SC2862

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SC APPEAL 44 OF 2025 (IECMS)

BETWEEN:
BUDS BOTIKE, Chief Executive Officer of Nawaeb District Development Authority and Administrator of Nawaeb District
First Appellant/Applicant

AND
NAWAEB DISTRICT DEVELOPMENT AUTHORITY
Second Appellant/ Applicant 

AND
SETAO INVESTMENT LIMITED
Respondent

WAIGANI: MAKAIL J, CROWLEY J, ANDELMAN J
 17 DECEMBER 2025; 23 MARCH 2026 

SUPREME COURT – PRACTICE & PROCEDURE – Application to dismiss appeal – Grounds of – Failure by appellants to serve notice of appeal without delay – Explanation for delay – Multiple addresses for service – Service of notice of appeal on multiple times without success – Application dismissed – Supreme Court Rules – Order 7, Rule 13   

SUPREME COURT – PRACTICE & PROCEDURE – Application to dismiss appeal – Grounds of – Lack of standing of appellants to conduct appeal – No board resolution authorizing conduct of appeal – No rule requiring extra step to obtain board resolution to authorize conduct of appeal – Application dismissed

Facts

This is an application by the Respondent to have the First and Second Appellants’ appeal dismissed for failing to serve the notice of appeal without delay and that the Appellants lack standing to bring this appeal.  As to the first ground, the Respondent argued that the notice of appeal was not served in accordance with the Supreme Court Rules. Secondly, the Appellants lacked standing because they did not provide evidence of a resolution of their board, authorizing an appeal. To support this, the Respondent relied on the District Development Authority Act 2014. 

Held:

1.	Failure to comply with the Supreme Court Rules in relation to service may result in an appeal being dismissed.  It was considered that 7 to 14 days was sufficient in a town where the service was within the town where the registry was located and in another case, a period of 48 days was not considered in breach of the rule: Yema Gaiapa Developers Pty Ltd vs Hardy Lee (1995) SC484) and Catherine Graham v Darryl Lee (2022) SC2287) refereed to. 

2.	 The differences in these cases highlight that ultimately each case turns on its own facts as to why there has been a delay. 

3.	The affidavit of Mr Itox provided an explanation for the delay in service and of how the Notice of Appeal came to be handed over at Court. Though 48 days delay in serving a Notice of Appeal is not in keeping with the efficient resolution of appeals that is contemplated in the Supreme Court Rules, the Appellants endeavored to serve the Notice of Appeal on multiple occasions without success. As such their reasonable attempts at service could be characterized as being “without delay” within the meaning of Order 7 Rule 13 of the Supreme Court Rules. 

4.	The procedural requirements for instituting an appeal are set out in the Supreme Court Rules not the District Development Authority Act. There is nothing in the Supreme Court Rules that requires an appellant corporation to evidence their board’s resolution to appeal. 

5.	 There is no utility in adding an extra step to the process of appealing under the grounds of “in the interest of justice” under s155(4) of the Constitution to require companies to evidence their board resolutions to institute appeals.

6.	The application is dismissed with costs on an indemnity basis.  

Cases cited

Yema Gaiapa Developers Pty Ltd v Hardy Lee (1995) SC484
Catherine Graham v Darryl Lee (2022) SC2287

Counsel

Mr. H Babe, for the Appellants
Mr. C Kaki, for the Respondent

JUDGEMENT

1.   BY THE COURT: This is an application by the Respondent to have the First and Second Appellants’ appeal dismissed for failing to serve the notice of appeal without delay. They further submit that the Appellants lack standing to bring this appeal.

2.   The substantive proceeding involves the recovery of a debt by the Respondent for work performed under a contract, though this is barely relevant to the disposition of this application. The hearing (and related supporting documents) was replete with accusation and counter accusation regarding the behaviour of the lawyers for each side. We pause to note that this matter is an example of the unedifying litigation tactics all too often engaged in, which is adding considerable to the workload of this court. 

Procedural History

3. There is almost no dispute between the parties as to the background facts. The Appellants, (a District Authority and District Administrator) engaged the Respondent, a construction company, to upgrade roads in the district. The project was known as “Emergency Rehabilitation & Maintenance of Erap to Boana to Law Ring Road 25km in Nawae District, Morobe Province”. 

4.    On 14 September 2023 the Respondent filed an originating summons seeking payment of an outstanding invoice of K1,450,938.90. Further, it sought an order that the Appellants “…shall settle all subsequent invoices…” in accordance with the contract between the parties. 

5.   The Appellants did not contest the proceedings. As such on 30 April 2024 the National Court issued a default judgment ordering Appellants pay K1,450,938.90 within 14 days. Further, the National Court ordered: 

“The proceeding is adjourned to 23 May 2024 at which time the Plaintiff shall inform the court whether any subsequent invoices, or some of them, have been paid or are outstanding in relation to the contract works which as (sic) the subject of this proceeding, and the court will make further direction where necessary for the determination of those issues”

6.The Respondent, having still not been paid, sought a garnishee order. On 19 September 2024, it was granted leave to serve the garnishee notice on Bank South Pacific Limited (BSP). On 25 September 2024 it filed a garnishee notice. On 4 October 2024 the National Court made the garnishee order absolute, and on 7 October 2024, the Respondent served the Garnishee Orders on BSP.

7.	When the next progress payment went unpaid the Respondent again applied to the National Court. This time the Respondent had the benefit of the National Court orders of 30 April 2024 that said “… the court will make further directions where necessary for the determination of those issues”. The issues the National Court were referring to were “…any subsequent invoices… outstanding in relation to the contract works.”

8.	This time the Appellants attended and disputed the case.

9.	 On 19 March 2025 the National Court ordered that the Second Appellant “…shall pay the plaintiff the amount of K1,387,550”. 

10.	 Meanwhile the Respondent continued to pursue payment. On 11 April 2025 the National Court gave leave to file and serve the garnishee notice on BSP. 

11.	 On 14 April 2025, the Appellants filed a Notice of Appeal against the decision of the National Court of 19 March 2025 that they should pay the Respondent the amount of K1,387,550. However, they didn’t serve the Respondent with that appeal for reason that will be canvased below.

12.	On 15 April 2025 the Respondent filed a garnishee notice and on 21 May 2025 the National Court ordered BSP to garnish the account of the Second Appellant for the outstanding amount of judgment debt. 

13.	 On 26 May 2025 the Appellants filed an application for a stay of the garnishee notice until the appeal against the decision of 19 March 2025 had been finalized.

14.	 On 29 May 2025 the Appellants served the Notice of Appeal on the Respondent when both parties were appearing before a single judge of the Supreme Court to argue the stay application, that was adjourned to 4 June 2025. 

15.	 On 2 June 2025 the Respondent filed a Notice of Objection to Competency of Appeal.

16.	 On 4 June the Appellants’ application for a stay was heard by a single judge of the Supreme Court and it was granted on 6 June 2025.

17.	 On 25 August 2025 the Supreme Court heard the Respondents Notice of Objection to Competency of Appeal. 

18.	 On 3 September 2025 the Supreme Court delivered its decision dismissing the Respondent’s Notice of Objection to Competency of Appeal with costs.

19.	 On 5 September 2025 the Respondent filed this application seeking the appeal be summarily dismissed for a failure to serve the notice of appeal “without delay” and complaining that the Appellants lacked standing. 

20.	 On 28 September 2025 the matter came on for direction in relation to the Respondents application to summarily dismiss the appeal.

21.	 On 3 October 2025 the Respondent filed the Application book for this application. It did without reference to the Appellants. The shenanigans between the parties continued right up to the day of the hearing of the application and each side produced further affidavits and submissions after the filing of the Application Book.

22.	 On 2 December 2025 the application for summarily dismissal again came on for directions before a single judge of the Supreme Court. The Respondent’s lawyer did not attend this hearing.

23.	 The upshot of all this was that the hearing of this objection to competency did not run smoothly. The Appeal Books were almost completely useless, containing very little relevance to this application. Other affidavits filed late (it was argued) contained some relevant information. But the Court could not properly prepare and understand the arguments of the parties prior to the hearing. It is an understatement to say that the whole experience was suboptimal. 

24.	The Court is left with the unedifying spectacle of two lawyers bickering which does little to assist in resolving the matter. 

Grounds of Objection

25.	 The Respondent has two grounds in its application to summarily dismiss the appeal. The first is that the notice of appeal was not served in accordance with the Supreme Court rules. The second was that the Appellants do not have standing because they lack authority. The Respondent argued that nowhere in the material have the Appellants produced a resolution of their board authoring them to conduct the appeal. 

Ground 1 Service of Notice of appeal- Law

26.	 Order 7 Rule 13 of the Supreme Court Rules says “A copy of a notice of appeal shall be served without delay by or on behalf of the appellant on each party…” [emphasis added]. The Rules do not define “without delay”.  

27.	 Failure to comply with the Supreme Court Rules in relation to service may result in an appeal being dismissed (see for example Yema Gaiapa Developers Pty Ltd vs Hardy Lee (1995) SC484) (“Yema Gaipa Developments”). The Respondent provided case examples where this court had considered 7 to 14 days was sufficient in a town where the service was within the town where the registry was located (see Yema Gaipa Developments) and another case where a period of 48 days was not considered in breach of the rule (see Catherine Graham v Darryl Lee (2022) SC2287). 

28.	 The differences in these cases highlight that ultimately each case turns on its own facts as to why there has been a delay. 

Why was there a delay in service?
 
29.	 The Appellants filed an affidavit of Alfred Itox, a paralegal from the Appellants’ lawyers firm. He deposes to attempting service on the Respondent’s lawyers on 16 April, 17 April, 23 April, 28 April, 5 May, 13 May and 28 May 2025. He attended addresses that he found listed as the registered office of the Respondent’s lawyer and, when that was not successful, he found two other addresses given by the Respondent in documents filed in the proceedings. On each occasion Mr Itox attempted to serve the Respondent’s lawyer, the offices he attended were not operated. He complained of having considerable difficulty locating a couple of these offices and of speaking to people in the area trying to determine if he was at the right address. He also deposes to telephoning a mobile number on two occasions; on one occasion he was told to go to a different address and on another occasion no one answered. 

30.	 Service was finally affected when the Appellants’ lawyer attended a hearing with the Respondent’s lawyers on 29 May 2025.

31.	 The Appellants complained to the Court regarding the difficulty the Respondent’s lawyer had created in servicing them. Certainly, it is clear from documents the Respondent has filed that more than one address for the Respondent’s lawyers has been given.

32.	 The Respondent pointed out that the parties had been in litigation for several years and service had not previously been an issue. Further, they had a telephone number and email address which they were communicating with the Respondent’s lawyers, and the Appellants did not try emailing to sought out the issue of service. Both parties raise arguments which have some merit. 

33.	 We accept the testimony of Mr Itox. This affidavit provides an explanation for the delay in service and of how the Notice of Appeal came to be handed over at Court. Though 48 days delay in serving a Notice of Appeal is not in keeping with the efficient resolution of appeals that is contemplated in the Supreme Couret Rule, we accept that the Appellants endeavored to serve the documents on multiple occasions without success. As such we accept that their reasonable attempts at service could be characterized as being “without delay” within the meaning of Order 7 Rule 13 of the Supreme Court Rules. As such, this ground is dismissed. 

Lack of Standing

34.	 The Respondent also raises a complaint that the Appellants lack standing because they have not provided evidence of a resolution of their board, authorizing an appeal. To support this the Respondent has cited the District Development Authority Act 2014. Unfortunately for the Respondent this is not to the point. The procedural requirements for instituting an appeal are set out in the Supreme Court Rules not the District Development Authority Act. There is nothing in the Supreme Court Rules that requires an appellant corporation to evidence their board’s resolution to appeal. 

35.	 The Respondent further argued that it is “in the interest of justice” (s155(4) of the Constitution) to require companies to evidence their board resolutions to institute appeals. But where is the utility in adding an extra step to the process of appealing? And even if there was an advantage, should a three-judge bench make such a significant change to the procedural landscape on appeal? We do not think so. This ground has no legal basis and is dismissed.  
Criminal Complaint

36.	 Unfortunately, the dispute between the lawyers regarding service of the Notice of Appeal was not the only bickering engaged in it. The Respondent has made a criminal complaint against the Appellants’ lawyer which is relevant to the disposition of this appeal. 

37.	 On 5 December 2025 the Appellants served the Affidavit of Alfred Itox and their written submissions on the Respondent’s lawyer. Later that day they received an emailed letter from him saying that the Respondent advised of their intention to lodge a criminal complaint against the lawyer for the Appellants and Alfred Itox the paralegal (which they subsequently did).

38.	 In summary the complaints are that the Appellants’ lawyer was perverting the course of justice in: 

a.	Lodging an appeal without instructions from the relevant board;
b.	Drafting of the Affidavit in support and the Undertaking as to Damages filed on application for a stay of the garnishee order without instructions;
c.	Faking the signature of the First Appellant on the undertaking as to damages;
d.	Appearing in court on 29 May 2025 and relying on those documents;
e.	Faking the signature on the supplementary affidavit from the First Appellant; 
f.	Filing submissions on the Objection to Competency relying on these falsified documents;
g.	Preparing submissions for the Supreme Court on the Objection to Competency based on falsified documents;
h.	Falsifying the signature of Alfred Itox on his affidavit; and  
i.	The affidavit of Alfred Itox being “…made up and completely false”.

39.	 The letter finished with “…we are instructed to advise that our client request a reasonable explanation from you about the allegations stated above on or before 4:00pm on 08th December 2025” [emphasis in original].

40.	 The Appellants’ lawyer responded by letter dated 10 December 2025 with a rebuttal of these allegations which are not necessary to set out here. However, two sentences resonated. 

41.	 First the Appellant’s lawyer said: “Your client’s allegation as contained in your letter do not contain an iota or shred of evidence or credible evidence to substantiate any of the allegations raised but are merely wild accusations and assumption”. 

42.	 There is much force in this statement. The Respondent’s allegations against the Appellants’ lawyers are based on their opinion. In law, evidence of fraudulent signatures is provided by experts in handwriting or computer experts. Courts do not accept a lay person’s opinion as to such things. Accusations against a fellow practitioner of criminal misconduct in relation to material filed in a proceeding is a very serious matter. The Respondent has not produced (at least in the correspondence exhibited to affidavit in this proceeding) anything beyond conjecture.

43.	 Second, the Appellants’ lawyer further wrote: “All these documents are evidence before the Supreme Court and if you and your client’s have any issue as to the authenticity of these documents you can make the appropriate application to challenge them”. 

44.	 We agree with this sentiment. These matters could have been ventilated in court firstly by cross-examination of the deponent, Mr Alfred Itox and putting these accusations to him. And second by producing an affidavit from an expert regarding the allegations of fraudulent signature. The Respondent chose not to do this. 

45.	 The Appellants seek an order from this court to “Have the Respondent immediately withdraw its Criminal Complaint CRO No.2588/25”. 

46.	 It is not for this Court to direct people to withdraw a criminal complaint. People have an ability to make such complaints, and it would be, in this case, a misuse of the Supreme Court’s power to infringe on that. 

47.	While the allegations made by the Respondent against the Appellants as highlighted above are serious, they remain allegations. The parties will know the outcome at the conclusion of the ongoing criminal complaint.  As for this Court, as we have pointed out at [50] above, the Respondent elected not to cross-examine Mr Itox in relation to the veracity of his affidavit and did not produce an expert witness to verify the authenticity of the signature on the document. Thus, we have no reason to doubt Mr Itox’s account for the present purposes.  The stay issued by this Court in relation to the garnishee order will continue in place until further order. 

Comments on the conduct of this appeal to date

48.	 The Respondent has made several attempts to have this appeal summarily determined. Perhaps they believe that ultimately the Appellants’ appeal is bound to fail. If that is the case, the best way to demonstrate the paucity of an opponent’s case is to allow them to argue it. 

49.	This matter has now occupied the time a single judge of this Court on three occasions and a three-judge bench on two occasions and the substantive appeal has yet to be ventilated. To say that the Respondent has not proceeded expeditiously in the disposition of this appeal would be an understatement. For example, why was it necessary to file separate objection to competency and a summary disposal application? Surely the issue could be dealt with all together. It is noteworthy that the Respondent did not mention its earlier objection to competency application its submissions or affidavits. The only reference to them appeared in Appellants’ submission. 

50.	 The Supreme Court has a busy list. Currently it is constituted by judges of the National Court who each have their own National Court lists to manage. The Respondent’s fruitless quest to have the appeal dismissed prior to a full hearing has absorbed the Supreme Court’s time and delayed the hearing of other appeals. 

51.	 Lawyers in this country need to be mindful of their obligation to the Court to conduct litigation expeditiously. That duty is not inconsistent with their duty to their client. It is not in a client’s best interest to run every conceivable argument at every stage of the proceedings. A client is better served by their lawyers properly preparing their strongest case and running that, to the best of the lawyer’s ability. 

Conclusion

52.	 The stay order of this court dated 6 June 2025 will remain in place until the substantive appeal has been determined. The Respondent has agitated the issue of Appellants’ “fraud”. If they are right, they have selflessly delayed receiving their money to expose dishonest behavior. If they are wrong, they are hoisted by their own petard and have delayed receiving their money through their own ridiculous behaviour. 

ORDER

1.	Application for summary disposal filed 5 September 2025 is dismissed.
2.	The Respondent to pay the Appellants’ costs of this application on an indemnity basis.
_______________________________________________________________
Lawyers for the first and second appellant / applicant: Hebrew Babe Lawyers
Lawyers for the respondent: Raynett & Kaki Lawyers