SC2702

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 2 OF 2023 (IECMS)

NELLIE KURAO
Appellant

V

KULU LEKA in his capacity as Clerk of Court –
Waigani Family Court of Magisterial Service
First Respondent

KARI POAWAI in her capacity as Magistrate –
Waigani Family Court
Second Respondent

JACOB MIMIGARI in his capacity as Police Arresting Officer at
Waigani Police Station
Third Respondent

MORLIN REU, ELIAS YOHUN, PHILIP LAHEN & NAIP MAIPSON each and severally in their capacities as policemen/women at Boroko Police Station
Fourth Respondent

JOSEPH SALLE in his capacity as Boroko Police Station Commander
Fifth Respondent

NERRIE ELIAKIM in her capacity as the Chief Magistrate
Sixth Respondent

MARK PUPAKA in his capacity as the Chief Magistrate
Seventh Respondent

THE MAGISTERIAL SERVICE OF PAPUA NEW GUINEA
Eighth Respondent

GARI BAKI in his capacity as the Commissioner of Police
Ninth Respondent

DAVID MANNING in his capacity as the Commissioner of Police
Tenth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eleventh Respondent

WAIGANI: ANIS J, DINGAKE J, WOOD J
25, 28 FEBRUARY 2025

SUBSTANTIVE APPEAL – civil – appeals against 2 notices of motion – exercise of judicial discretion – whether the trial judge erred in the exercise of his discretion in dismissing the appellant’s notice of motion for default judgment and in granting the respondents’ notice of motion to dismiss the proceeding – consideration - ruling

PRACTICE AND PROCEDURE – preliminary issue – whether appeal substantially defective thus is frivolous and without merit and should be dismissed – consideration - ruling

Cases cited
SCA 107 of 2023 – Nug Mamtirin and Ors v. Michael Donnelly and Ors (2024), Unreported decision delivered on 2 August 2024 (Hartshorn, Polume-Kiele and Carey)
Jimmy Lama v. NDB Investment Ltd (2015) SC1423

Counsel
N. Kurao, the appellant, in person
No appearances for the respondents

1.	BY THE COURT: This was a substantive hearing of an appeal against 2 decisions of the National Court that were made on 6 December 2022.  

BACKGROUND

2.	The appellant commenced human rights actions against the respondents in the National Court on 13 May 2022 in proceeding HR (WS) 3 of 2022.  She made various allegations and claims against the respondents as pleaded in the said proceeding.  Briefly, she claimed that this person Grace Ibachim had accused her of having an affair with Grace’s husband.  On 13 May 2013, the appellant lodged a complaint against Grace with the Waigani Family Court.  On 16 May 2013, the appellant obtained an interim protective order (IPO) from the Family Court.  She then sought police assistance to try to serve Grace with the IPO.  She alleged that her request from police to effect service of the IPO did not go as planned.  She accused police of colluding with Grace and claimed various breaches of her rights under law.  She also later made various allegations and claims against the respondents which had led to her cause of action. 

3.	On 6 December 2022, the matter returned before the National Court.  The Court identified 2 motions which were pending before it.  The first notice of motion was filed by the appellant on 29 September 2022 for default judgment (appellant’s NoM), and the second notice of motion was filed by the respondents on 25 November 2022 (respondents’ NoM) which sought orders to dismiss the proceeding.  The appellant was represented by the Office of the Public Solicitor.  Her lawyer turned up late in Court on that day.  It was during that time that the Court dealt with the 2 motions where his Honour made ex tempore decisions.  His Honour first dismissed the appellant’s NoM for want of prosecution.  His Honour then proceeded to hear the respondents’ NoM where he granted the orders sought and dismissed the proceeding.  The latter decision was substantive or final.

4.	The appellant was aggrieved and thus filed this appeal.

PRELIMINARY MATTERS

5.	The respondents failed to appear at the hearing.  We were satisfied that the respondents were duly notified of the hearing date of the appeal, and so we allowed the appellant to proceed.

6.	The appellant appeared in person.  We asked the appellant whether she would be proceeding without any legal representation to which the appellant replied that it was very expensive to engage lawyers and that she would move her appeal in person.  When pressed whether she had sought legal advice, the appellant said she did seek some legal assistance but said she had prepared the appeal documents herself.

7.	Having perused the Notice of Appeal filed 4 January 2023 (NoA), it is apparent to us that the NoA appears substantially defective in that it fails to comply with some of the mandatory requirements stipulated under Order 7 Rules 9(c)(d)(e) and (10) of the Supreme Court Rules (SCR). 

8.	Order 7 Rules 9(c)(d)(e) and 10 states:

9.  The notice of appeal shall-
……

(c)	state briefly but specifically the grounds relied upon in support of the appeal; and
(d)	state what judgment the appellant seeks in lieu of that appealed from; and
(e)	be in accordance with form 8; and
……

10.  Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.’

9.	We observe that the appellant appears to plead one main ground of appeal under para. 3 of the NoA which is as follows:

The appeal is sought at the hearing as the matters to be raised in this application are in the whole of the substantive matters consisting the grounds of appeal as set out herein tantamount to substantial miscarriage of justice as follows: [Underlining ours]

10.	Despite the general assertion under the primary ground of appeal, we observe that the grounds or particulars at paras. 3.1 to 3.15 consist of submissions.  Although we note that they assert purported errors of mixed facts and law, they contain assertions and submissions.  Pleading of submissions as grounds of appeal cannot constitute grounds of appeal.  See cases:  SCA 107 of 2023 – Nug Mamtirin and Ors v. Michael Donnelly and Ors (2024), Unreported decision delivered on 2 August 2024 (Hartshorn, Polume-Kiele and Carey) and Jimmy Lama v. NDB Investment Ltd (2015) SC1423.  

11.	These grounds breach Order 7 Rules 9(c)(e) and 10 of the SCR.

12.	We also observe that the NoA did not identify the proceeding that was before the National Court.  Such failure breaches Order 7 Rule 9(e), namely, paras. 1 and 4 of Form 8 which is contained in the SCR.

13.	And finally, we observe from the NoA that the appellant did not identify and distinguish the two decisions appealed against.  There is also no clarity on whether the primary appeal ground covers both decisions or one.  No such distinctions were also made under grounds or particulars 3.1 to 3.15 in the NoA.

14.	With the above serious deficiencies in the NoA, we find as a preliminary matter that the appeal is unfounded, frivolous and without merit, and therefore shall fail.

MERIT

15.	Even if we may be wrong with our preliminary decision (which we say otherwise), we have considered the decision of the motion’s Judge appealed against which is contained at pp. 143 of the Appeal Book filed 11 December 2023.

16.	We have taken the appellant to task to assist us see how the Court may have erred in the exercise of its discretion in relation to the motions and his decisions.

17.	The appellant’s main assertion, which is contained in her written submission, is that she was denied the right to be heard.  She submitted that she should have been allowed to defend the matter.  She also submitted that her lawyer had failed to consult her at the time or during the hearing on 6 December 2022.  

18.	Despite our findings concerning the grounds of appeal, and assuming that denial of a right be heard is a ground that is properly before us for consideration, we make the following observations:

•	The appellant was represented by counsel at the time of hearing of the 2 motions on 6 December 2022;
•	The appellant, through her lawyer, was not ready to move her motion for default judgment at the time;
•	The motion’s Court dismissed the appellant’s NoM for want of prosecution on the basis that the motion had been outstanding for more than 1 month;
•	The motion’s Court stated that it had the power under the National Court Rules to dismiss the appellant’s NoM given its delay of over a month;
•	We note that although no express provision was cited by his Honour in his ex tempore decision, that his Honour was making reference to Order 4 Rule 49(17) of the National Court Rules which states:

The Court may on its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or after it is adjourned twice.

•	We observe that the appellant’s NoM was filed on 7 October 2022, which was more than 1 month or about 2 months old from the time it was dealt with on 6 December 2022;
•	We also observe from the transcript of the proceedings that the appellant’s lawyer had conceded to the motion’s Court decision to dismiss the appellant’s NoM;
•	In regard to the respondents’ NoM, we observe from the transcript of the proceedings that the appellant’s counsel was given an opportunity to respond, however, counsel informed the Court that he had no submissions to make in response;
•	We observe that the Court granted the respondents’ NoM on the basis that the appellant’s cause of action was time-barred; counsel for the respondents had submitted to the Court that pursuant to s. 16(1)(a) of the Frauds and Limitations Act, the cause of action was commenced more than 8 years after the event or events alleged in HR (WS) 3 of 2022; the Court upheld the appellants’ submission, and in so doing dismissed the matter.

19.	Premised on these observations, and if we were to consider appellant’s submissions on the substantive appeal, we would have seen no reason or basis to disturb the findings of his Honour made on 6 December 2022.  We would have found that his Honour had exercised his discretion judicially according to law, that is, when his Honour refused the appellant’s NoM, granted the respondents’ NoM and dismissed the proceeding.

SUMMARY

20.	For these reasons and in summary, the appeal will fail.

COST

21.	We will make no order on cost.

ORDERS

22.	We make the following orders: 

1.	The appeal is dismissed in its entirety.

2.	The Court Order of 6 December 2022 made by the National Court in proceeding HR (WS) 3 of 2022 – Nellie Kurao v. Kulu Leka and Ors is confirmed.

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Lawyers for the eleventh respondent: Solicitor General