Most rulings a National Court judge makes before trial are discretionary: adjournments, discovery, striking out, extensions of time. This case explains how the Supreme Court treats an appeal against one of them.
Curtain Bros (PNG) Ltd v University of Papua New Guinea [2005] PGSC 35; SC788
Supreme Court, Waigani — Injia DCJ, Jalina and Sevua JJ, 31 May 2005. SCA 48 of 2001.
What happened
The University sued Curtain Bros. In the course of the proceedings the University served a notice for discovery, and Curtain Bros did not comply. On 9 May 2001 the National Court struck out the amended defence and entered summary judgment on liability against Curtain Bros for the failure to give discovery.
Curtain Bros appealed. Among its complaints was that the notice for discovery had itself been defective, a point not taken before the trial judge.
What was argued
Curtain Bros argued that shutting a defendant out of a trial for a discovery default was disproportionate and that the judge should not have entertained an application built on a defective notice. The University argued that discovery had plainly been ignored, that the judge had a discretion, and that an appellate court should not second-guess it.
What the Court decided
1. There is a strong presumption in favour of the correctness of a discretionary judgment. The Supreme Court will not interfere with a discretionary judgment on a procedural matter within the trial court’s jurisdiction except where the exercise of the discretion is clearly wrong.
2. Clear error may be shown by an identifiable error: acting on a wrong principle, giving weight to extraneous or irrelevant matters, failing to give weight or sufficient weight to relevant considerations, or mistaking the facts.
3. Even where no such error can be found, the ruling may be set aside if the result is so unreasonable or plainly unjust that the appellate court infers a failure to exercise the discretion properly.
4. Procedural objections not raised before the trial judge are not open on appeal.
The Court accepted that Curtain Bros had been at fault. But striking out the defence and entering judgment on liability was, in the circumstances, “so unreasonable or plainly unjust” that the Court inferred error. The appeal was allowed on those grounds, Curtain Bros was given 14 days to file its own notice for discovery, and each side bore its own costs. On the defective notice, the Court said counsel had a duty to raise the defect and a trial judge who noticed it should refuse the application, but the point could not be run for the first time on appeal.
Did it make new law?
Not in substance. The Court applied its own earlier statement of principle in The State and Davis v Barker [1977] PNGLR 386 and adopted the classic formulation from the High Court of Australia in Australian Coal and Shale Employees’ Union v The Commonwealth (1956) 94 CLR 621. No National Court decision was affirmed. What Curtain Bros did was restate the principle for procedural rulings specifically, and in language later benches found convenient to quote. Paragraph 6 of the judgment is now the standard citation.
Why it matters
It is not enough to show that the Supreme Court might have decided the procedural question differently. The appellant must identify the error in reasoning, or show a result that no reasonable exercise of the discretion could have produced.
The second limb is a real safety valve. Curtain Bros itself succeeded on it: no particular misstep was identified, but the outcome was out of all proportion to the default.
The case is also authority that a procedural defect must be raised before the trial judge. Silence at first instance is treated as acceptance. That rule applies to notices, forms and service, and it is frequently the reason an otherwise good point is not heard on appeal.
What it does not decide
Curtain Bros concerns the standard of review, not the underlying discretion. It does not say when a defence should be struck out for non-compliance with discovery, nor what sanctions are proportionate. It is also about appeals as of right or with leave under the Supreme Court Act; the separate threshold for obtaining leave to appeal an interlocutory ruling is set out in Oberia v Charlie.
Recent cases applying it
Curtain Bros is cited in eighteen Supreme Court judgments since 2019. Recent examples:
- Paiara v Pupaka [2026] PGSC 58; SC2900 — quoted paragraph 6 as the measure of the Court’s role on an appeal from a ruling under Order 12 rule 40 of the National Court Rules; the appeal succeeded on the separate ground that section 5 notice had not been given.
- Toraso v Iara [2025] PGSC 145; SC2893 — deciding a judicial review without hearing the parties on the substantive issues was an identifiable error in the exercise of discretion; appeal upheld.
- Noko Yuku Development Corporation Ltd v Hela Provincial Government [2024] PGSC 32; SC2563 — Barker and Curtain Bros applied to an appeal against the dissolution of interim injunctions.
Sources
- Curtain Bros (PNG) Ltd v University of Papua New Guinea [2005] PGSC 35; SC788 (Injia DCJ, Jalina and Sevua JJ, 31 May 2005)
- The State and Davis v Barker [1977] PGSC 17; [1977] PNGLR 386
- Supreme Court Act (Chapter 37) — ss 4, 6, 14
- Paiara v Pupaka [2026] PGSC 58; SC2900; Toraso v Iara [2025] PGSC 145; SC2893; Noko Yuku Development Corporation Ltd v Hela Provincial Government [2024] PGSC 32; SC2563
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.