Sc2830

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM 20 OF 2022

BETWEEN:
MAXWELL KINAL PAIYE
Appellant

AND:
CHRIS MANDA AND OTHERS
Respondent

WAIGANI: LOGAN J, KANGWIA J, BRE J
27 AUGUST 2025

PRACTICE AND PROCEDURE – where the appellant instituted judicial review proceedings against a decision of the Surveyor General – where the appellant did not appear on the date listed for hearing – where the National Court dismissed the proceeding for want of prosecution – where the reason the appellant did appear was due to a mistake by the registry concerning the date of the hearing – where the appellant filed a notice of motion to appeal the decision to dismiss the judicial review proceedings – where the appellant did not annex a copy of the orders as certified by the judge’s associate or registrar the orders dismissing the appeal – whether the orders in fact annexed should be deemed as certified nunc pro tunc – whether the appellants appear to have an arguable case - there was an arguable case – orders deemed certified – appeal allowed.
 
Facts:

1.	The appellant instituted judicial review proceedings on 1 November 2019.

2.	In that proceeding, the registry notified the parties that a hearing was to occur on “Monday, 06 July 2022”, where 06 July 2022 was a Wednesday.

3.	The hearing occurred on Monday 04 July 2022. The appellant did not appear on that day, and the court dismissed the proceedings for want of prosecution.

4.	The appellant filed a notice of motion to appeal that decision, but the respondent took issue with whether the appellant attached orders for dismissal for want of prosecution correctly certified by a judge’s associate or registrar.

5.	The respondent argued that the notice of motion did not comply with Order 10 Rule 3(b)(ii) of the Supreme Court Rules 2012. Given that the appellant had an arguable case, and that there was no question that the orders as annexed were as made, the orders as annexed should be deemed to be certified nunc pro tunc from the date of the filing of the notice of motion.

Cases cited

Unas v Mumu [2025] PGSC 13 SC2704
Noah v Kimas [2025] PGSC 41 SC2734

Counsel

PH Pato, for the appellant
Ms. Poki for the respondent

1.	LOGAN J: There is a long history to this case which arises from what I do not doubt is a genuinely held dispute about where the true boundary between two properties lies. One property is portion 3724C, Taurama Road, Vadavada, in the National Capital District. Portion 1 which belongs to the appellant, Mr Maxwell Kinal Paiya, and portion 2789C, portion 2 which belongs to the third respondent, Dr Thilgawathy Subendranathan. 

2.	At the heart of the appellant’s grievance is a view that the third respondent in the development of portion 2 is encroaching on portion 1. In a litigious sense, it is possible to trace the dispute back as far as 9 October 2012 in proceeding OS 599 of 2012 in the National Court. In that proceeding, on 27 May 2016, the National Court ordered that the appellant remove a fence which he had erected on portion 2. The appellant complied with this order. What he also did was to cause the boundary to be surveyed. As a consequence, he alleges that the fence originally erected but removed in response to the court order was on the true boundary between the properties. He also alleges that the Surveyor General who is a respondent failed to register the survey. 

3.	Consequently, on 1 November 2019 the appellant instituted judicial review proceedings in the National Court in which he contended that the Surveyor General had failed to exercise his powers under the Survey Act 1969 with respect to the survey and with the boundary. The case proceeded in somewhat leisurely way in the National Court. It is not necessary to set out at length the history, only to note that on 4 July 2022 upon the failure of an appearance by or on behalf of the appellant that day, the National Court made orders dismissing the judicial review proceeding for want of prosecution. The appellant did not, as perhaps he might have, seek by application made to the National Court to have the judgment for want of prosecution set aside. Instead, the appellant filed a notice of motion instituting an appeal against the dismissal of the judicial review proceeding. 

4.	It is accepted on the part of the respondent that this was an alternative method of challenging the order of dismissal. 

5.	The appellant is said by the third respondent, the only active party or respondent, to have failed to comply in instituting the appeal by notice of motion to comply with order 10 rule 3(b)(ii) of the Supreme Court Rules 2012 in that it is said that the appellant has not annexed a copy of the order of dismissal made in the National Court certified by the judge’s associate or the registrar. There is no formal objection to competency. 

6.	However, as was in my view correctly conceded by the appellant, if truly the absence of annexing a copy of the order certified in accordance with the rule mentioned brought with it an incompetency of initiating the process, then the absence of an objection could not cure that incompetency or what might result is that the late raising, rather, of the defect might sound against the respondent concerned in terms of the fullness of a costs order. 

7.	One need look no further than a recent judgment of this court in Unas v Mumu [2025] PGSC 13 SC2704 to appreciate that in this jurisdiction there is at present a sharp difference of views as to what constitutes certification of an order for the purposes of order 10 rule 3(b)(ii) of the Supreme Court Rules. Indeed, Unas v Mumu itself exemplifies that sharp difference in that the court was divided as to which line of authority was correct. 

8.	However all this may be, it would be unnecessary to express any view in this case one way or the other as to the meaning of “certified” in order 10 rule 3(b)(ii) of the Supreme Court Rules if the court, acting under section 42 of the Supreme Court Act 1975, gave a particular direction in relation to the compliance of the initiating matters of motion. That section provides that: 
“The practice and procedure in and in relation to a matter in the Supreme Court shall be the practice and procedure provided by law or the rules of court in relation to matters of that kind, except as directed by the Supreme Court at any stage of the matter.”
9.	Counsel for the appellant came to put to the court in the course of an exchange with the bench that the case was one where such a direction should be given deeming certification nunc pro tunc. In other words, counsel sought that the court make an order that on and from the date of filing of the notice of motion, the notice of motion to be sufficient for the purposes of the institution of an appeal irrespective of whether or not the dismissal order was or was not certified as required by order 10 rule 3(b)(ii). In other words, the court would deem the dismissal order to be duly certified and sufficient. So doing would render it completely unnecessary to resolve or even express a preference as to which line of authority concerning that rule should be followed. 

10.	For reasons I shall now relate, the interests of justice in this case overwhelmingly favour, in my view, the court’s acting under section 42 of the Supreme Court Act. In making that observation, I have particularly noted another recent judgment of this Court, Noah v Kimas [2025] PGSC 41 SC2734 in which the court at paragraph 42 adverted to the existence of section 42 of the Supreme Court Act and indicated a disposition to have used the power thereby conferred to cure any question of non-compliance in circumstances where it was patent that there existed genuine aggrievement which required an exercise of the judicial power to resolve it. The present is just such a case in my view.

11.	There is a reason why the appellant failed to appear on Monday, 4 July 2022 and it is not a reason of which the learned primary judge was aware on that date. After being requested more than once by the lawyers for the appellant, the National Court registry by the judicial review clerk sent the appellant’s lawyer on 20 June 2022 an email ensuring a request as to the date of the next directions hearing in the National Court proceeding. Materially, the registry advised the appellant’s lawyer, “The above matter is now confirmed for Monday, 06 July 2022 at 9.30 am for directions hearing.” 

12.	A fact of which we may take judicial notice is that, in 2022, 6 July fell on a Wednesday, not a Monday. In that week the Monday fell on 4 July 2022. The order of dismissal was made upon the failure of the appellant either personally or by his lawyer to appear on Monday, 4 July 2022. The appellant’s lawyer did attend the court on 6 July 2022. On that day he found there was no listing of the case. Shortly thereafter, he found that the case had been dismissed two days earlier on Monday, 4 July. Of course, in a perfect world, the appellant’s lawyer should have appreciated the disjunct between the nominated day of the week and the nominated date in the registry’s email of 20 June 2022. 

13.	So much was put on behalf of the third respondent in terms of the duty of due diligence by a lawyer. But it is necessary to appreciate that the foundation for whatever inadvertence there was on the part of the appellant’s lawyer was an error within the National Court registry. Considerable care needs to be taken within the registry in furnishing correct advice to parties, even legally represented parties as to the correct date of a listing of any case. It is a tempering thought though, both with respect to the registry and also the appellant’s lawyer, that the system of justice in this country is one administered by human beings for the benefit of human beings and legal entities which they may control and every now and again we human beings without any ill intention make errors. It would in my view be most unfortunate indeed if a human error originating within the National Court registry visited upon a person with a genuine grievance, an absence of an exercise of national judicial power to resolve that grievance. 

14.	Regard to the material before the court discloses that the appellant’s position in respect of the true boundary of the property and the obligation of the Surveyor General is not inarguable. I do nothing more in making that observation than recognise an arguable position. I do not in any way, shape, or form intend that observation to be a concluded view. However, the coexistence of a human error inside the registry compounded by inadvertence understandable enough on the part of the appellant’s lawyer and presence of an arguable case on the part of the appellant persuade me that the present is a case where no matter or form should stand in the way of the appellant securing from this court an order which sees the case remitted to the National Court for determination on the merits. 

15.	Further with all respect to those who have different views in relation to what constitutes certification of an order for the purposes of order 10 rule 3(b)(ii) of the Supreme Court Rules, there is a certain sterility about that difference in circumstances where as here it is quite plain that the order concerned bears on its face the court’s seal and a signature on behalf of the registrar.

16.	For these reasons then and acting under section 42 of the Supreme Court Act, I would deem the notice of motion filed in this court to be sufficient for the purpose of instituting an appeal against the order made in the National Court on 4 July 2022 including deeming that the annexed order of that day to be sufficient for the purposes – including relieving the appellant from any need for compliance with order 10 rule 3(b)(ii) of the Supreme Court Rules. 

17.	I would further order that that order take effect nunc pro tunc on and from the date of the filing of the notice of motion. I am also persuaded that were the learned primary judge to have been aware of the error within the registry in notifying the appellant of the date of the directions hearing that no order of dismissal would have been made. There is a complete explanation for the failure to attend on that day, and it is in my view a sufficient explanation that the learned National Court judge was not aware of a relevant fact. Further, the appellant does have an arguable case. 

18.	In these circumstances, I would also set aside the order of dismissal made on 4 July 2022. I would remit the case to the National Court for the giving of all necessary directions and for the hearing and determination of the case according to law. As was frankly conceded by counsel for the appellant, there is an element of inadvertence in the failure to appreciate the disjunct between nominated day and date in the registry communication, and related to that, something of an indulgence in acting under section 42 of the Supreme Court Act. 

19.	In these circumstances, counsel for the appellant quite properly conceded that the case was not one in which he would press for costs. The further order I would make is that each party bear their own costs of and incidental to the appeal. Those are my reasons for judgment.

20.	KANGWIA J: I agree entirely with the decision of the president. In agreeing with the decision, I raise a procedural issue that goes to further support the decision to set aside the decision of the court below. Pursuant to order 7 rule 15, an objection to competency can only be raised in an appeal, not the notice of motion instituting the appeal. In the present case, even though the objection to competency appears to be properly raised in the appeal, it has not been properly brought before this court as required by order 7 rule 15 of the Supreme Court Rules. By that omission alone, it has lost its significance. Even though the mandatory requirements of order 10 rule 3(b)(ii) on certification by the Associate is lacking in the present appeal, in my view there has been substantial compliance with the notice of motion instituting the appeal. 

21.	If the procedural irregularity was allowed to stand as a ground or basis to allow the decision in the court below to stand, the entire claim would be lost. It requires that the substantive issue should be properly dealt with. It was never attended to in the court below and it still lingers in the corridors of the court. As to costs, I also agree with the president that parties should bear their own costs. 

22.	BRE J: I agree with the decisions of my brother judges, the president Justice Logan and Justice Kangwia on their reasons and the decisions made to set aside to remit the matter back to the National Court and then each party bears their costs.

Orders
1.	The appeal be allowed.
2.	The order of the National Court on 4 July 2022 dismissing for want of prosecution proceeding OS (JR) 788 of 2019 be set aside.
3.	Pursuant to s 42 of the Supreme Court Act, the initiating notice of motion filed herein be deemed sufficient for the initiation of the present appeal, including that the copy of the order of the National Court dismissing the proceeding be deemed sufficient for the purposes of the Court's Rules.
4.	Order 3 take effect nunc pro tune on and from the date of the institution of the appeal.
5.	The proceeding be remitted to the National Court for the giving of all necessary directions and the hearing and determination of the judicial review application according to law.
6.	Each party to bear their own costs.
________________________________________________________________
Lawyers for appellant:    Parker Legal
Lawyers for respondent:   Warner Shand