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Kenamu v China Harbour Engineering (PNG) Ltd [2025] PGNC 286; N11432 (19 August 2025)

N11432

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 73 OF 2024 (IECMS)

ANDY KENAMU
First Plaintiff

AND

HARI YUPI INVESTMENTS LIMITED
Second Plaintiff

V

CHINA HARBOUR ENGINEERING (PNG) LIMITED
First Defendant

AND

NATIONAL CAPITAL DISTRICT COMMISSION
Second Defendant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: CAREY J
6 , 19 AUGUST 2025

SELF-EXECUTING ORDERS – Whether Court should dismiss proceedings for failure to comply with Chamber Orders

There was a motion before the Court which was adjourned for parties to prepare submissions in relation to this matter. The Court considered arguments by the parties in relation to whether Order 10 Rule 9A 15(2) of the National Court Rules should apply for non-compliance with the Chamber Orders of 13^th November 2024.

Held:

1. All parties were non-compliant with the Chamber Orders of 13^th November 2024 with no reasonable explanation.
   
2. As the interests of justice apply to all parties (applying PNG Power Ltd v Gura [2014] PGSC 48; SC1402), the matter will not be dismissed for failure to comply with the Chamber Orders of 13^th November 2024.
   
3. The decision to dismiss the matter for failure to comply with a Court Order is discretionary in nature and not mandatory.
   
4. The matter will proceed and the motions hearing which was adjourned on 13^th June 2025 will be heard on 23^rd April 2026 at 8am.
   
5. Each party to bear its own costs.
   
6. Time be abridged to the time of settlement by the Registrar, which shall take place forthwith.
   

Cases cited
Arnold Amet v Peter Yama [2010] SC1064
Michael Keka v Pius Yafaet [2019] SC1673
PNG Power Ltd v Gura [2014] PGSC 48; SC1402
Roger Ketan v Comrade Trustee Services Ltd [2024] SC2545

Counsel
B. Sinen, for the plaintiffs
S. Thoke, for the first defendant
J. Ules, for the second defendant

JUDGMENT

1. CAREY J: This is a ruling on whether non-compliance of the Chamber Orders dated 13^th November 2024 (Chamber Orders) should result in dismissal of the proceedings.
   
2. Parties were invited to make submissions on whether the matter should be dismissed pursuant to the Court Orders of 13^th June 2025.
3. On 30^th June 2025 there was a Motion before the Court which was moved by the First Defendant.
   
4. During oral submissions by the First Defendant, the Court was informed that there was a failure by the Plaintiff to comply with the Chamber Orders.
   
5. It was at this time that the motions hearing was adjourned for parties to make submissions to the Court on the next steps in this proceeding given this revelation that there was non-compliance of the Chamber Orders.
   

DETERMINATION

6. The Plaintiff avers that there has been compliance with the Chamber Orders.
   
7. The Plaintiff relied on the affidavit of Bernard Sinen who is the lawyer for the Plaintiff filed on 5^th August 2025 known as document # 51.
   
8. The Plaintiff provides a chronology, however, it indicates that there was non- compliance with the Chamber Orders.
   
9. It must be noted that substantial compliance is not the same as full compliance in relation to Court Orders.
   
10. The Second Defendant relied on the affidavit in support of Golo Enara filed on 24^th December 2024 known as document # 30 for its submission.
    
11. The Second Defendant argued that the Plaintiff failed to comply with terms 14, 16, and 18 of the Chambers Orders.
    
12. The Second Defendant also concedes that all parties have failed to file relevant notices under the Evidence Act as required by the Chambers Orders.
    
13. This indicates that all parties were non-compliant with the Chamber Orders.
    
14. The First Defendant supported the Second Defendant’s submission for the proceedings to be dismissed for the Plaintiff’s failure to comply with the Chamber Orders.
    
15. The First Defendant avers that the matter is statutorily time barred which is a substantial component of the First Defendant’s motion which was adjourned for submissions to be made on non-compliance with the Chamber Orders.
    
16. The First Defendant was non-compliant with the Chamber Orders.
    
17. It may be that the issue of whether the matter is statutorily time barred would have been addressed by mediation with an outcome that could have been beneficial to all parties.
    
18. However, as that has not occurred it will be for this Court to make a determination in another hearing.
    
19. In Arnold Amet v Peter Yama [2010] SC1064 it was indicated that the Courts have an obligation to ensure that there is no abuse of process by its mechanisms.
    
20. It is for this reason that the parties were invited to make submissions with regard to whether the non-compliance with Court Orders should result in dismissal of proceedings.
    
21. It may be posited that parties may have abused the Court process through failure to follow Chamber Orders, however, whether such action by the parties warranted dismissal would be a matter within the discretionary power of the Court.
    
22. The National Court has jurisdiction to control its proceedings and can initiate dismissing proceedings for lack of compliance with statutory conditions established Michael Keka v Pius Yafaet [2019] SC1673.
    
23. In this particular instance there was no statutory conditions for which there was a lack of compliance. Moreover, it is compliance issues in relation to the National Court Rules.
    
24. In Roger Ketan v Comrade Trustee Services Ltd [2024] SC2545 it was held that,
    

“2. The National Court has inherent jurisdiction, on its own volition, to consider jurisdiction or competency of any issue such as lack of compliance with statutory conditions at any stage of the proceeding. See cases: Arnold Amet v Peter Yama [2010] SC1064, Michael Keka v Pius Yafaet [2019] SC1673, Patterson Lowa and Ors v. Wapula Akipe and Ors [1992] PNGLR 399, Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, and Chief Inspector Robert Kalasim v. Aina Mond and Ors [2006] SC828.”

25. I have considered whether the Court has jurisdiction to require submissions by the parties on this matter and I am satisfied that the Court has jurisdiction to hear this matter.
    
26. The interests of justice apply to all parties. A party whether large, or corporation or government owned should receive the same consideration as any other party. See PNG Power Ltd v Gura [2014] PGSC 48; SC1402.
    
27. In this regard, I am persuaded that there is no need for this Court to dismiss the proceedings due to the parties’ failure to comply with the Chamber Orders as it would not be in the interest of justice.
    

CONCLUSION

28. While I have accepted that it is not necessary to exercise my discretion and apply a strict approach to dismissing the proceedings for failure to comply with Chamber Orders in this case, it should be considered the exception.
    

ORDERS

29. It is ordered that:

1. The matter will proceed and the motions hearing which was adjourned on 13^th June 2025 will be heard on 23^rd April 2026 at 8am.
   
2. Each party to bear its own costs.
   
3. Time be abridged to the time of settlement by the Registrar, which shall take place forthwith.

________________________________________________________________
Lawyers for the plaintiffs : Leahy Lewin Lowing Sullivan Lawyers
Lawyers for the first defendant: Namani & Associates
Lawyers for the second defendant: National Capital District Commission