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Kilip v Kuri [2025] PGNC 410; N11558 (24 October 2025)

N11558

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 650 OF 2023

BETWEEN:
BROWN KILIP
Plaintiff

AND:
PROBATIONARY CONSTABLE ALEX KURI
First Defendant

AND:
INSPECTOR MICHAEL KAPAL, PSC MINJ
Second Defendant

AND:
CHIEF INSPECTOR ORIM PIAMIA, PPC JIWAKA PROVINCE
Third Defendant

AND:
SUPERINTENDENT NEMA MONDAI, ACP EASTERN END
Fourth Defendant

AND:
DAVID MANNING, POLICE COMMISIONER OF PNG
Fifth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

MT. HAGEN: KAULE AJ
15, 24 OCTOBER 2025

PRACTICE AND PROCEDURE – Writ of Summons – Notice of Motion – application for default judgement – National Court Rules – Order 12, Rules 1, 25 and 28

PRACTICE AND PROCEDURE – Dependency claim – action against the State and its employees – claim under the Wrongs (Miscellaneous Provisions) Act – Claim to be filed within 3 years of date of death – s.31 of the Wrongs (Miscellaneous Provisions) Act –whether claim statute-barred – consideration – ruling

Cases cited
Karl Paul v Aruai Kispe and 2 others (2001) N2085
State v. Alphonse Woihunangu N966 (1991)
Siaman Riri & Anor v. Simon Nusen & Ors N1375 (1995)

Counsel
Brown Kilip, the plaintiff, in person
H. White, for the defendants

RULING

1. KAULE AJ: The plaintiff seeks the following orders by way of a Notice of Motion filed on 22 November 2024:
   

1. Default judgment be entered against the Defendants pursuant to Order 12 Rule 1, 25 and 28 of the National Court Rules 1983.

2. Damages be set down to be assessed at the next civil listings for Trial.

3. Costs of this application.

4. Any other orders this Honourable Court deems proper.

2. In support of his application, the plaintiff filed the following affidavits on 22 November 2024:

(a) Affidavit in Support of Brown Kilip.
(b) Affidavit of Search of James Kingal.
(c) Affidavit of Compliance of Brown Kilip.

3. The plaintiff filed an extract of submissions on 5 May 2025, which he relied on and requested the Court to note, when he moved his Notice of Motion.

BACKGROUND

4. The plaintiff filed his Writ of Summons and Statement of Claim (the “Writ”) against the defendants on 16 November 2023. The matters pleaded in the plaintiff’s Writ are briefly set out in the paragraphs below.

Matters Pleaded

5. The plaintiff is the father of a male Grade 12 student, namely, Mond Brown, who was shot dead by the first defendant in Banz, Jiwaka Province in August 2018.

6. On 13 August 2018, the first defendant who was under the command of the other defendants operated as a Personal Protection Officer to the third defendant. The first defendant held instructions to provide escort for the then Minister for Planning and Monitoring, Richard Maru, and his delegates on a ministerial visit to Jiwaka Province.

7. Through the arrangements made by the other defendants, the first defendant was provided with a Toyota Landcruiser, white in colour, 5 Door vehicle and was given a factory-made 5.56 mm calibre, K2 Korean-made, Police standard issue rifle, for the escort purposes.

8. The first defendant, in the company of other policemen, provided the escort of the ministerial delegates from Kagamuga in Mt. Hagen to Jiwaka Mission Resort in Banz, Jiwaka Province. After the escort run, the first defendant drove to Banz town and confronted his wife and some youths, including the late Mond Brown. The first defendant then without any reason got out of the vehicle and shot the deceased, killing him instantly.

9. A criminal investigation was conducted thereafter whereby the first defendant was arrested and charged for wilful murder. He was later convicted and sentenced to 20 years imprisonment in hard labour.

10. The plaintiff alleges that it was the negligent acts of the first defendant in the course of his duties, and the negligence of the rest of the defendants in not providing close supervision of him, that resulted in the loss of the plaintiff’s son. This has caused loss and damage to the plaintiff for which the defendants are liable.

11. The plaintiff particularised his damages as including the loss of his son, damages for grief and sorrow, psychological tremor, mental distress, premature termination of a youthful life, damages for future prospect in education, employment and earning capacity, and finally, funeral expenses.

12. The Plaintiff claims general damages, special damages, exemplary damages, loss of income, costs and interest in the proceeding.

Events after Filing of Proceeding

13. The Writ of Summons was served on the second defendant on 15 July 2024. The Affidavit of Service of Chief Sergeant Ronnie Akim, filed on 24 September 2024, confirms the same.

14. The Writ of Summons was respectively served on the sixth defendant on 3 June 2024, and on the fifth defendant on 21 June 2024. The Affidavit of Service of James Kingal, filed on 31 October 2024, sets out these facts.

15. The first, third and fourth defendants were not served the Writ of Summons.

16. The only Notice of Intention to Defend filed in the proceeding was by the sixth defendant on 22 August 2024.

17. By 1 November 2024, the second, fifth and sixth defendants did not file their respective defences. The Affidavit of Search of James Kingal, filed on 22 November 2024, confirms this fact.

Preliminary Observations

18. The proceeding by the Plaintiff is essentially a dependency claim under Part IV of the Wrongs (Miscellaneous Provisions) Act (the “Wrongs Act”).

19. The Writ was filed on 16 November 2023, which was some 5 years after the date of the fatal killing of the plaintiff’s son on 13 August 2018.

20. The Writ was not filed within three years after the death of the deceased, as stipulated by Section 31 of the Wrongs Act.

ISSUES

21. The issues for determination are:

1. Whether the proceeding is statute-barred for being non-compliant with Section 31 of the Wrongs Act and should be dismissed.

2. Whether default judgement should be entered against the defendants.

LAW

22. In respect of claims under Part IV of the Wrongs Act, Section 31 provides in mandatory terms as follows:

31. LIMITATIONS OF ACTIONS UNDER PART IV.

Only one action under this part lies for and in respect of the same subject-matter of complaint, and every such action must be commenced within three years after the death of the deceased person.

23. In relation to default under the National Court Rules (the “Rules”), Order 12 Rule 25 provides as follows:

25. Default
A defendant shall be in default for the purposes of this Division -

(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or

(b) where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or

(c) where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired but he has not so verified his defence.

24. Order 12 Rule 28 provides for unliquidated damages in these terms:

28. Unliquidated Damages

Where the plaintiff's claim for relief against a defendant in default is for unliquidated damages only, the plaintiff may enter judgement against that defendant for damages to be assessed and for costs.

CONSIDERATION

25. I now consider the issues raised in the proceedings and determine them.

1. Whether the proceeding is statute-barred for being non-compliant with Section 31 of the Wrongs Act and should be dismissed.

26. At the hearing of the plaintiff’s application on 15 October 2025, the defendants’ counsel submitted that the proceedings should be dismissed as the dependency claim was filed by plaintiff outside of the required period of three years under the Wrongs Act. I then queried counsel as to why such a substantial defence was not filed by the defendants, especially by the sixth defendant. Counsel responded and sought leave of the Court to give time to the defendants to file such a defence out of time.

27. I reject counsel’s submission for two reasons. Firstly, the second, fifth and sixth defendants did not file a defence in the proceeding and have not provided any explanation for allowing time to lapse without filing the same. Secondly, there is no formal application filed by the defendants to seek extension of time to file their defence out of time.

28. However, the Court has an inherent power to inquire, on its own initiative, as to the validity of the plaintiff’s claims in the proceedings. The Court’s power includes checking the form and content of the originating process and dismissing the claims, if need be, without the need for an appropriate application before it. As Injia J said in Karl Paul v Aruai Kispe and 2 others (2001) N2085 at page 7:

"The Court has wide powers to control the conduct of proceedings before it, subject to jurisdictional limitations fixed by Statute. It is in the inherent jurisdiction of the court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case. To this end, it is within the inherent jurisdiction of the Court to scrutinize the form and contents of documents before it. State v. Alphonse Woihunangu N966 (1991).

There is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose a reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r40) or the documents filed in Court is scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party: see Siaman Riri & Anor v. Simon Nusen & Ors N1375 (1995). It is for this reasons that I raised the issue of competency on my initiative".

29. Having perused the plaintiff’s Writ I note that the incident which resulted in the death of the plaintiff’s son occurred on 13 August 2018. The plaintiff filed the Writ on 16 November 2023, which was 5 years after the date of the incident.

30. Section 31 of the Wrongs Act states in mandatory terms that every action “must be commenced within three years after the death of the deceased person.” The plaintiff has not complied with the dictates of that statutory provision. If the plaintiff had filed the proceedings anytime between 13 August 2018 and 13 August 2021, he would be compliant with the stated law.

31. I find that there was undue delay on the plaintiff’s part to commence the proceeding within the time-period set by law. The plaintiff’s claims in the proceeding cannot continue to stand because at the time the Writ was filed on 16 November 2023, the law, which is Section 31 of the Wrongs Act, had already extinguished it. Figuratively speaking, the law closed the door on the plaintiff by 13 August 2021, which was the last day to file an action such as this. Once shut by law, the door cannot be re-opened. The act of the plaintiff filing the Writ did not re-open that shut door or even change the situation.

32. The plaintiff’s right to pursue this proceeding has been irreversibly extinguished by operation of law. The inevitable option left for the Court to take is to dismiss the proceeding for being statute-barred.

2. Whether default judgement should be entered against the defendants.

33. Based on the foregoing considerations and findings, it is not necessary to consider submissions regarding this issue and determine it. As the proceeding is statute-barred, it will purely be an academic exercise to venture down that path, which I am not inclined to do.

34. Default judgment cannot be entered in a “vacuum” where, by operation of law, there is really no proceeding before this Court.

COSTS

35. The award of costs is a discretionary matter. I note that the defendants had every opportunity to raise earlier, either by a filed defence or an appropriate application, the issue of statutory time limits pursuant to the Wrongs Act. Had they done so, this proceeding would not have come this far. Because they failed to do that, I will not order costs in their favour, even though the proceeding is hereby dismissed. Instead, I will order that each party bear their own costs of the proceeding.

THE ORDERS OF THE COURT

36. The Court makes the following Orders:

1. The entire proceeding is dismissed for being statute-barred.
2. Each party to bear their own costs of the proceeding.
3. Time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly.
_____________________________________________________________
Lawyers for the defendants: Solicitor General