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Kairar Enterprises Ltd v Rosso [2025] PGNC 428; N11565 (20 October 2025)

N11565

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA NO. 10 OF 2023

BETWEEN
KAIRAR ENTERPRISES LIMITED
Plaintiff

AND
HON JOHN ROSSO, MP, as Minister for Lands & Physical Planning
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

WAIGANI: PURDON-SULLY J
6, 20 OCTOBER 2025

PRACTICE AND PROCEDURE – Application to set aside consent order – Procedural irregularity in obtaining consent order as grounds for application to set aside – Application of s155 (4) Constitution considered in granting order to set aside – Objection to competency – Whether the applicant should have proceeded by way of fresh proceeding and not notice of motion – Application to set aside consent orders granted – Court has power under s 155(4) of Constitution to remedy the situation – Mode of proceeding appropriate and within the exception identified in authorities - Tovon v Maipo [2016] N6240 and Simon Mali v The State [2002] SC690 discussed - s 13 of the Attorney-General’s Act 1989

Cases cited
Tovon v Maipo [2016] N6240
Simon Mali v The State [2002] SC690
Tika & Associates Inc v Ngangan [2019] PGNC 155; N7857
Barry v Luma [2017] SC1639
Kalgregos Electrical Limited v Mamun Investments Limited [[2022] SC2655
Lipsey v The State [1993] PNGLR 405; N1154

Counsel
Mr. Bakaman for applicants (Respondents to Appeal)
Mr. Yaga for respondent (Appellant in the Appeal)

1. PURDON-SULLY J: This is an application to set aside consent orders granted by this Court on the 10 May 2024 (the orders) based on procedural irregularity in obtaining the orders by the lawyer acting on behalf of the Acting Solicitor General, Mr E’ava Geita, without the Acting Solicitor General’s knowledge.
   
2. The application is initiated by way of notice of motion filed on 20 November 2024 supported by an affidavit of Mr Geita filed the same date and a further affidavit filed by the applicant’s lawyer, Mr Bakaman, on 31 July 2025.
   
3. It seeks to set aside the orders pursuant to Order 12 Rule 1 and Order 12 Rule 8(4) of the National Court Rules (NCR) and s 155(4) of the Constitution.
   
4. The application is opposed by the respondent, the appellant in the appeal. By notice of motion filed 20 November 2025 the respondent objects to the competency of the applicant’s notice of motion on the basis that the application is in breach of Order 12 Rule 8(4) of the NCR, s 155(4) of the Constitution, Order 4 Rules 4 and 37 of the NCR and Order 4 Rule 49(8) of the NCR.
   
5. At the hearing the applicant abandoned the jurisdictional basis for the orders sought founded in Order 4 Rule 8(4). The thrust of the submissions made is that pursuant to s 155(4) of the Constitution the Court has the power to set aside the orders.
   
6. In Tovon v Maipo [2016] N6240 (Tovon), Kandakasi J summarised at [36] the principles governing applications to set aside orders by consent which finalise proceedings as follows:

36. The principles governing applications for a set aside of orders by consent which finalize any proceeding can be summarized in this way:

(a) Like any other agreement, a consent order finalizing any proceeding that was arrived at by misrepresentation or fraud can be set aside on application of a party affected by the order;

(b) The majority of case authorities on point stand for the proposition that, claims of lack of instructions and or authority in a party's lawyer to consent to an order cannot undo or result in a set aside of the consent order. Instead, the party concerned as a recourse against his lawyer if indeed the lawyer acted without instructions.

(c) The principle stated in (b) above is founded on the doctrine of ostensible authority. This is necessary for the purposes of protecting the innocent third parties and to also safeguard, protect and encourage parties to have their disputes settled through their own direct negotiations or other forms of ADR by upholding their agreement subject only to fraud and misrepresentation brought whom to the other parties which may undo them;

(d) If the consent order is yet to be formally entered, an application by motion in the same court that made the order can be filed and pursued;

(e) If however, the order has been formally entered, the order can be revisited only by a fresh proceeding or by an appropriate Supreme Court review application; and

(f) There is one exception to the above. Where a serious error or irregularity is apparent on the face of the record as was the case in the Simon Mali case, the Court has power to readily deal with the matter to safeguard against any abuse of its process.

[Emphasis for discussion purposes]

7. Having heard fulsome argument on the matter and having considered the decisions of Simon Mali v The State [2002] SC690 (Mali) and Tika & Associates Inc v Ngangan [2019] PGNC 155; N7857 (Tika) I am satisfied firstly, that the Court exercising its inherent jurisdiction under s 155(4) of the Constitution has power to set aside a consent order even if it is final (Mali quoted with approval in Tika at [7]).
   
8. Pursuant to s 155(4) of the Constitution:
   

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seen to them proper orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

9. The orders here must be properly contextualised, where the endorsement of the orders was irregularly or improperly obtained, impacting the underlying agreement by reason of the consent of the Solicitor General not being given (Tika at [14]).
10. I am satisfied that there was a procedural irregularity associated with the obtaining of the orders, an error on the face of the record, one that was obvious and self-evident given that Mr Geita’s signature does not appear on the document and only Mr Geita can sign the consent the orders.
    
11. The evidence of Mr Geita, Acting Solicitor General is:
    1. The order was signed by an officer within his office and not by himself (at [3]).
    2. On 4 November 2024 he was informed by the Department of Lands & Physical Planning that no instructions had been given for consent (at [4]).
    100. He did not authorise under his hand any consent order nor indicate consent either implied or express for the officer to enter into the consent order (at [5]).
12. Based on that evidence, I am satisfied that the consent of Mr Geita was not properly obtained and could not be viewed as valid consent to the orders. In this case the Office of Solicitor General had the carriage of the State’s defence to the appeal. Only the Acting Solicitor General was authorised to settle the proceedings on behalf of the State (s 13 of the Attorney-General’s Act 1989).
    
13. For these reasons I accept that it was open to the applicant to apply to the Court in the exercise of its inherent power under s 155(4) of the Constitution to set aside the orders by reason of procedural error.
    
14. As to whether the appropriate mode has been used by the applicant to do so, it is submitted on behalf of the respondent that because a notice of motion is only an interlocutory process, it cannot be used to commence or recommence a substantive proceeding. It can only be used when the substantive proceeding is current. Where the proceeding is brought to a finality by way of consent orders the currency or life of the proceeding is at an end (see Barry v Luma [2017] SC1639; Kalgregos Electrical Limited v Mamun Investments Limited [[2022] SC2655).
    
15. As such, it is submnitted, in proceeding to remedy the situation by way of notice of motion to set aside the orders, and not by way of fresh proceeding, the application in its current form is incompetent (Lipsey v The State [1993] PNGLR 405 N1154).
    
16. I do not accept the submission.
17. I am satisfied that this is a matter that falls within the Mali exception referred to in Tovon such that it is appropriate for the applicant to proceed by way of notice of motion (as was the case in Mali) and that the Court has power to readily deal with the matter to safeguard against abuse of its process.
    
18. Proceeding to set aside the orders by way of Order 12 Rule 8(1) is not open to the applicants as they could only do so if the orders had not been entered. The orders were made on 8 May 2024 and then entered on 10 May 2024. The evidence satisfactorily explains the delay, the applicants not made aware of the issue of lack of consent until 21 October 2024.
    
19. In the circumstances I am satisfied that it is open to the applicants to rely upon s 155(4) of the Constitution, there being no other remedy available under other law to protect its rights (Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government [2006] SC844).
    
20. In the result:
    1. The respondent/appellant’s objection to competency is dismissed.
    2. The applicants/respondents notice of motion filed on 20 November 2024 is upheld.
    100. Each party to bear their own costs of the application.
    4. The matter be listed for directions on 5 November 2025 at 9.30am the parties to engage prior thereto and come to court with agreed directions or where no agreement in reached each provide to the Court a Minute of proposed directions.
    5. Time to abridge Office of the Solicitor General: .

___________________________________________________________
Lawyer for the applicant: Solicitor General
Lawyers for the respondent: Mel & Henrry