, to be taxed if not agreed.

6.	The time for the entry of these Orders is abridged to take place forthwith. 

Cases Cited:
Christopher Smith v Ruma Constructions Ltd [2002] SC695
Cragnolini v Leia [2023] PGSC 112; SC2464 
Ingu v Maru [2019] PGSC 83; SC1873 
Kakas v National Housing Corporation [2020] SC2000
Miniffee v The Independent State of Papua New Guinea [1994] PNGLR 78
MVIT v Joseph Bure [1999] PNGLR 273 
Thomas Barry v Joel Luma (2017) SC1639
Tovon v Malpo [2016] PGNC 57; N6240 

Legislation:
Order 8 Rule 50 of the National Court Rules
Order 12 Rule 8 (3) & (4) of the National Court Rules

Counsel: 
P. Mawa, for the Plaintiff
R. Yomilewau, for the First and Third Defendant
L. Baida, for the Second Defendant
P. Harry, for the Fourth Defendant
R. Saulep, for the Fifth Defendants
N. Kiuk, for the Seventh Defendants
J. Yawale, for 2 Interested Parties  

JUDGMENT

4th April 2024

1.	CAREY J:     This is an application to set aside orders of the National Court issued in the proceedings OS 124 of 2022 by way of a Notice of Motion by the Fifth Defendants.  

BACKGROUND

2.	The National Court issued a Court Order on 27th March 2024.

3.	The Fifth Defendants initially asserted that the National Court Order of 27th March 2024 was issued ex-parte.

4.	However, this Court determined that the matter was heard inter partes although the Fourth Defendant, Fifth Defendants and Seventh Defendants were not present in Court on 27 March 2024 at 1:30 pm to make submissions.

5.	The Fifth Defendants filed an Amended Notice of Motion on 2nd April 2024. 

6.	The Plaintiff took issue with this Amended Notice of Motion and submitted that the Fifth Defendants were unable to file the Amended Notice of Motion on 2 April 2024 as the National Court Rules of Order 8 Rule 50 would be the appropriate order for which the document could be filed and the existing document was not compliant with the National Court Rules. See Tovon v Malpo [2016] PNGNC 57; N6240 (4 April 2016).

7.	Subsequently, the Fifth Defendants withdrew the Amended Notice of Motion filed on 2nd  April 2024. 

8.	The Fifth Defendants applied to the National Court by Notice of Motion filed on 28th March 2024 for the following:

‘1. Pursuant to Order 1 Rule 7 and Order 4 Rule 49 (20) of the National Court Rules, the requirement for the service of this Notice of Motion and Supporting affidavit(s) be dispensed with and time be abridged for the hearing of this Notice of Motion forthwith.

2. Pursuant to Order 12 Rule 8 (3) and (4), of the National Court Rules, the Orders of the Court made on 27th March 2024 granting substantive relief to the Plaintiff and its consequential orders be set aside and this matter restored to the List; and

3. That this matter, pursuant to Term 4 and 5 of the Orders of the Court made 19th February 2024, be send for Mediation with appropriate directions accordingly.

4. No Order as to costs.

5. Such further or other Order as this Court deems fit.’

9.	 The Court approved the Fifth Defendants proceeding Pursuant to Order 1 Rule 7 and Order 4 Rule 49(20) of the National Court Rules and so ordered. 

10.	The Seventh Defendants adopted the Fifth Defendant’s position and further argued that an Interim matter cannot be allowed to make a final or substantive order.

11.	The Fourth Defendant concurred with the Fifth Defendant’s and Seventh Defendant’s submission and adopted in their submission to the Court. 

12.	The Plaintiff gave an undertaking not to access funds provided for through the Court Order of 27th March 2024 until the determination of this matter.
 
Issues

13.	 Whether the absent parties are at liberty to apply to the National Court to set aside the final order made in their absence?

14.	Whether the National Court has jurisdiction to hear this matter?

15.	Did the National Court become functus officio on 27th March 2024?

Determination
 
16.	 Order 12 Rule 8 (3) & (4) of the National Court Rules provide the mechanism by which the National Court may set aside a National Court Order. It is as follows:

‘(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 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 judgment) 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.’

17.	In Ingu v Maru [2019] PGSC 83; SC1873 (13th November 2019), the Supreme Court states:

‘Order 12 Rule 8(3) is not concerned with the question whether such an order, made in the absence of a party, was final or interlocutory.’ 

Therefore, the fact that the Court Order is final does not preclude the Fifth Defendants from invoking the jurisdiction of the court to hear the matter.

18.	It follows that the absent parties were at liberty to apply to the National Court to set aside the final Order made in their absence.

19.	 In MVIT v Joseph Bure (1999) PNGLR 273; Christopher Smith v Ruma Constructions Ltd [2002] SC695, Order 12 Rule 8 is within the jurisdiction of the Court to exercise its discretion and the applications to set aside orders made in the absence of a party in a proceeding commenced by Originating Summons. 

20.	As such, the Court accepts the proposition that the National Court has jurisdiction to hear this matter.

21.	 In Cragnolini v Leia [2023] PGSC 112; SC2464 (28th September 2023), the Supreme Court at para. 32 indicated:

‘In order to be successful, it is incumbent upon the applicant to satisfy the Court:

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

22.	 In this particular proceeding the Court does not accept the Fifth Defendant’s argument that ‘Unbeknownst to the Defendants, the Plaintiff relisted the matter before his Honor on Wednesday, 27th March 2024 and moved his motion for judgment on the substantive relief.’

23.	Having examined the Integrated Electronic Case Management System (IECMS), under Sessions Scheduling, the matter was scheduled and listed for a Mention on 27th March 2024. 

24.	Further, the fact that there is a Practice Direction (IECMS) No. 1 of 2022 issued by the Honourable Chief Justice Sir Gibuma Gibbs Salika on 31st January 2022 which made official the registry practice regarding filing of documents through IECMS is evidence that all counsel should be using the system for case management purposes including updates for when matters are to be heard before the Court. 

25.	The principle of interests of justice as espoused in Kakas v National Housing Corporation (2020) SC2000, is not violated if any party chooses to ignore the Practice Direction of the Court which is established to improve access to justice for litigants.

26.	Any action to deviate without reasonable cause from Practice Directions given by the Courts for the benefit of litigants or their counsel to improve access to justice is done at their own peril and with prejudice to their case.

27.	‘Order 12 Rule 8 (4) does not apply to setting aside any orders, including orders for dismissal of proceedings, which are made in the absence of a party (which is the subject of powers under sub-rule (3)’: Ingu v Maru [2019] PGSC 83; SC1873 (13th November 2019) at [71].

28.	One can by deductive reasoning conclude that this leaves Order 12 Rule 8 (3) as the avenue by which the Fifth Defendants are to follow. 

29.	The Court may set aside, which indicates the conceptual perspective of exercise of judicial discretion. 

30.	Further, it is important for this Court to ensure that it does not misapply the principles for setting aside orders made in the absence of a party. 

31.	The Court is not persuaded by the submission of the Fifth Defendants that their failure to be at the Court hearing on 27th March 2024 was beyond their control and in fact the fault of the Registry of the National Court. 

32.	As indicated in preceding paragraphs the IECMS has been clearly established for case management and to ensure that all parties to matters are aware of when their matters are scheduled in an almost automated manner. 

33.	The three steps which are outlined in paragraph 21 must be complied with in order for this Court to set aside the orders of 27th March 2024. 

34.	The Fourth Defendant, Fifth Defendants, and Seventh Defendants were absent from the hearing and are unable to overcome the first step in relation to the order being allowed to be entered in their absence because they did not comply with a Practice Direction by the Court in using the IECMS for case management including being notified as to the hearing date and time which were indicated for the parties to see.

35.	Moreover, because the Fourth Defendant, Fifth Defendants and Seventh Defendants were absent from the Court Hearing as outlined in paragraph 34, it would be an injustice to the other parties for the Court to have delayed in hearing the matter and making a determination and therefore this is a reasonable explanation for allowing the order to be entered in their absence. 

36.	It should be noted that this Court cannot restore by an interlocutory process a substantive proceeding in which the merits of the case were considered and it was brought to an end: Thomas Barry v Joel Luma (2017) SC1639.

37.	The submissions by the Seventh Defendants in its entirety are outside of the purview of this Court given the limited scope for which the focus of this proceeding relates to whether this Court should exercise its discretion in setting aside the Court Order of 27th March 2024. 

Conclusion

38.	Finality of litigation closes the matter before court, with processes and procedures available to parties, to seek remedies when parties are not satisfied with the decision of the court of first instance. 

39.	In Miniffee v The Independent State of Papua New Guinea [1994] PNGLR 78, it is stated that:

‘..the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that in earlier judgment it has proceeded on a misapprehension as to the facts or law. As this Court is a final Court of Appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify.’

40.	There must be finality in litigation once a final decision has been arrived at: Thomas Barry v Joel Luma (2017) SC1639.

41.	This Court posits that the National Court became functus officio on 27th March 2024 following the orders issued by the court insofar as the exception being the application to the Court through Order 12 Rule 8 (3) & (4) of the National Court Rules.

42.	 It is against this background that this court exercised its discretion to hear this matter to ensure that in the interest of justice the matter was heard to make a determination as to whether the Court Order of 27th March 2024 should be set aside. 

43.	It must be emphasized that this narrow approach as allowed by the National Court Rules and endorsed through authority by the Supreme Court cases mentioned in this judgment has been established to ensure that parties to litigation do not misuse the process and mount appeals meant for the Supreme Court under the guise of setting aside judgments of the National Court by another National court.

44.	Finally, I thank all counsel for the parties to this matter who made submissions to assist the Court at arriving at this decision. 

45.	Your contributions were invaluable in providing clarity as to the right approach, at least in this Court’s view to the decision inclusive of the reasons for the outcome. 

ORDERS

46.	It is ordered that:

1.	The Fifth Defendants did not prove that an injustice was done by any third party to justify the Court intervening to grant the relief sought in setting aside the orders of the National Court of 27th March 2024. 

2.	This proceeding is dismissed and claims for relief by the Fifth Defendants are refused.

3.	The Orders of the National Court of 27th March 2024 continue to have effect unless a determination is made otherwise by the Supreme Court. 

4.	The proceedings herein are concluded.

5.	The Fourth Defendant, Fifth Defendants and Seventh Defendants shall pay the Plaintiff’s, First, Second and Third Defendants’ costs of and incidental to this proceeding, to be taxed if not agreed.

6.	The time for the entry of these Orders is abridged to take place forthwith. 

Ordered accordingly.

Mawa Lawyers: Lawyers for the Plaintiff			
Solicitor General Lawyers: Lawyers for the First and Third Defendant
Nelson Lawyers: Lawyers for the Second Defendant
 Harry Lawyers: Lawyers for the Fourth Defendant
Saulep Lawyers: Lawyers for the Fifth Defendant
Kiuk & Associates Lawyers: Lawyers for the Seventh Defendant
 J Yawale: Lawyers for the 2 interested parties