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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA NO 51 OF 2025 (IECMS)
BETWEEN
WAPU RODNEY SONK
Appellant
AND
HON. JAMES MARAPE, PRIME MINISTER AND KUMUL PETROLEUM TRUSTEE
First Respondent
AND
GEREA AOPI as the purported Chairman of the Board of Kumul Petroleum Holdings Ltd and GEORGE GWARE, SUNDARAM SRINIVASAN and JACOB
ANGA as purported Directors of Kumul Petroleum Holdings Limited appointed in June 2025
Second Respondents
AND
DR BENEDICT YARU in his capacity as the Chairman of the Incumbent Board of Kumul Petroleum Holdings Limited
Third Respondent
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent
WAIGANI: MAKAIL J
18, 19 & 23 DECEMBER 2025
SUPREME COURT – Practice & Procedure – Application for stay – Order sought to stay decision of National Court and generally, the National Court proceedings – Dismissal of application for leave for judicial review for being an abuse of process – Interim stay order – Stay of decision of National Court and generally, the National Court proceedings pending determination of appeal – Supreme Court Act – Section 19
SUPREME COURT – Practice & Procedure – Notice of appeal – Grounds of appeal – Application for stay – Principles of stay – Grounds of appeal must demonstrate an arguable case – Submissions on arguable case must be grounds of appeal – Supreme Court Act – Sections 17 & 19 – Supreme Court Rules – Order 7, rule 9(b)
SUPREME COURT – Practice & Procedure – Application for interim injunction – Order sought to restrain steps to action appointment and/or revocation of appointment of Chairman and directors of Board – Prejudice to claims of parties – Proof of claims of parties – Supreme Court Act – Section 5(1)(b)
Facts
The appellant commenced multiple National Court proceedings in relation to the decision of the first respondent in several instrument to approve the appointment and in retrospect, revocation of the appointment of the Chairman and directors of Kumul Petroleum Holdings Limited (“KPHL”) under Section 10 of the Kumul Petroleum Authorisation Act (“KPA Act”). The appellant either withdrew or discontinued those proceedings. Subsequently, he commenced judicial review proceedings and sought leave to review the said decision under Order 16 of the National Court Rules. The first and fourth respondents filed an application to dismiss the application for leave for judicial review for being an abuse of process. The primary judge heard the application to dismiss, and application for leave for judicial review. In one ruling, the primary judge dismissed the application for leave for judicial review for being an abuse of process and for the appellant’s lack of locus standi. The appellant appealed against the dismissal of the application for leave for judicial review and among other grounds, alleged that the primary judge erred in hearing the application to dismiss the application for leave for judicial review for being an abuse of process together with the application for leave for judicial review. Pending the hearing of appeal, the appellant applied for an order to stay the decision of the National Court and judicial review proceedings and interim orders to restrain the first, second and fourth respondents from taking steps to give effect to the decision of the first respondent pursuant to Section 5(1)(b) and Section 19 of the Supreme Court Act.
Held:
Cases cited
Gary McHardy v. Prosec Security & Communication Limited [2000] PNGLR 275
Peter Makeng v Timbers (PNG) Ltd (2008) N3317
Somare v Manek (2011) SC1118
Pruaitch v Manek (2019) SC1884
Rex Kiponge v Hon Walter Schnaubelt &, NEC & The State (2023) SC2360
Counsel
Mr George Lau, for appellant
Mr Nathan Pilamb, for first & fourth respondents
Ms Sharon Peri, for second respondents
Mr Rex Mannrai, for third respondent
RULING
1. MAKAIL J: Pursuant to an amended application for stay and interim injunction filed on 15th December 2025 the appellant applies for orders under Section 5(1)(b) and Section 19 of the Supreme Court Act to:
1.1. stay the decision of the National Court dated 20th October 2025 at Waigani which dismissed the proceedings OS (JR) No 110 of 2025 between the appellant and respondents as being an abuse of process and also the entire proceedings therein until the determination of the appeal.
1.2. stay the “purported” decision of the first respondent as Kumul Petroleum Trustee in the instruments of appointment dated 10th June 2025 and 26th June 2025 whereby Mr Gerea Aopi was “purportedly” appointed as the new Chairman and Messrs George Gware, Sundaram Srinivasan and Jacob Anga were “purportedly” appointed to the Board of Kumul Petroleum Holdings Limited (“KPHL”) respectively until further orders of the Court.
1.3. stay the “purported” decision of the first respondent as the Kumul Petroleum Trustee in the instruments of appointment dated 10th June 2025 and 26th June 2025 whereby Mr Peter Pipi, Professor Benedict Yaru, Dr Ila Temu, Paul Nerau and Hari Karyuliatro were either retired or removed as directors of KPHL, or “purportedly” assumed to have been automatically retired or removed by operation of law or by law which the first respondent assumed to be self-executing until further orders of the Court.
1.4. restrain the first and second respondents, their agents or servants from taking any steps to enforce or attempt to enforce the “purported” decision of the Kumul Petroleum Trustee in the instruments dated 10th June 2025 and 26th June 2025 respectively until further orders of the Court.
1.5. restrain the first and second respondents from taking any action or making any decision on the retirement, suspension or removal of the directors of the Board of KPHL under the Chairmanship of the third respondent.
2. It should be stated at the outset that the appellant’s use of the word “purported” or “purportedly” to question the legitimacy of the decision of the first respondent contained in the instruments of appointment dated 10th June 2025 and 26th June 2025 is incorrect because it must be recognised that the decision is legitimate until proven to the contrary in a Court of law.
Brief Facts
3. By an instrument signed by the first respondent in his capacity as Kumul Petroleum Trustee on 10th June 2025 did not re-appointed Professor Benedict Yaru as Chairman and did not re-appoint Dr Ila Tenu, Paul Nerau, Hari Karyuliarto and Peterson Pipi as directors and appointed Mr Aopi as Chairman of the Board of KPHL.
4. By three separate instruments signed by the first respondent in his capacity as Kumul Petroleum Trustee on 26th June 2025 did not re-appointed Professor Benedict Yaru as Chairman and did not re-appoint Dr Ila Tenu, Paul Nerau, Hari Karyuliarto and Peterson Pipi as directors and appointed Messrs George Gware, Jacob Anga and Sundaram Srinivasan as directors of the Board of KPHL.
5. The instrument of 10th June 2025 and instrument of 26th June 2025 show that Professor Benedict Yaru and Dr Ila Temu were ineligible for re-appointment under Section 10(6)(a)(iii) of the Kumul Petroleum Authorisation Act 2015 (“KPA Act”) because they had served for 9 years while Paul Nerau reached the compulsory retirement age of 72 under Section 10(6)(a)(iv) of the KPA Act, Hari Kariyuliarto was not a fit and proper person under Section 10(6)(a)(vi) of the KPA Act and Peterson Pipi’s term had expired on 3rd March 2023.
6. Following the signing of these instruments, several legal proceedings were commenced by either Professor Bernard Yaru, Peterson Pipi or the appellant to question the lawfulness of their non-reappointment, notice that the company records of KPHL at the Office of Registrar of Companies had been changed on 4th September 2025 and suspension of the appellant as Managing Director of KPHL with full pay by the Board of KPHL chaired by Mr Aopi on 12th September 2025 (appellant received the notice of suspension on 18th September 2025) and a Mr Luke Liria was appointed in his place.
7. Relevantly, on 25th September 2025 the appellant commenced the proceedings OS (JR) No 110 of 2025 to seek leave to review the decision of the first respondent
contained in the instruments referred to at [2] and [3] (supra). On 30th September 2025 the first and fourth respondents filed an application seeking dismissal of the proceedings on the basis of it being
an abuse of process. On 7th and 8th October 2025, the National Court heard parties on the application to dismiss the application for leave for judicial review as being
an abuse of process, and also the application for leave for judicial review and reserved its ruling.
Reasons for Dismissal of Proceeding
8. On 20th October 2025 the National Court ordered that the application for leave for judicial review is dismissed as an abuse of process. In summary, the dismissal of the proceedings was based on the following findings:
8.1. there was multiplicity of proceedings commenced by either the appellant or others but indirectly connected to the appellant’s interests in relation to the decision contained in the instruments referred to at [3] and [4] (supra); and
8.2. the appellant lacked locus standi.
9. It is also worth mentioning that after the within the appeal was filed on 19th November 2025 the appellant was terminated as Managing Director of KPHL by the second respondent on 28th November 2025. The letter of termination of employment was served on the appellant on 1st December 2025. At the hearing of the within application, Mr Lau of counsel for the appellant indicated that the appellant has not given instruction in relation to whether he will take up his termination of employment by legal proceedings.
Principles of Stay
10. The counsel for the parties canvassed in their respective submissions the principles of stay in the often-cited case of Gary McHardy v. Prosec Security & Communication Limited [2000] PNGLR 275 and it is not necessary to repeat them herein save to apply them to the facts of this case.
Whether leave to appeal is required and whether it has been obtained
11. There is no contest between the parties that leave to appeal is not necessary because the appeal is against the final judgment of the National Court which dismissed the application for leave for judicial review for being an abuse of process.
Whether there has been any delay in making the application.
12. I note that the judgment of the National Court under challenged was delivered on 20th October 2025. The appeal by Notice of Motion was filed on 19th November 2025. The original application for stay and interim injunction was filed on 2nd December 2025, and an amended one was filed on 15th December 2025. From 20th October 2025 to 2nd December 2025 when the original application was filed is a period of one month and 12 days. This is the period of delay in filing the application. The appellant did not offer any explanation for the delay.
Preliminary assessment about whether the Appellant has an arguable case on the proposed appeal
13. I have heard all counsel and read their respective written submissions in relation to the question of an arguable case and adopt the outline of the main issues presented by Ms Peri of counsel for the second respondents:
(a) Ground 2.1 of Notice of Appeal – Conflict of interest in legal representation.
(b) Ground 2.2 and Ground 2.3 – Jurisdiction error in hearing sequence of the application to dismiss the application for leave for judicial review for being an abuse of process and application for leave for judicial review.
(c) Ground 2.4 – Error in finding an abuse of process.
(d) Ground 2.5 – Actual or apprehended bias against primary judge.
(e) Ground 2.6 – Premature determination of locus standi of appellant.
14. There is a further issue which the appellant brought up. It is in relation to the respondents’ failure to comply with Section 10 of the KPA Act.
Failure to comply with Section 10 of the KPA Act.
15. First, I address the appellant’s submissions in relation to the respondent’s failure to comply with Section 10 of the KPA Act. Lengthy submissions were made by counsel for the appellant and supported by counsel for the third respondent that the process of appointment and in retrospect, revocation of appointment of Chairman and directors of the Board of KPHL was not complied with by the first respondent under Section 10 of the KPA Act:
(a) in the case of the Chairman, it is the process under Section 10(11) of the KPA Act that the Board shall identify among the directors and notify the first respondent in his capacity as the Kumul Petroleum Trustee to select the Chairman among the directors, and the Board shall appoint that person as the Chairman. In this case, this process was not complied with by the first respondent or a decision was made by the Board of KPHL to appoint Mr Gerea Aopi to be the Chairman.
(b) in the case of the directors, it is the process under Section 10(8) of the KPA Act that a decision must be made by the Board that a vacancy exists for a director to be appointed and conveyed to the first respondent in his capacity as the Kumul Petroleum Trustee for approval. In this case, this process was not complied with by the first respondent or a decision was made by the Board of KPHL to appoint Mr Gerea Aopi to be the Chairman.
(c) In addition, in the case of the directors, Section 10(13) of the KPA Act states that not more than three directors shall be replaced at one time. In this case, more than three directors (four) were replaced, they been, Dr Ila Temu, Paul Nerau, Hari Karyuliarto and Peterson Pipi.
16. The first and fourth respondents’ counsel whose submissions were endorsed by the second respondent’s counsel were that the grounds of appeal do not plead how the primary judge misconstrued and misapplied Section 10 of the KPA Act in relation to the process of appointment and in retrospect, revocation of appointment of the Chairman and directors of the Board of KPHL as contended by the appellant. The reason being that the proceedings in the National Court did not get past the leave stage for parties to engage in the discussion of Section 10 of the KPA Act. Given this, it is not open to the appellant to argue that the first respondent’s failure to comply with the process of appointment and in retrospect, revocation of appointment of Chairman and directors of the Board of KPHL give raise to an arguable case.
17. I refer to the grounds of appeal in the Notice of Motion constituting the appeal filed on 19th November 2025. There are six grounds of appeal identified at Ground 2.1, Ground 2.2, Ground 2.3, Ground 2.4 (a) to (c)(i) – (viii), Ground 2.5, and Ground 2.6. These are set out below:
“2.1 The Primary Judge erred in law and fact in dealing with the Notice of Motion filed on 30th September, 2025 at the lower court by entertaining an application that was filed and pursued by the First Respondent through his lawyers who were disguised as lawyers acting for the Fourth Respondents(sic) when they acted for both the First and Fourth Respondents contrary to the intentions of Section 8 of the Claims By and Against the State Act and Order 16 Rule 3(2) and (3) of the National Court Rules. The primary proceeding was filed to protect the interest of the State as a Beneficiary of the Kumul Petroleum Shares from an unlawful and improper decision of the Trustee. In that regard, it is highly improper for one and the same lawyer or law firm to represent both the Trustee and the Beneficiary in issues where the Trustee was alleged to have improperly performed his functions in contravention of the Kumul Petroleum Holdings Limited Authorisation Act 2015 (KPHLA Act 2015).
2.2 The Primary Judge erred in law and in fact in first hearing and determining the First and Fourth Respondents’ Notice of Motion which raised substantive issues in the lower Court when the substantive Judicial Review proceedings was not granted leave as yet. Without Leave being granted, the Primary Judge lacked jurisdiction to hear an application to dismiss the Judicial Review proceeding, because there was no case to be heard, dealt with or ruled upon until after leave is granted.
2.3 The Primary Judge erred in law and in fact when she concluded that she had jurisdiction to hear both the application for dismissal and the application for leave to review, at the same time. The Application for Leave should have been heard first and by itself, and if leave was granted, the application for dismissal could be heard thereafter. In her judgment, the Primary Judge addressed the grounds or requirements for leave application without making a ruling on the Appellant’s application for leave.
2.4 The Primary Judge erred in law and fact in exercising its discretion to dismiss the entire National Court proceedings for abuse for the following reasons:”
(a) Her Honour did not consider that the presumption of abuse based on multiplicity of proceedings does not arise in the case which is subject of this appeal or, if it did, was rebutted by demonstrating that the earlier proceedings were abandoned or withdrawn for procedural reasons only and with leave of court; and
(b) The authorities relied upon by the First and Fourth Respondents and applied by the lower court are not applicable or are distinguishable from the National Court proceedings which is the subject of this appeal.
(c) Her Honour erred in law and fact in finding that:
(i) The litigation history shows that the current proceeding represents a culmination of a series of calculated actions by the Appellant using different modes of proceedings amounting to an attempt at abusing and circumventing court processes and rulings of the National and Supreme Courts. Dr Yaru and members of the former board commenced the process. Mr Sonk picked up the baton and ran with it. Her Honour failed to distinguish the standing positions of the Appellant and Dr Yaru in that the latter was the Board Chairman of a functioning Board of Kumul Petroleum Holdings Limited (KPHL) and the Appellant was the substantive Managing Director and a current member of the Board of Director of KPHL pursuant to Section 10(3) of the KPHLA Act 2015.
(ii) The abuse was evidenced by the nature of the Court proceedings filed, the naming of the parties, the interim and substantive reliefs sought, the evidence filed in support of the various proceedings and the manner in which the proceedings were conducted. Her Honour failed to distinguish each of the proceedings and circumstances under which these different proceedings were filed.
(iii) The applicants, which included Mr Sonk in four of the proceedings, had a common agenda by way of multiple finings involving similar parties filed in circumstances of urgency seeking similar reliefs, which were then either dismissed, withdrawn or discontinued.
(iv) The common thread was and continues to be a challenge to the decisions by the Prime Minster leading to a reinstatement of the former board, and that there is no better evidence of this than a reading, as a whole, of the proceedings as contained in the four volumes of documents in evidence annexed to Mr Yaga’s affidavit, that evidence, filed in support of the earlier proceedings presenting as a legal Ground Hog Day where the same thing happens over and over, with the same grievance and complaint, the same evidence repetitively played out, involving the same parties, with an occasional variation or twist to meet an emergent circumstance, the genesis being the Prime Minister’s decisions and the consequential tussle for ascendency between the two boards.
(v) It was an abuse heightened by filing matters as urgent only to then discontinue or withdraw shortly thereafter.
(vi) It was an abuse perpetuated in ignorance of the orders of Bre J with respect to Dr Yaru’s status, a named Third Defendant in these proceedings where the Plaintiff makes no claim and seeks no remedies against him.
(vii) There was (sic) no grounds advanced in support of the relief sought by appellant at paragraph 11(b) of his Statement to challenge his suspension. The Trial Judge failed to properly look at the ground of review and reliefs pleaded in the Statement which particularised the breach of the KPHLA Act 2015 and if the decision to appoint the Second Respondent are quashed the suspension of the Appellant would be null and void. The Appellant sought reliefs in relation to his suspension at paragraph 11(b) and the Statement had to be looked in totality and not a piecemeal basis.
2.5 The Trial Judge erred in law and in fact when she allowed her emotion and prejudice to influence her ruling where she clearly set out in her ruling, circumstances in relation to the Appellant’s various requests for an urgent hearing of the National Court proceedings, which were irrelevant in deciding the real issues before the court which amounted to miscarriage of justice.
2.6 The Trial Judge erred in law and fact in dealing with issues of locus standi and sufficient interest in the proceedings which are grounds of requirements for leave or for substantive Judicial Review proceedings and they should not have been entertained or addressed in an application seeking to dismiss proceeding and filed and moved before leave for Judicial Review is heard or granted. These are ground (sic) which could have been rightfully raised in response to a leave application for Judicial Review or could be raised at the substantive hearing.”
18. It is important I refer to Section 17 of the Supreme Court Act. According to Section 17, a person who desires to appeal shall give notice of appeal within 40 days after the date of judgment of the National Court or within such further time as allowed by a Judge made to him within that period of 40 days. In terms of the grounds of appeal, Order 7, rule 9(c) of the Supreme Court Rules states that “The notice of appeal shall state briefly but specifically the grounds relied upon in support of the appeal.” It follows that an appellant shall rely on the grounds set forth/pleaded in the notice of appeal.
19. In this case, I have carefully read the grounds of appeal. I uphold the first and fourth respondents’ submissions.
(a) Ground 2.1 attacks the legal representation of the first and fourth respondents in the judicial review proceedings OS (JR) No 110 of 2025. The appellant’s complaint here is that it is not open to the first and fourth respondents to retain the same legal representative in the judicial review proceedings because the first respondent is a trustee of the fourth respondent’s interest in KPHL and unlawful and improper that they retain one legal representative. However, I note it is not alleged anywhere in this ground that the lawyers for the first and fourth respondents have a conflict of interest in acting for both parties. Be that as it may, I am satisfied that none of the issues raised by the appellant in the submissions at [13(a)-(e)] (supra) are pleaded in this ground of appeal. Thus, it is not open to the appellant to rely on them to argue that they demonstrate that there is an arguable case in this appeal. This submission is disregarded.
(b) Ground 2.2 attacks the decision of the primary judge to allow the first and fourth respondents’ application to dismiss the application for leave for judicial review for being an abuse of process to be hearing together with the application for leave for judicial review. The complaint here is that unless leave is granted to the appellant to apply for judicial review, the primary judge lacked jurisdiction to hear the first and fourth respondents’ application to dismiss the application for leave for judicial review for being an abuse of process. Again, I am satisfied that none of the issues raised by the appellant in the submissions at [13 (a)-(e)] (supra) are pleaded in this ground of appeal. Thus, it is not open to the appellant to rely on them to argue that they demonstrate that there is an arguable case in this appeal. This submission is disregarded.
(c) Ground 2.3 is a repetition of Ground 2.2 because it attacks the decision of the primary judge to allow the first and fourth respondents’ application to dismiss the application for judicial review for being an abuse of process to be heard together with the application for leave for judicial review. The complaint here is because of conducting a simultaneous hearing of the applications, the primary judge ended up giving a ruling covering not only the application to dismiss the application for leave for judicial review as being an abuse of process but addressed the requirements for leave for judicial review without ruling whether the appellant has made out a case for grant of leave to apply for judicial review. Again, I am satisfied that none of the issues raised by the appellant in the submissions at [13 (a)-(e)] (supra) are pleaded in this ground of appeal. Thus, it is not open to the appellant to rely on them to argue that they demonstrate that there is an arguable case in this appeal. This submission is disregarded.
(d) Ground 2.4 (a), (b), (c)(i)-(viii) attack the primary judge’s finding that the commencement of multiplicity of proceedings by either the appellant or others constituted an abuse of process. It was one of the reasons for the primary judge to dismiss the application for leave for judicial review. I should add that in Ground 2.3(c)(i), the appellant did plead and refer to Section 10(3) of the KPA Act. However, it was to reinforce the allegation in the entire Ground 2.4 that the earlier proceedings were commenced raising the same or common issue but were either dismissed, withdrawn or discontinued for want of proper mode. Thus, the judicial review proceedings was not an abuse of process. Again, I am satisfied that none of the issues raised by the appellant in the submissions at [13 (a)-(e)] (supra) are pleaded in this ground of appeal. Thus, it is not open to the appellant to rely on them to argue that they demonstrate that there is an arguable case in this appeal. This submission is disregarded.
(e) The complaint in Ground 2.5 is in relation to the primary judge’s criticism of the appellant’s repeated requests for an urgent hearing of the application for leave for judicial which may have influenced her decision to dismiss the application for leave for judicial review for being an abuse of process. It is alleged that justice has miscarried. Again, I am satisfied that none of the issues raised by the appellant in the submissions at [13 (a)-(e)] (supra) are pleaded in this ground of appeal. Thus, it is not open to the appellant to rely on them to argue that they demonstrate that there is an arguable case in this appeal. This submission is disregarded.
(f) Ground 2.6 attacks the primary judge’s finding that the appellant lacked locus standi. The complaint here is that the question of locus standi is one of the requirements for leave for judicial review and should been argued and decided separately from the application to dismiss the application for leave for judicial for being as abuse of process. Again, I am satisfied that none of the issues raised by the appellant in the submissions at [13 (a)-(e)] (supra) are pleaded in this ground of appeal. Thus, it is not open to the appellant to rely on them to argue that they demonstrate that there is an arguable case in this appeal. This submission is disregarded.
Grounds of appeal – Conflict of interest in legal representation
20. The gist of the submissions of Mr Lau of counsel for the appellant is that it was not open to the first and fourth respondents to have same legal representation in the National Court proceedings because there is a conflict of interest between the first respondent as trustee of the fourth respondent and the fourth respondent as representative of the interest of the people of Papua New Guinea in KPHL. According to Mr Lau, the intention of the Legislators was to have the benefits of the State and people of Papua New Guinea in KPHL protected from political interference by Section 8 and Section 10 of the KPA Act where these provisions do not allow the first respondent as the Trustee of KPHL to unilaterally appoint and/or revoke appointments of the Chairman and directors of the Board of KPHL. For these reasons, it was unlawful and improper for these respondents to retain one legal representative in the judicial review proceedings in the National Court. Be that as it may, from my reading of the primary judge’s judgment under challenged, I am satisfied that the appellant did not object to the legal representation of the first and fourth respondents on the grounds taken up before me at the hearing in the National Court. Thus, his failure to object does not advance his cause to the point that this ground of appeal raises an arguable case.
Grounds of appeal – Jurisdiction error in sequence of hearing of the application to dismiss the application for leave for judicial review for being an abuse of process and application for leave for judicial review
21. Mr Lau of counsel for the appellant makes a strong submission that it was not open to the primary judge to hear the application to dismiss the application for leave for judicial review for being an abuse of process together with the application for leave for judicial review. This is because without leave, there was no application for judicial review before the primary judge, and the primary judge lacked jurisdiction to hear and rule on the application to dismiss the application for leave for judicial review. Mr Lau relies on the observation by Injia DCJ (as he then was) in Peter Makeng v Timbers (PNG) Ltd (2008) N3317 but in the context of an application for interim injunction to support his submission:
“There is no provision in O 16 which gives the Court jurisdiction to grant a stay or interim injunctive relief before leave for judicial review is granted. Order 16 r 3(8) is the only applicable provision on grant of stay or other interim relief. There is no contest amongst the parties as to the meaning of O 16 r 3 (8). On the contrary, Order 16 r 3 (8) gives the Court jurisdiction to grant a stay or interim relief only after leave for judicial review has been granted.”
22. This view appears to have the endorsement of the Supreme Court in Kalinoe v Paul Paraka Lawyers (2014) SC1388 at [27] where it made this observation:
“Carefully noting the foregoing discussions, two things are immediately clear to us. First, prior to the grant of lave for judicial review or at the leave stage, no party can ask for and obtain any other relief. Secondly, following on from that, it is clear that, one cannot ask and obtain a substantive relief at the leave stage. That would come after or with the hearing and determination of substantive review.”
23. On the other hand, it is equally arguable that given that it is a discretionary ruling, and adopting the submissions of Mr Pilamb for the first and fourth respondents:
“1) it was well within the Court’s inherent jurisdiction to consider the dismissal application first; and
24. It is also arguable as Mr Pilamb argues, “all parties made submissions (oral and written) in relation to the dismissal application and the leave application at the hearing on 7 and 8 October 2025.” In other words, the appellant’s submissions that the hearing of the application to dismiss the application for leave for judicial review for being an abuse of process before the application for leave for judicial review is incorrect because both applications were heard by the primary judge and most importantly, all parties were heard on both applications and the primary judge gave a ruling upholding the application to dismiss the application for leave for judicial review for being an abuse of process.
25. Secondly, it is arguable as Ms Peri submits “The National Court possesses an inherent jurisdiction to control its own processes and dismiss proceedings that are frivolous, vexatious, or an abuse of process at any stage, including before a grant of leave.” This is to prevent abuse of the Court’s process by litigants: Somare v Manek (2011) SC1118 and Pruaitch v Manek (2019) SC1884.
26. There is no dispute that multiple proceedings were commenced by either the appellant or others to seek redress from the National Court in relation to the appointment and/or revocation of appointment of Chairman and directors of the Board of KPHL before the judicial review proceedings giving rise to the judgment under challenged. The primary judge held that the multiplicity of proceedings constituted an abuse of process. It was one of the reasons for dismissing the application for leave for judicial review. Without descending into the merits of the appeal, it is important to note what the primary judge said at [142] to [144] of the judgment:
“142. Litigation is not uncontrolled open competition. Multiplicity of proceedings and/or litigation conducted in a piecemeal manner should be avoided and proactively discouraged by the Court, absent demonstrated good reason (Telikom (PNG) Ltd v Independent Consumer and Competition Commission (supra)).
143. No good reason appears on the evidence here.
144. Litigants must choose their mode of proceeding wisely. This is not only because litigation carries risks, financial and reputational, but because it draws other parties into its orbit, at cost and potential prejudice to them. It is also a waste of judicial time, drawing upon the Court resources, which in a case of the current proceeding has involved just short of nine (9) hours of hearing time accommodated at short notice ahead of other listed matters, That overview excludes the judicial time required in considering the extensive material relied upon which related to the earlier proceedings.”
27. While the appellant has a right to complain about the hearing sequence of the applications, he is met with the counter argument that the primary judge’s exercise of discretion to dismiss the application for leave for judicial review was well founded, that it is to control and prevent abuse of the Court process by litigants and importantly, arrived at after observing and according to the parties, natural justice, that is parties were heard on both applications. These factors demonstrates that this ground is unlikely to succeed at the substantive appeal.
Grounds of appeal – Error in finding an abuse of process
28. I repeat the reasons given under the ground on jurisdiction error in hearing sequence at [21] to [27] (supra).
Grounds of appeal – Actual or apprehended bias against the primary judge
29. As observed at [19(e)] (supra), the complaint in Ground 2.5 is in relation to the primary judge’s criticism of the appellant’s repeated requests for an urgent hearing of the application for leave for judicial which may have influenced her decision to dismiss the application for leave for judicial review for being an abuse of process. It is alleged that justice has miscarried.
30. Similarly, while the appellant has a right to complain about the primary judge’s criticism of his repeated requests for an urgent hearing, he is met with the counter argument that the primary judge’s criticism was well founded, that the observations at [145] to [161] of the primary judge’s judgment shows that the appellant has had multiple opportunities to bring his grievance to Court in the earlier National Court proceedings and was given a hearing but only to either withdraw or discontinue them and then makes repeated requests for an urgent hearing and be given priority over other pending cases before the primary judge.
31. As Ms Peri of counsel for the second respondents submits, “The Judge’s comments about urgent hearing requests (paras 145-156 of the Decision) were not emotional but a factual critique of case conduct. She found the claimed urgency was often unwarranted and wasted court resources. This conduct was directly relevant to whether the litigation process was being abused. This pattern of filing urgent applications only to discontinue them was part of the abusive pattern.” In my view, these factors outlined at [30] and [31] (supra) demonstrate that this ground is unlikely to succeed at the substantive appeal.
Grounds of appeal – Error in premature determination of locus standi of Appellant
32. As observed at [19(f)] (supra), the complaint in Ground 2.6 is that the question of locus standi is one of the requirements for leave for judicial review and should been argued and decided separately from the application to dismiss the application for leave for judicial for being as abuse of process. In other words, it was prematurely determined. Further and similarly, while it is noted that according to Order 16, rule 3(5) of the National Court Rules (“NCR”) locus standi or sufficient interest as is referred to in that rule, is one of the requirements which an applicant must satisfy in an application for leave for judicial review, the appellant is met with the counter argument that locus standi is a threshold issue because it goes to the Court’s jurisdiction and was well within the discretion of the primary judge to consider and rule on it without giving consideration to the further requirements of delay, exhaustion of alternative remedies and arguable case.
33. As Ms Peri further submits “The Judge provided standing as an additional, independent reasons for dismissal (paras 178-213 of the Decision), finding the appellant “lacks locus standi” (para 197 of the Decision).” In my view, these factors outlined at [32] and [33] (supra) demonstrate that this ground is unlikely to succeed at the substantive appeal.
Whether on the face of the record of the judgment there may be indicated an apparent error of law or procedure
34. For the reasons given at [13] to [31] (supra), I am not satisfied that the appellant has demonstrated that on the face of the record of the judgment under challenged, there is an apparent error of law or procedure to warrant grant of a stay order of the said judgment and generally, the National Court proceedings.
Possible hardship, inconvenience or prejudice to either party
35. At paragraph 65 of his written submissions, Mr Lau outlines the reasons why the appellant has suffered hardship, inconvenience or prejudice as opposed to the respondents. These are summarised as follows:
(a) on 28th November 2025 the second respondents decided to terminate the appellant as the Managing Directors of KPHL.
(b) the second respondents were served with the notice of appeal for the within appeal on 21st November 2025. They responded by filing and serving a notice of appearance on 27th November 2025. Yet they went ahead to terminate the appellant while the decision of the first respondent to appoint them was pending
hearing of the appeal and subjudice.
(c) further and by reasons of the above matters, the conduct of the second respondents constituted contempt of court.
(d) despite being suspended as the Managing Director of KPHL, the appellant remains a director of the Board of KPHL.
(e) the second respondents did not give reasons for suspending the appellant.
(f) the second respondents illegally changed the IPA records to have the appellant removed as director of Board of KPHL contrary to law, good governance and commercial interests.
(g) at paragraphs 74 to 75 of his affidavit sworn on 1st December 2025 and filed on 2nd December 2025 (Document No. 10), the appellant has suffered irreparable harm to his good name, professional standing and business relationship.
(h) further, that the appointment of an acting Managing Director has caused significant instability and confusion in the leadership of a critical state-owned enterprise, which is prejudicial to the national interests.
36. Deciding the question of possible hardship, inconvenience or prejudice to either party is a balancing act because the Court will weigh up the interests of the parties, in this case, the appellant’s interests and the interests of the first, second and fourth respondents. First, it is incorrect if Mr Lau’s line of submissions that the decision of the first respondent to appoint and/or revoke the appointment of the Chairman and directors of the Board of KPHL and decision of the second respondents to suspend the appellant as Managing Director of KPHL pending the hearing of the within appeal by the Supreme Court were subjudice and amounted to contempt of Court, were accepted. Thus, the second respondents were barred from taking further action including changing IPA records to have the appellant removed as director of KPHL and terminating the appellant as Managing Directors of KPHL on 28th November 2025.
37. It is incorrect because as explained at [15] to [19] (supra), there are no grounds of appeal which questioned the decision of the first respondent and process of appointment and/or revocation of appointment of Chairman and directors of the Board of KPHL and further, suspension of the appellant as Managing Director of KPHL. Secondly, the termination of the appellant as Managing Director of KPHL on 28th November 2025 is not subject of the within appeal because it is a recent event giving rise to a distinct decision which is open to challenge on its own. It is also reinforced by the appellant’s counsel’s own admission at the hearing that the appellant was weighing up his options in relation to his termination of employment as Managing Director of KPHL. It follows that those matters of concern by the appellant are irrelevant and disregarded.
38. Mr Mannrai of counsel for the third respondent argues that the first, second and fourth respondents are guilty of unclean hands because while the appellant has commenced proceedings to seek redress in relation to the issue of appointment and/or revocation of appointment of Chairman and directors of the Board of KPHL, the issue was subjudice but the appellant was subsequently suspended by the second respondents, When pressed if he wished to press this submission, he correctly abandoned it because there was no order in force at the material time to restrain the first, second and fourth respondents from suspending the appellant or discussing the issue of appointment and/or revocation of appointment of Chairman and directors of the Board of KPHL. Thus, those submissions are disregarded.
39. Turning to the submissions in relation to the irreparable harm to the appellant’s good name, professional standing and business relationships and his claim of significant instability and confusion in the leadership of a critical state-owned enterprise caused by his replacement as Managing Director of KPHL, while they are legitimate concerns personal to the appellant, it must also be accepted that the fourth respondent through the first respondent as the Trustee of KPHL had decided to part ways with the appellant and head in a different direction under the leadership of Mr Aopi as the new Chairman of the Board of KPHL and management.
40. While it is noted that there is no evidence to support one of the parties’ assertions that KPHL is a billion Kina company, both sides did not contest this assertion. It follows that as a critical state-owned enterprise; it is the national interest that must come first. As Ms Peri submits KPHL “.........must be allowed to continue its operations and cannot be held to ransom by one individual.” I also uphold her further submission that due to delay “Since the decision of the Shareholder (first respondent), six (6) months has passed, KPHL is progressing under the new board and management,” it will be against the principles of good order and administration to halt or reverse the progress of KPHL under the new Board and management. In my view, to grant a stay order will surely be detrimental to KPHL’s operations and progress and counteracts the appellant’s application for a stay order.
Balance of convenience
41. At paragraph 75 of his written submissions, Mr Lau submits that “The business of running KPHL is based on trust and long-term relationships with counterparties, partners and other stakeholders, including the government of the day. The Appellant/Applicant has been the Managing Director for nearly 15 years, and he has built that trust and relationship with reputable international parters and counterparties. Partners known the Appellant/Applicant and he is the face of KPHL, they don’t know anyone else as the corporate leader of the counter’s NOC.”
42. As to the particulars, Mr Lau refers to paragraphs 56 to 72 of the affidavit in support of the appellant filed on 19th November 2025 (Document No. 2) which sets out the following:
(a) reaction from partners of KPHL of the appellant’s suspension. For example, from Dr Fereidun Fesharaki the founder of Facts Global Energy (“FGE”) who has been a long partner with past and present PNG Governments in providing analysis, data and consulting services for crude oil, natural gas, LNG and new energy markets to PNG. Dr Fesharaki has thrown his support behind the appellant and has raised concerns in relation to the success of the oil and gas industry particularly the LNG being a long-term business project and losing the leadership and experience of the appellant at this time will be detrimental to it especially when the Papua LNG approaches Final Investment Decision (FID). He assured the appellant that when he has the opportunity, he “will convey these concerns and highlight your (the appellant’s) invaluable contribution” to the first respondent.
(b) reaction of Wison and KPHL plans to deliver PNG’s first floating LNG project. In this case, Wison New Energies of China, with whom KPHL has a Pre-FEED contract for US$10 million to design and cos the proposed Floating LNG Processing Facility vessel, attended at the PNG Petroleum and Energy Conference on 8th and 9th October 2025. However, it did not happen. Presently, Wison is asking for payment of its outstanding fees.
43. The first, second and fourth respondents did not challenge the appellant’s account in relation to his invaluable contribution and service to KPHL over the last 15 years and his strong leadership and commitment to partnering with other stakeholders such as Dr Fesharaki and FGE and the latest initiative in the engagement of Wison to deliver PNG’s first floating LNG processing facility project. These are the appellant’s outstanding and incredible achievements which are acknowledged and for which PNG will be grateful. However, as I have explained at [35] to [40] (supra) the first respondent through the Board of the second respondents have decided, time had come to part ways with the appellant and giving the opportunity to another to lead KPHL. The progress and success of KPHL is in the hands of the new Board and management which the people of PNG have entrusted by virtue of the decision of the first respondent. As Ms Peri submits “The board (under the Chairmanship of Mr Aopi) has been in place since June 2025. Six months has passed. The Court should not disturb the status quo”. For these reasons, I am not satisfied that the balance of convenience favours the appellant.
The financial ability of Applicant
44. It is acknowledged that this is a significant litigation case in the context of corporate governance and the number of National Court proceedings commenced prior to the judicial review proceedings OS (JR) No 110 of 2025 and the judgment under challenged. However, the appellant has not demonstrated by appropriate evidence his financial ability to meet the costs and damages arising from the earlier National Court proceedings and those that may be occasioned in the within appeal by the grant of a stay order.
Whether damages would be sufficient remedy
45. Contrary to Mr Lau’s submission that “Damages is obviously not an appropriate remedy for the Appellant/Applicant. He has a compelling legal right to be accorded a remedy which is the equivalent to specific performance”, damages would be an adequate remedy for the appellant, particularly where he is employed under a contract of employment for the position of Managing Director of KPHL. I refer to a copy of the appellant’s contract of employment of 2024 which may be found at annexure “WS23” to his affidavit sworn on 1st December 2025 and filed on 2nd December 2025. On the other hand, damages would not be an adequate remedy for the first, second and fourth defendants, particularly, KPHL. This factor operates against grant of a stay order.
The overall interest of justice
46. Taking the entire circumstances of the case into account, I am nots satisfied that it is in the interests of justice that the Court should disturb the status quo.
Interim Injunction
47. The appellant also seeks interim injunction to restrain the respondents in respect of the matters outlined at [1.4] and [1.5] (supra) pursuant to Section 5(1)(b) of the Supreme Court Act which states that “Where an appeal is pending before the Supreme Court an interim order to prevent prejudice to the claims of the parties may be made by a Judge.”
48. As to the question of serious question to be tried, Mr Lau of counsel for the appellant adopted his submissions for the application for stay to demonstrate that fi6rst respondent failed to follow the process of appointment and/or revocation of appointment of Chairman and directors of the Board of KPHL under Section 10 of the KPA Act and the hearing sequence of the application to dismiss the application for leave for judicial review before leave was granted was contrary to Order 16 of the National Court Rules.
49. Mr Lau also argues that the balance of convenience favours the grant of an interim injunction because the appellant stands to suffer the most. He has not been removed as a director of the Board of KPHL but currently, has been suspended as the Managing Director of KPHL by the second respondents. This is contrary to Section 10(3) of the KPA Act which states that “One of the directors of Kumul Petroleum Holdings shall be the Managing Director of Kumul Petroleum Holdings.”
50. Moreover, at paragraph 84 of his written submissions, Mr Lau argues that “The interim orders are necessary to prevent prejudice to the Appellant/Applicant because the Second Respondents must be stopped from continuing to hold themselves out as the proper board and make decisions for the company despite the clear evidence of breaches of the Act, the Companies Act, the Trustees & Executors Act and the Interpretation Act. Clearly, their decisions to date be invalid, illegal or unlawful if the Appeal is successful and the OS (JR) No 110 of 2025 is remitted back to the National Court for hearing with leave of this Court.”
51. Mr Lau adds that prior to the filing of the judicial review proceedings OS (JR) No 110 of 2025, and the within appeal, no Court of competent jurisdiction has determined the application of Section 10 of the KPA Act and importantly whether the removal of the Board under the Chairmanship of the third respondent was legitimate. Finally, Mr Lau argues that while the suspension of the appellant was pending determination by the Court in the judicial review proceedings OS (JR) No 110 of 2025 and was subjudice, the appellant was subsequently terminated as the Managing Director of KPHL by the second respondents on 28th November 2025.
52. However, these considerations have no application or come into consideration in a case where the application for leave for judicial review was dismissed for being an abuse of process. As the Supreme Court pointed out in Kawari Fortune Resources Ltd v Apural (2015) SC1614 at [24]:
“.......An interim order is typically an injunction addressed to an opposing party so as to protect an interest of that party seeking the interim order.......”
53. In deciding whether to grant an interim order under Section 5(1)(b) (supra), the Supreme Court in Kawari Fortune (supra) listed some of the questions which are relevant at [25]:
54. As to what constitutes the claims of the parties, in Rex Kiponge v Hon Walter Schnaubelt &, NEC & The State (2023) SC2360 at [13] the Supreme Court stated that:
“As stated in Kawari Fortune (supra), Joel Luma v Francis Awesa (2013) SC1259 and Peter O’Neill v Cosmos Bidar (2019) SC1899 at [8], the claims of the Appellant are found in the grounds of appeal. Here, the claim is that the primary judge fell into error in refusing to grant leave to judicially review.”
55. In the context of a refusal to grant leave for judicial review, at [17] of the judgment, the Supreme Court stated:
“Until the Supreme Court overturns that refusal, the Plaintiff/Appellant still does not have a primary right to challenge the administrative decision. Consequently, a Plaintiff/Appellant should not be able to obtain any interim relief – similar to the situation in the National Court – until the refusal is overturned unless provided by statute.”
56. In the present case, the “claim” of the appellant in Section 5(1)(b) is the appeal against the dismissal of his application for leave for judicial review as being an abuse of process – the claim is not the decision of the first respondent to appoint and/or revoke the appointment of the Chairman and directors of the Board of KPHL. Based on the grounds of appeal outlined at [13] and [17] (supra), I uphold Ms Peri’s submissions that “It is merely a claim to have a procedural error corrected.” For this reason, it is not necessary to consider the appellant’s claim in relation to being prejudiced if not granted an interim injunction suffice to find that the appellant has failed to establish that an interim order in the form of an injunction is necessary to prevent prejudice to his “claim” pending the determination of the appeal.
Undertaking as to Damages
57. Before I close, there is a final matter to consider. It is in relation to Mr Pilamb’s submission that the appellant did not file/give a fresh undertaking as to damages following the filing of the amended application for stay and interim orders. I reject this submission as being misconceived because it is unsupported by law. Where there is no law for a fresh undertaking as to damages to be given, it is not one for the parties to ask the Court to invent one. Such a course would amount to an abuse of the Court’s process. On the other hand, there is an undertaking as to damages filed at the time the original application for stay and interim orders was filed. To my mind, it is sufficient and serves its intended purpose.
Conclusion
58. For the foregoing reasons, I am not satisfied that the appellant has made out a case for grant of stay and interim injunction and dismiss the amended application.
Order
59. The orders are:
________________________________________________________________
Lawyers for appellant: Niuage Lawyers
Lawyers for first & fourth respondents: Mel & Hennry Lawyers
Lawyers for second respondent: Bradshaw Lawyers
Lawyers for third respondent: Mannrai Lawyers
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