Dan Salmon Rich Kakaraya as Executor of the Estate of Late Katherine Kakaraya Agiru v Jacob Popuna in his capacity as the Public Curator and Others

• Jurisdiction: Papua New Guinea
• Judge: David J,Hartshorn J,Toliken J
• Judgment Date: 01 March 2024
• Neutral Citation: SC2541
• Citation: SC2541, 2024-03-01
• Counsel: Belinda Poki with K Koroka, for the Appellant,David Levy, for the First Respondent,No appearance for the Second Respondent,Zara Waiin, for the Third Respondent
• Docket Number: SCA NO.21 OF 2022
• Hearing Date: 31 October 2023,01 March 2024
• Court: Supreme Court

SC2541

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO.21 OF 2022

Between:

Dan Salmon Rich Kakaraya as Executor of the Estate of Late Katherine Kakaraya Agiru

Appellant

v.

Jacob Popuna in his capacity as the Public Curator

First Respondent

and

Alex Tongayu as the Registrar of Companies

Second Respondent

and

The Independent State of Papua New Guinea

Third Respondent

Waigani: David J, Hartshorn J & Toliken J

2023: 31^st October

2024: 1^st March

PRACTICE & PROCEDURE — appeal by person not a party to National Court proceedings — a person whose interests are affected by or who is aggrieved by the order of the National Court and who might have been joined as a party to the National Court proceedings has a right of appeal — Supreme Court Act, s.17.

PRACTICE & PROCEDURE — dismissal of application to set aside for want of jurisdiction — National Court has jurisdiction to hear and determine application to set aside orders obtained ex parte — National Court Rules, Order 12 Rule 8.

Cases Cited:

Kitogara Holdings Pty Ltd v National Capital District Interim Commission & Ors (1988–89) PNGLR 346

Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828

Porgera Joint Venture v Joshua Siapu Yako (2008) SC916

Jeffery Turia v Gabriel Nelson (2008) SC949

Amet v Yama (2010) SC1064

Wavoi Guavi Timber Company Ltd v John Molu (2016) SC1514

Thomas Barry v Joel Luma & Ors (2017) SC1639

National Superannuation Fund Ltd v Yawenaik Holdings Ltd & Ors (2018) SC1709

Inugu v Maru (2019) SC1873

Agiru v Popuna (2022) N9422

Cragnolini v Leia (2023) SC2464

Counsel:

Belinda Poki with K Koroka, for the Appellant

David Levy, for the First Respondent

No appearance for the Second Respondent

Zara Waiin, for the Third Respondent

Warner Shand Lawyers: Lawyers for the Appellant

Livingstone Lawyers: Lawyers for the First Respondent

Solicitor-General: Lawyer for the Third Respondent

JUDGMENT

1^st March 2024

1. BY THE COURT: INTRODUCTION: This is the decision of the Court determining the substantive appeal commenced by Notice of Appeal filed on 15 March 2022. The appellant, Dan Salmon Rich Kakaraya (Appellant) appeals from the whole of the judgment of the National Court which was given on 4 February 2022 (the Primary Decision) at Waigani in proceedings commenced by originating summons, OS No.635 of 2017, In the matter of Kathy K. Agiru v Jacob Popuna as the Public Curator of Papua New Guinea and Ors (National Court Proceedings), when the National Court; refused an application moved pursuant to a notice of motion filed on 30 July 2021 seeking to set aside the orders of the National Court made on 7 July 2021 dismissing the National Court Proceedings obtained ex parte (Ex Parte Order) and affirmed the Ex Parte Order: Agiru v Popuna (2022) N9422. The appeal is opposed by the First and Third Respondents. The Second Respondent showed no interest so did not participate in the appeal.

2. The appeal lies without leave as the Primary Decision is a final judgment and involves questions of mixed fact and law.

BRIEF BACKGROUND

3. On 29 June 2017, the late Kathy K. Agiru (late Kathy) gave notice of her intention to make a claim under s.5 of the Claims By and Against The State Act.

4. On 3 August 2017, the late Kathy commenced the National Court Proceedings claiming several declarations and orders including a declaration that she never divorced her husband, the late Honourable Anderson Agiru prior to his demise on or about 28 April 2016 and for all intents and purposes remained the sole surviving widow of the late Honourable Anderson Agiru for purposes of s.84(1)(a) of the Wills, Probate and Administration Act, 1966.

5. The late Kathy was the Appellant's eldest sister.

6. The late Kathy passed away on 8 June 2020.

7. On 18 September 2020, the Appellant was granted probate of the estate of the late Kathy.

8. On 26 November 2020, the Appellant, as the Executor of the Estate of the late Kathy, filed an application to be substituted as the plaintiff (Application for Substitution) in the National Court Proceedings under Order 5 Rules 10(1) and 11(1)(d) of the National Court Rules.

9. The Application for Substitution was one of several applications that were pending hearing in the National Court Proceedings and they included:

1. The late Kathy's application for Contempt of Court filed on 9 August 2018;

2. The late Kathy's application for default judgment filed on 6 December 2018;

3. The First Respondent's application to dismiss the National Court Proceedings in their entirety for purportedly giving a deficient notice of intention to make a claim under s.5 of the Claims By and Against the State Act filed on 30 May 2019 (Application to Dismiss); and

4. The Application for Substitution.

10. On 7 July 2021, the Application to Dismiss was brought before the National Court and heard ex parte resulting in the dismissal of the National Court Proceedings in their entirety (Ex Parte Order).

11. On 30 July, 2021, the Appellant filed a notice of motion seeking to set aside the Ex Parte Order relying on Order 12 Rule 8(3)(a), (4) and (5) of the National Court Rules (Application to Set Aside Ex Parte Order). The Application to Set Aside Ex Parte Order was brought before the National Court for hearing.

12. On 4 February, 2022, the National Court, through the Primary Decision, dismissed the Application to Set Aside Ex Parte Order for want of jurisdiction and that it was an abuse of process.

GROUNDS OF APPEAL

13. There are four main grounds of appeal and we summarise them as follows:

1. The National Court erred in fact and law when it failed to properly exercise its discretion by not setting aside the Ex Parte Order;

2. The National Court erred in fact and law when it found that it lacked jurisdiction to hear the Application to Set Aside Ex Parte Order;

3. The National Court erred in fact and law when it failed to consider the weight of the evidence favouring the setting aside of the Ex Parte Orders; and

4. The National Court erred in fact and law when it did not accord the Appellant the right to be heard contrary to the principles of natural justice enshrined under s.59 of the Constitution.

ISSUE

14. From these grounds of appeal emerges one pertinent issue, the determination of which will decide the outcome of this appeal, and this is whether the National Court erred in fact and law when it found that it lacked jurisdiction to entertain the Application to Set Aside Ex Parte Order.

PRELIMINARY MATTER

15. At...