SC2720
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO 146 OF 2022

MARTIN KOMBRI
Appellant

V
ANTHONY HAMAKA
First Respondent

TIMUGU IRALI
Second Respondent

BEN TABE
Third Respondent

TATA HARALU
Fourth Respondent

WAIGANI: MANUHU J, MURRAY J, WAWUN-KUVI J
25 & 28 MARCH 2025

CIVIL APPEAL- Consent Order- Grounds Of Appeal- Whether the appellant pleaded the grounds of appeal advanced at the hearing? 
CIVIL APPEAL- consent order- duty of a lawyer to the court-whether the appellant had a duty to the Court to disclose material facts? 

Cases cited
Keitinga Ltd. v Ane (2024) PGSC 44; SC2577
Schubert v The State [1979] PNGLR 66

Counsel
G Geroro for the appellant
P Harry for the respondents

1.	BY THE COURT: Where is the line to be drawn between a lawyer’s duty to his client and his duty to the Court? The appellant, a lawyer, found himself being sued in his personal capacity because as the trial judge found, he failed in his duty to the Court by not disclosing material facts and or information which would have impacted the consent order.

2.	 The essence of the ongoing conflict between the parties is over who are the lawful management committee members of the Moran Local Level Government Special Purposes Authority (MLLGSPA). 

3.	The appellant was the lawyer for one faction and the respondents are the other faction. 

4.	In an earlier proceeding, styled OS 368 of 2018, Kandakasi DCJ dismissed proceedings filed by the appellant representing one faction. Less than 4 months later, the faction represented by the appellant instituted a second proceeding styled OS 948 of 2018. In the second proceeding, the names of parties were changed, however the dispute was still the same. The respondents were not named and were not aware of the second proceeding. The appellant then took steps to negotiate a settlement with the parties named and an agreement was reached. The agreement was reduced into the Consent Order. The Consent Order was brought before Dingake J who endorsed it. The appellant did not inform Dingake J of the prior proceedings and its outcome.

5.	The respondents learning of the Consent Order then took immediate action to set aside the Consent Orders. It is the decision of the primary Judge to set aside the Consent Order that it is now subject of this appeal.

The Law

6.	The factors to consider when determining an appeal are settled. In the most recent case of Keitinga Ltd. v Ane (2024) PGSC 44; SC2577, the Court stated:

“In an appeal the Supreme Court is guided by the following principles when deciding whether the appeal should be upheld. The appeal court should be slow to interfere with the exercise of a discretionary power by the lower court unless it is satisfied that the court below:
acted upon a wrong principle; or
gave weight to extraneous or irrelevant matters; or
failed to take into account relevant considerations; or
made a mistake as to the facts,
and even where there is no identifiable error, the appellate court can infer such an error if the  resulting judgement is "unreasonable or plainly unjust.”

Grounds of Appeal

7.	The grounds of appeal have become contentious between the parties. Following earlier directions, the parties consolidated their arguments into two main issues. Mr Harry, representing the respondent, argues that the issues and contentions raised by Mr Geroro in his oral submissions do not stem from the Further Supplementary Notice of Appeal. Mr Geroro, in response, asserts that the issues and matters he raises in submissions are in the Notice specifically grounds 3.1.5 and 3.3.2.

8.	The 15 pages containing the grounds of appeal are summarised as follows:

1.	Errors in Pleadings and Evidence: The primary judge failed to address issues of improper pleadings, duplication of proceedings, and uncorroborated evidence. ​
2.	Misinterpretation of Court Orders: The primary judge misinterpreted previous court orders, particularly regarding the restraint of the appellant’s clients from holding positions in MLLGSPA. ​
3.	Improper and Fraudulent Involvement and Lawyers’ Instructions: The primary judge incorrectly found that the appellant, the Solicitor General and other defendants acted improperly and fraudulently, despite having proper instructions. ​
4.	Standing and Competency Issues: The primary judge did not address the standing of the respondents to file certain proceedings, leading to errors in the judgment. ​
5.	Misapplication of Funds: The primary judge ordered the refund of K2 million without sufficient evidence. ​
6.	Consent Order Validity: The primary judge erroneously set aside the consent order based on claims of fraud and misrepresentation without proper justification. ​
9.	The issues are:
1.	Whether the appellant was the proper party to be named in the proceedings?
2.	Whether the primary judge erred in making consequential orders directing the Bank of South Pacific to produce its records relating to the account of Moran Local-level Government Special Purposes Authority?
10.	 Matters raised in oral submission by Mr Geroro are:
1.	Whether an order should have been made against the appellant when he did not benefit from any monies from the account? 
2.	Whether the primary judge erred when he made the order for refund when it should have been a matter left for the trial having set aside the consent order?
11.	We restated grounds 3.15 and 3.3.2 for ease of refence:

“3.1.5 There was an error of mixed fact and law resulting in the occurrence of a miscarriage of justice when the trial Court found that a K2 million belonging to MSPA was misapplied as a result of the Consent Order and ordered for same to be refunded as pleaded in Paragraphs 39 and 40 of the SOC and deposed to in Paragraph 83 of the Affidavit of the First Respondent filed on 7th September, 2021 when there was no material evidence in the form of bank statements adduced by the Respondents to substantiate the claim.
3.32 Any claim for the restitution of money drawn from the bank account of MSPA with Bank of South Pacific Ltd can only be made by the holder of the MSPA account and the Respondents were not in that capacity by the trial Court erred both in mixed fact and law in upholding the relief sought in that aspect by the Respondents and granted same.”

12.	From perusal, ground 3.1.5 relates to a challenge on the finding that K2 million was misapplied because of the Consent Order and ground 3.3.2 relates to the issue of whether the respondents had standing to seek orders for restitution.

13.	Clearly there is merit in Mr Harry’s contention. Having perused the Further Supplementary Notice of Appeal, we find on the first issue, that there are no grounds on the decision of the trial judge to order the Bank of South Pacific to furnish statements.

14.	On the matters raised in submissions by Mr Geroro, these were not matters specifically found in the Further Supplementary Notice of Appeal and were made orally with no notice to Mr Harry.

15.	Section 17 of the Supreme Court Act provides:

“ 17. TIME FOR APPEALING UNDER DIVISION 2.
Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of the judgement in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days”.

16.	Rule 26 of the Supreme Court Rules provide:

A party who files a supplementary notice under Rule 25 shall file and serve it in accordance with Rule 13. The addition of a new ground shall not be made after the expiry of 40 days after the date of the judgement in question, or such further period as has been allowed by a Judge within those 40 days. 

17.	As said in Schubert v The State [1979] PNGLR 66:

“We should like at the outset to voice our disapproval of this growing practice of seeking to add new grounds at the eleventh hour. Any departure from the grounds of appeal stated in the notice of appeal is and will only be allowed in exceptional cases, and such allowance is in the discretion of the court. We think it is also timely to draw attention to the fact that a fresh ground of appeal may well be regarded as being more than an amendment of existing grounds and amount to a new notice of appeal, in which case it will invariably be struck down by s. 27 of the Supreme Court Act 1975 [now section 29]

18.	While the statement of the Court was in a criminal appeal, the requirement of filing the Notice of Appeal within the stipulated time period and seeking an extension are the same. For civil appeals it is found under s 17 of the Act.

19.	Here there was no leave sought and granted. If a new ground or an amendment to an existing ground is made out of time and without leave in compliance with the Supreme Court Act and the Rules, it is out of time and not made.
20.	Consequently, we refuse to entertain any new grounds advanced by the appellant.

21.	Before addressing the issue, we must reconcile the appellant’s position on his numerous other grounds in the Supplementary Notice of Appeal.  Mr Geroro took no position and made no submissions on the grounds contained in the Supplementary Notice. He merely asserted that he advised his client to abandon all grounds and to focus on the issue of the consequential order relating to the refund of the money. However, in the same breath, he refused to concede that he had abandoned all the grounds. It is the appellant’s appeal, and it is for him to direct the court to the grounds and issues he considers pertinent. It is also the duty of Mr Georo to assist the Court. By failing to do so, we can conclude that the appellant has abandoned all grounds of appeal except for standing.

22.	 On the issue of standing, it appears that it falls under the category of improper and fraudulent involvement and lawyers’ instructions. 
 
Consideration

23.	The issue of standing according to the Notice of Appeal, as well as what limited assistance given by Mr Geroro, suggests that the appellant was merely following instructions and should not have been named in the set-aside proceeding.

24.	Standing is not the real issue. The respondents clearly pleaded in their Statement of Claim that the consent order would not exist without the appellant's actions. The real issue is whether the appellant had a duty to disclose material facts to the court. 

25.	Material facts, such as prior proceedings, court orders, and the involvement of other parties in the dispute, were not confidential.

26.	We cannot emphasise the point more clearly than by saying that unless a court is provided with accurate, relevant, and material information, it cannot properly exercise its powers. Lawyers as officers of the court owe a duty to make full disclosure of all material facts, especially regarding prior court orders that impact the proceedings. The practice is long accepted and has its basis in the Professional Conduct Rules.

27.	 A lawyer, or any party who seeks an audience with the court must conduct their case transparently and fairly.
28.	Here, as the primary judge correctly addressed and found, the appellant as a lawyer failed in his duty to the court when he did not inform the court of the proceeding styled OS 368 of 2018. He further failed in his duty to the court and conducted himself inconsistent with the rules of his profession when he filed a second proceeding with different parties seeking effectively the same orders as the first proceeding.

29.	The appellant has not demonstrated any error in the decision of the primary judge.

Orders

30.	It is ordered:
1.	The Appeal styled SCA No 146 of 2022 is dismissed.
2.	The appellant shall pay the respondents costs of the appeal, on a party-party basis, to taxed, if not agreed.

Lawyer for the appellant: Geroro Lawyers
Lawyer for the respondents: Harry Lawyers