Kangapun v Benson [2025] PGNC 484; N11627 (4 December 2025)

N11627

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS 353 OF 2025

LONDE PETER KANGAPUN
Plaintiff

V

MICHAEL BENSON
First Defendant

ROBIN GUMI
Second Defendant

KOREN LAKEN
Third Defendant

ELECTORAL COMMISSION
Fourth Defendant

WABAG: ELLIS J
3, 4 DECEMBER 2025

PRACTICE AND PROCEDURE – Plaintiff commencing second proceedings on the same day – decision in earlier proceedings binds plaintiff – res judicata, issue estoppel and Anshun estoppel considered

INJUNCTIONS – Notice of motion sought order to restrain elected councillor from voting in election of president – order sought presumed outcome of election petitions which were a matter for the District Court – balance of convenience and interests of justice considered – application refused

LOCAL-LEVEL GOVERNMENT ELECTIONS – Summons sought declarations and injunction in relation to Local-level Government election – contended ineligibility – matters for District Court to determine – proceedings dismissed

Cases cited
Blair v Curran [1939] HCA 34; 62 CLR 464
Kembo v Tulara (1997) N1668
Kuna v Eralia, unreported, 21 December 2004, Cannings J
Lu v Tipale (2010) N4006
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45

Counsel:
E. Kulai, for the plaintiff
Michael Benson, the first Defendant, in person
No appearance for second, third, and fourth defendants

JUDGMENT

1. ELLIS J: On 2 December 2025, the plaintiff filed an originating summons which was allocated the reference OS 352 of 2025. The first originating summons was heard and determined on that day. Later the same day, the plaintiff filed an originating summons to commence these proceedings, which were allocated the reference OS 353 of 2025.
   
2. The second originating summons was listed for hearing at 9am on 3 December 2025. Due to criminal proceedings involving a charge of wilful murder being listed for hearing at 9.30am, the hearing was completed shortly after 9.30am and it was not until 11.15am that the Court was able to indicate its decision and make orders. When delivering those orders, it was indicated that the reasons for making those orders would be delivered the next day. These are those reasons.
   
3. It is convenient to here note that the first and third defendants in these proceedings were also named as defendants in the first proceedings. The second defendant in these proceedings was not a party in the first proceedings. Further, it became apparent, at the outset of the hearing, that the first defendant was present in court.
   
4. Orders sought in the originating summons were as set out below:
   1. A declaration pursuant to section 5(a) and (b) of the Local Government Administration Act 1997 (as amended) (hereinafter “the Act) and section 14A(c) of the Act, that the First Defendant, the Second Defendant and the Third Defendant is (sic) ineligible to be elected or appointed as part of the Mai Rural Local Level Government.
      
   2. A declaration that the return of the First Defendant Mr Michael Benson as Ward Councillor for Sangurap Ward 27, Mai Rural Local Level Government is declared null and void.
      
   3. A declaration that the return of the Second Defendant Mr Robin Gumi as Ward Councillor for Letepus Ward 15, Mai Rural Local Level Government is declared null and void.
      
   4. A declaration that the return of the First Defendant Mr Koren Laken as Ward Councillor for Sopas Ward 15, Mai Rural Local Level Government is declared null and void.
      
   5. A declaration that the participation of the First, Second and Third Defendants in the election of the President of Mai Rural Local Level Government, would constitute a breach of the plaintiffs (sic) right to vote and stand for public office under section 50 of the Constitution.
      
   6. An injunction against the First, Second, Third Defendants and their servants and agents from taking part in the election of the President for Mai Rural Local Level Government on 2 December 2025 or on such date as the election is adjourned to.
      

7. Such further or Other Orders as the Court considers appropriate.

8. Costs.

5. A Notice of Motion was also filed, seeking the following orders:
   
   1. Pursuant to Order 1 Rule 7 of the National Court Rules 1983 as amended (herein after The Rules) and Order 4 Division 5 Rule 49(5)(e)(i) of the Rules that the requirement of service of this application and supporting affidavits be dispensed with.
      
   2. Pursuant to Order 12 Rule 1 of The Rules and Order 4 Division 5 Rule 49(5)(e)(ii) of The Rules and/or Section 57(4) of the Constitution, that pending the outcome of these proceedings, the following individuals be restrained from participating and voting in the election for the position of President of the Mai Rural Local Level Government which shall take place on 2 December 2025 or on such further dates as it may be adjourned to:
      1. Mr Michael Benson – Ward Councillor for Sangarup Ward 27, Mai Rural Local Level Government.
      2. Mr Robin Gumi – Ward Councillor for Sangarup Ward 3, Mai Rural Local Level Government.
      3. Mr Koren Laken – Ward Councillor for Sangarup Ward 15, Mai Rural Local Level Government.
         
   3. Pursuant to Order 4 Division 5 Rule 49(5)(e)(v) of the Rules, the matter return within 7 days of any orders made pursuant to this application for an inter-parties hearing.

4. Costs be in the cause of the proceedings.
5. Any other orders the Court deems fit.

6. Affidavits of the plaintiff and Ale Napale, both dated 2 December 2025, were filed in support of the Notice of Motion, along with an Undertaking as to Damages.
   
7. At the outset of the hearing, when the Court sought to identify the evidence upon which the plaintiff relied, it was indicated that the plaintiff wished to rely on a further affidavit of the plaintiff.
   

Evidence

8. The plaintiff’s first affidavit said he was a candidate and that the writ for the election had already been returned. He asserted that the first, second and third defendants were not eligible to be elected as they were public servants. It was also said that election petitions were being prepared. This affidavit suggested that those three defendants should not be permitted to participate in the election of the President of the Mai Rural Local-level Government.
   
9. In his second affidavit, the plaintiff set out what he maintains occurred on 2 December 2025 when the first, second and third defendants were due to be sworn in. It was said that was suspended for 24 hours. This affidavit also conceded that these were “consecutive proceedings”.
   
10. Ale Napale said in his affidavit that he had prepared an election petition and suggested that the first defendant was not eligible to be elected as he was a Primary School teacher.
    

Submissions for the plaintiff

11. Oral submissions referred to a decision (a copy of which was not provided to the Court) which was said to suggest that the matters to be considering when deciding whether to grant a request for an interim injunction were:
    

(1) whether there is a serious question to be tried,

(2) whether an undertaking as to damages has been filed,

(3) whether damages would be an adequate remedy,

(4) the balance of convenience, and

(5) the interests of justice.

12. It was submitted that there is a serious issue to be tried because the plaintiff contends that the first, second and third defendants are ineligible because they are government employees, and reference was made to s 5(a) of the Local Government Administration Act. An undertaking as to damages having been filed, it was said that damages would not be an appropriate remedy in this instance.
    
13. In relation to the balance of convenience, it was suggested that an order should be made to prevent the first, second and third defendants from taking part in the election of the president as that would allow that election to continue. Further, it was submitted that the interests of justice favoured making the orders sought. It was said that the National Court was the appropriate court because the plaintiff could not go to the District Court in relation to the election of the president of a local-level government.
    
14. By reference to the affidavit evidence of the plaintiff, it was indicated that there are 34 wards and that 3 wards had a failed election, leaving 31 ward councillors for the purpose of determining who should be the present, and that preventing the first, second and third defendants from voting would leave 28 votes.
    
15. Copies of three decisions were provided to the Court: Kembo v Tulara (1997) N1668 (Kembo); the unreported decision Kuna v Eralia that was decided on 21 December 2004 in Mount Hagen by Cannings J (Kuna); and Lu v Tipale (2010) N4006 (Lu).
    
16. Kembo was a case where an election petition had been filed by the defendant, disputing both the validity of the election of a ward member in a Local-level Government (LLG) area and the election of the president for that area. Restraining orders in relation to both those matters were obtained by the defendant from the District Court. In the National Court, the plaintiff successfully sought to have those orders set aside.
    
17. Injia J (as he then was) gave two reasons for his decision. First, removing the restraining order would not deprive the defendant of a remedy but continuing the order made by the District Court would leave the people in the plaintiff’s ward without representation while the election petition was considered. Accordingly, the balance of convenience favoured removal of the restraining order. Secondly, the defendant was not entitled to the order made in relation to the election of the president because that was not a matter that could be considered in an election petition, which only covers the election and return of councillors.
    
18. Kuna involved an application for judicial review. In that case a District Court order relating to the election of an LLG president was set aside. Reference was made to Kembo with the result that it was confirmed that the District Court does not have the power to make orders in relation to the election of an LLG president.
    
19. Lu was a case where the plaintiff obtained an ex parte interim injunction to restrain the defendant from holding himself out as present-elect, following an LLG election, there being a dispute in relation to the validity of his election. That decision also referred to Kembo and confirmed that any challenge to the election of an LLG president should be considered by the National Court and not the District Court.
    
20. However, unlike this case, Lu involved a consideration of the process whereby an LLG president was elected. Further, Lu involved not a question of whether an ex parte order should be made, but whether such an order should be set aside. It was decided, in that case, that the balance of convenience favoured maintaining the status quo until the determination of the substantive proceedings.
    
21. Those decisions do establish that any order in relation to the election of an LLG president should be made by the National Court, not the District Court. However, none of those decisions involved the National Court making an order to either prevent such an election from being held or to prevent a person from voting in such an election.
    

Submissions for the first defendant

22. As the first defendant was present, it would have been unfair not to provide him with an opportunity to address the Court. He said he is a ward councillor and the that administrative process of swearing in is still going on. He noted that he was not given an opportunity to respond to the first proceedings and claimed that he was not a public servant when he nominated and that he had proof that he could provide to support that claim.
    
23. The first defendant said he was currently only elected and not sworn in. His request was for the Court to permit the process to be completed, after which the plaintiff could proceed to challenge his election.
    

Relevant law

24. Courts take the view that the same issue cannot be raised more than once otherwise litigation would never be finalised. In everyday language, that principle could be summarised by saying “you cannot have two bites of a cherry”. There are three ways in which that principle can operate.
    
25. First, the Latin phrase res judicata is a term used to indicate that a cause of action (ie the basis for a claim) that has already been decided by a Court in proceedings between the same parties has been finalised and cannot be pursued for a second time in subsequent proceedings.
    
26. Secondly, the term issue estoppel is used to prevent a party from contradicting what was decided in earlier proceedings. The classic formulation of that principle is contained in the judgment of Dixon J (as he then was) in Blair v Curran [1939] HCA 34; 62 CLR 464 at 531:
    

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.

27. Thirdly, Anshun estoppel, so named because it is based on the decision in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, operates to provide a barrier to raising in subsequent proceedings what could and should have been raised in earlier proceedings.
    
28. In the Organic Law on National and Local-level Government Elections (the Organic Law), s 287(3) provides as follows:

A petition to dispute an election or return shall be filed at the District Court in the town in which are situated the headquarters of the Provincial Government of the Province which includes the area of the Local-level Government in respect of which the election was held.

Consideration

29. These proceedings were the second of two proceedings filed on the same day: 2 December 2025. In the first proceedings (OS 352 of 2025) the plaintiff sought an order that Robin Tole, Benson Michael and Koren Lako not be sworn in as councillors and not be permitted to act as councillors, based on a claim that they were not eligible to be councillors. In these proceedings (OS 353 of 2025) the plaintiff sought an order that Michael Benson, Robun Gumi and Koren Laken not be permitted to vote in the election of the president. Both proceedings relate to the Mai Rural LLG, the plaintiff is the same in both proceedings, but different lawyers were retained. Both proceedings are based on councillors’ contended ineligibility.
    
30. To the extent that the plaintiff’s cause of action in these proceedings was based on the contended ineligibility of Michael Benson, Robin Gumi and Koren Laken to be elected and sworn in as councillors for the Mai Rural LLG, that cause of action, as against the first defendant in these proceedings (Benson Michael or Michael Benson) and the third defendant in these proceedings (Koren Lako or Koren Kaken) was considered and determined on 2 December 2025 and cannot be raised for a second time. Secondly, that same issue of contended ineligibility is raised again in these proceedings. Thirdly, to the extent that these proceedings make a different claim, namely that the first and third defendants should not be permitted to vote in the election of the Mai Rural LLG, that is a request that could and should have been made in the earlier proceedings.
    
31. As a result, the principles known as res judicata, issue estoppel and Anshun estoppel each apply as between the plaintiff and the first defendant and as between the plaintiff and the third defendant. Accordingly, these proceedings must be dismissed as against the first and third defendants. It is not open to a plaintiff to proceed incrementally, seeking some orders against defendants and then, later the same day, seeking an additional order against the same defendants in separate proceedings after the first proceedings have been determined.
    
32. Since the plaintiff has not referred to or made out any case against the Electoral Commission, which was named as the fourth defendant, it only remains to consider the plaintiff’s claim against the second defendant, Robin Gumi. The Court was left to wonder why Robin Gumi was not included in the first proceedings.
    
33. Given that an Undertaking as to Damages has been filed and, since damages would not be an adequate remedy in this case, there are three issues requiring consideration. First, whether there is a serious issue to be tried, often stated as whether the plaintiff has shown a prima facie case. Secondly, where does the balance of convenience lie. Thirdly, what do the interests of justice suggest.
    
34. While it appears there is a serious issue to be tried, that is clearly an issue that is for the District Court to consider. It is not appropriate for this Court to either usurp the role conferred by statute on the District Court. The first four orders sought in the Originating Summons seek to have this Court do that. Nor is it appropriate for this Court to suggest what should be the outcome of any contested issue that is properly a matter for the District Court. To make an order that the second defendant (Robin Gumi) not be permitted to vote in the election of president of the Mai Rural LLG would be to imply that his election was not valid. Also, if the plaintiff has an arguable case against the second defendant, why was he not named as a defendant in the first proceedings? This issue does not provide strong support for an order.
    
35. Secondly, as to the balance of convenience, it is noted that one of the reasons given in Kembo was leaving people in a ward without representation. In this case, granting the primary order sought in the Notice of Motion would deprive the people in Sangarup Ward 3 in the Mai Rural LLG from having any contribution to the issue of who should hold the position of president. Further, it must be observed that, in Lu, the Court was of the view that it was preferable to maintain the status quo until the substantive issue is decided. In this case, the substantive issue is not for this Court to determine, but for the District Court. Further, if it be found that the second defendant was not eligible to be elected, then it would be open for the issue of who should be the president to be reconsidered although, with 30 other votes, it is likely that the outcome would not be any different even if election petition against the second defendant is successful. This issue also does not favour the plaintiff.
    
36. The third issue is whether the interests of justice favour making the orders sought. Courts sometimes refer to what is termed a presumption of regularity, meaning that decisions are considered valid unless and until they are set aside. It is also common for decisions to be based on maintaining the status quo until an issue is determined with finality. There are risks associated with making an interim order, especially without hearing from the other party, which can be avoided if no order is made until the substantive issue is determined. Further, it is undesirable to promote a situation where any unsuccessful candidate can disrupt the normal processes of local-level government prior to the outcome of a procedure provided by statute.
    
37. Having considered the three relevant issues, the Court is not satisfied that the orders sought in the Notice of Motion should be granted.
    
38. Turning to the Originating Summons, the first four orders all seek to have this Court decide an issue that is for the District Court to consider when and if any election petition is filed in relation to the eligibility and/or election of the second defendant. The fifth seeks a declaration that the plaintiff’s rights to vote and stand for public office would be breached if the first three defendants are permitted to vote in the election of the president but those rights were not breached as he was able to vote and stand for office. The sixth order duplicates the primary order sought in the Notice of Motion. As a result, the Originating Summons has no future utility.
    
39. The third order sought in the Notice of Motion was that the matter return to this Court for the purpose of a hearing between the parties but there is no basis for making such an order when, in the Originating Summons, the first four orders sought are matters for the District Court, there is no valid basis for the fifth order, and the sixth order is an order which this Court has determined should not be made.
    
40. As the Notice of Motion asked the Court to make “Any other orders the court deems fit”, the Court considers the preferable course is to finalise these proceedings and thereby leave the issues upon which these proceedings are based for the District Court to consider and determine.
    

Costs

41. Since the plaintiff has not been successful, since the first defendant was self-represented, and since the other defendants do not appear to have participated in these proceedings, the appropriate order in relation to costs is that each party is to bear their own costs of these proceedings.
    

Orders

42. For the reasons set out above, the orders of the Court will be as follows:
    
    1. The Notice of Motion and Originating Summons are dismissed.
    2. Each party is to bear their own costs of these proceedings.

3. Time is abridged so that these orders may be entered forthwith.

Orders Accordingly.

__________________________________________________________________
Lawyers for the plaintiff: Niuage Lawyers