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Kotak v Walmatanken [2025] PGNC 521; N11685 (23 December 2025)

N11685

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


OS NO. 211 OF 2024


BETWEEN:


STEVEN KOTAK
in his capacity of his former association with Balokoma Limited
First Plaintiff


BALOKOMA LIMITED
Second Plaintiff


v


ALOIS WALMATANKEN
First Defendant


PACIFIC REGION DEVELOPMENT LIMITED
Second Defendant


KOKOPO: CHRISTENSEN J
19, 23 DECEMBER 2025


CIVIL – PRACTICE AND PROCEDURE – Application to set aside dismissal – previous related proceeding finalised by consent orders – subsequent application to set aside the consent orders dismissed for being an abuse of process – current proceeding sought declarations that consent orders are null and void – defendant’s previous application to dismiss pursuant to O 12 r 40(1) for abuse of process and no reasonable cause of action granted – current proceeding further seeks to set aside dismissal pursuant to O 12 r 8 – nature of the dismissal – whether ex parte –– fresh proceeding already determined on merits – availability of review or appeal – interest in the finality of litigation


Cases cited


Barry v Luma [2017] PGSC 42, SC1639
Demok v Yapi & Ors [2025] PGNC 35, N11158
Geosite Management Ltd v Kavo [2020] PGNC 223, N8439
Hegele v Kila [2019] PGNC 412, N8119
Kagua-Erave District Development Authority v Sugu Cigars Builders Limited [2023] PGSC 79, SC2429
Kairar Enterprises Limited v Hon Rosso, MP & Anor [2025] PGNC 428, N11565
Kupo v Raphael [2004] PGSC 28, SC751
Lady Ni Cragnolini & Anor v Leia [2023] PGSC 112, SC2464
Mali v Independent State of Papua New Guinea [2002] PGSC 4, SC690
Maser v Salin [2021] PGSC 49, SC2119
Tovon & Ors v The State [2016] PGNC 57, N6240


Counsel


I Dalu, for the first and second plaintiffs
R Asa, for the first and second defendants


RULING ON MOTION
Application to set aside dismissal


  1. CHRISTENSEN J: By way of notice of motion filed 20 November 2025, the first and second plaintiffs (the plaintiffs) seek an order to set aside an order of this court of dismissal. The application seeks:
  2. The defendants, represented jointly, oppose the application and submit that the proceeding has been finalised by an order of 10 March 2025.
  3. The proceeding relates to management issues of the second plaintiff company, Balokoma Limited, and consequential challenges at the project side of logging operations at Cape Orford, Pomio, East New Britain Province. The first plaintiff has a previous association with the company, being that he claims to have been appointed as the Chairman by the Board of Directors and shareholders on 14 August 2023. The first defendant claims current standing as the current Chairman of the company. The first defendant contends that the first plaintiff has no legitimate authority to act or give instructions on behalf of Balokoma Limited.
  4. Related to the current proceeding is a previous proceeding in which a former Chairman of the company claimed that the first defendant and others were acting without authority in involving in logging agreements: OS 48 of 2023, Balokoma Limited v Alois Walmantanken & Pacific Regional Development Limited.
  5. It is apparent that a critical issue in this, and the earlier, proceeding is the leadership configuration of Balokoma Limited and who was, and now is, authorised to make decisions on behalf of the company.

BACKGROUND


  1. To determine this application, it is necessary to consider in detail the procedural background of this matter and previous orders made.

Previous related proceeding: OS No 48 of 2023


  1. On 14 March 2023, an originating summons was filed that sought declarations including that the current first defendant was not a Director of Balokoma Limited and that he holds no representative capacity on behalf of the company.
  2. This proceeding was instituted as the then contended Chairman, purportedly appointed in November 2022, was seeking a determination as to who the legitimate Directors and shareholders were, and who was to manage the plaintiff company.
  3. On 23 August 2023, orders by consent (“the consent orders”) were made by his Honour Dingake J and were entered the same day. These orders included that the election of the new directors and shareholders at a meeting on 7 and 8 November 2022 was valid and proper for all relevant purposes, including registration with the Registrar of Companies. The directors and shareholders purportedly appointed on 3 December 2022 were removed forthwith. The plaintiff company was to enter into a new Logging and Marketing Agreement with the second defendant company, and any previous arrangements were not in effect and invalid. The former directors and shareholders, which includes the first plaintiff, were restrained from doing “any act relating to the affairs of the plaintiff company”. The proceedings were discontinued forthwith.
  4. A former Chairman of Balokoma Limited, Mr Bernard Polvoteip, deposes that he instituted OS 48 of 2023 on the basis that the defendants were trying to “hijack” the logging operations in the Cape Orford project. He deposes that the defendants then induced and coerced him to withdraw the proceedings and that the actions in withdrawing OS 48 of 2023 were done without the consent and knowledge of the legitimate directors and shareholders of Balokoma Limited.
  5. As to the consent orders of 23 August 2024 which concluded that proceeding, Mr Polvoteip deposes that there was no agreement and no instructions by the legitimate Directors and shareholders of Balokoma prior to his signing the order. Mr Polvoteip was surprised that the first defendant was made the Chairman of Balokoma Limited through the consent orders. A further former Chairman of the company, Mr Kamkovung, also deposes as to the irregularity in the manner in which the consent orders were obtained.
  6. On 11 September 2024, an application by way of notice of motion filed 30 October 2023 to set aside the final orders of 23 August 2023 was heard and dismissed for being an abuse of process. The order included that the matter, being OS No 48 of 2023, was closed forthwith.

Commencement of this proceeding: OS No 211 of 2024


  1. On 13 September 2024, the plaintiffs, then represented by different legal representatives to those now appearing, filed an originating summons. This seeks in summary:
  2. Essentially, the first plaintiff seeks declarations that the consent orders of 23 August 2023 in OS 48 of 2023 are declared null and void. The plaintiff contends that the consent orders were obtained in a circumstance of misrepresentation and irregularity and consequently seeks that the proceeding OS No 48 of 2023 be reinstated.
  3. It warrants observing that it is not made plain in the pleadings the particulars of fraud, misrepresentation, breach of trust, wilful default, or undue influence upon which the plaintiff relies as is required by O 8 r 30 of the Rules.

Progress of OS 211 of 2024


  1. Along with the originating process, on 13 September 2024 the plaintiffs filed a notice of motion seeking, inter alia, orders that the consent orders made on 23 August 2023 in OS 48 of 2023 be stayed pending determination of OS 211 of 2024 proceeding.
  2. On 18 October 2024, this proceeding was first mentioned. The plaintiff’s lawyer sought an adjournment, which was granted, and the matter was listed on 25 October 2024 for hearing of the motion.
  3. On 24 October 2024, the defendants, having filed a conditional notice of intention to defend, filed a notice of motion seeking that pursuant to O 12 r 40(1) of the National Court Rules 1983 (the Rules) the proceedings be dismissed for being an abuse of process and for not disclosing a reasonable cause of action.
  4. On 25 October 2024, when the matter returned for the hearing of the 13 September 2024 motion, date, the parties were again not ready, and the matter was adjourned to the Registry. It does not appear that the motion filed 13 September 2024 has ever been moved.
  5. On 2 December 2024, his Honour Kandakasi DCJ adjourned the proceeding to 3 December 2024 or soon thereafter, with a direction that the parties were to have the matter resolved based on the consent given by the parties through counsel before his Honour Dingake J.
  6. On 4 December 2024, Kandakasi DCJ issued directions. The representative for the defendants was in attendance, and the endorsed order reflects that the plaintiff appeared in person. It is of assistance to set out in full the orders made (with emphasis added):
  7. These orders were entered on 3 March 2025.
  8. On 6 March 2025 the defendants corresponded with the previous legal representative for the plaintiffs and informed them that they were instructed to move the notice of motion dated 24 October 2024 to dismiss the proceeding for being an abuse of process and for not disclosing a reasonable cause of action. The counsel drew the representatives attention to the authority of Tovon & Ors v The State [2016] PGNC 57, N6240 and contended that the proper remedy for a party aggrieved by a consent order is not by way of a notice of motion to set aside in the same court, but by the filing of an appeal or review in the Supreme Court, or by making a separate claim against the lawyers for alleged negligence. The representative proposed to the previous legal representative that the parties consent to discontinue the proceedings with costs and informed the representative that failing such they would proceed to move their motion.
  9. On 10 March 2025, the previous legal representative for the plaintiff filed a notice of ceasing to act. He had informed his clients at the last minute that he was not able to appear as he had no practising certificate. No submissions had been filed. An affidavit sworn by a brother of the first plaintiff provides that the legal representative arrived in the courtroom with the notice just before the matter was about to be mentioned. This witness deposes that “when the matter was called, the defendant’s lawyer applied for dismissal, which was granted”. There was no appearance by a legal representative for the plaintiffs. The first plaintiff deposes that the matter was “dismissed there and then”. A further witness to this hearing, who swears in a capacity as the Company Secretary for Balokoma Limited, deposes that his recollection is that the dismissal was on grounds of “abuse of process and failure to comply with the direction orders issued on 4 December 2024” and that the “court did not dismiss the proceedings for want of prosecution due to absence of plaintiff’s counsel”.
  10. The representative for the defendant deposes that on 10 March 2025 the first plaintiff was present in court when the court dismissed the proceeding. Mr Asa deposes that “Kandakasi DCJ fully explained to him his options are available to him in law, the
    non-compliance of the order of 4 December 2024 and that the current proceedings were not filed using the proper mode and with no proper pleadings”.
  11. On 10 March 2025, Kandakasi DCJ made the following orders (emphasis added):
  12. On 14 July 2025, the plaintiffs filed a notice of motion seeking that the “Orders of 10 March 2025 dismissing the proceedings is set aside and matter be re-instated forthwith”. It is apparent that the terms of the order sought differs to the application that is now made, and the significance of this will be considered further below.
  13. On 21 July 2025, the current representative of the plaintiffs appeared, as did the representative for the defendants. The matter was adjourned to 11 August 2025 for hearing of the notice of motion filed 14 July 2025. The hearing came to be adjourned on a number of subsequent occasions while affidavit material was prepared. On 5 September 2025, his Honour Cannings J ordered that the motion was dismissed for want of prosecution due to a failure to move the motion on several occasions.
  14. The plaintiff’s representative was not in attendance on that date, although he has deposed that he was in contact with the defendant’s representatives as to his intended attendance and he arrived only 15 minutes late for the listing due to other professional obligations. A legal representative, Mr Paisat, purported to appear as friend of the court for the second plaintiff, and the defendants were represented. The plaintiff was to pay the defendants costs of the motion in the fixed sum of K1000.00.
  15. On 3 October 2025, the plaintiffs filed a further notice of motion. This motion sought an order that the order of 5 September 2025 dismissing the plaintiff’s “notice of motion for want of prosecution” be set aside and the notice of motion re-instated forthwith. This motion was subsequently not pressed, but rather the notice of the motion now the subject of consideration was filed. The application in the notice of motion filed 20 November 2025 finally came to be considered for hearing on 19 December 2025 and this is the application now to be determined.

CONSIDERATION


  1. The plaintiff’s application is premised on a basis that the orders of 10 March 2025 were a dismissal for want of prosecution. The plaintiff contends that the orders were made ex parte.
  2. The defendants submit that the application is entirely misconceived as what occurred on 10 March 2025 was not a dismissal for want of prosecution, nor was it done ex parte. It is submitted that the first plaintiff was present in court, and that the dismissal was one done in accordance with the defendant’s notice of motion filed 24 October 2024.

Nature of the dismissal


  1. This court is limited to determining this aspect of the application be reference to the court documentation, which includes particularly from the defendant’s representative evidence as to what occurred on 10 March 2025: O 12 r 9 of the Rules. No party assisted with transcripts of the listing and determination in contention.
  2. The terms of the orders made by Kandakasi DCJ on 4 December 2022 and the correspondence of the defendant’s representative satisfy me that what was before the court on 10 March 2025 was consideration of a dismissal on a basis of the proceeding being an abuse of process and for not disclosing a reasonable cause of action. That is, the court was determining the motion by the defendants filed 24 October 2024.
  3. Accordingly, I am satisfied that the current application is misconceived. It is based on a premise of dismissal that was not the basis upon which his Honour dismissed the proceeding. His Honour Kandakasi DCJ was, inferentially given the background orders and the contents of the motion, satisfied of dismissal was appropriate for an abuse of process and for not disclosing a reasonable cause of action. There is no basis to conclude that proceeding OS 211 of 2024 was dismissed for want of prosecution as contended by the plaintiff. On this basis, this application must be refused.

Consideration of the merits


  1. Nonetheless, for completeness, I turn to consider whether had the motion proceeded as originally drafted in July 2025, there is merit in the application to set aside and reinstate. That is, whether this court should set aside the dismissal of the proceeding in the broad sense of that term.
  2. A preliminary issue to determining the applicable law as to this is whether the dismissal on 10 March 2025 was done ex parte. I am prepared to accept the submission of the plaintiff that it was. While on the affidavit material of the defendant’s representative the first plaintiff was present, on the affidavit material of the brother of the first plaintiff, the first plaintiff was not present. Regardless, it is plain that there was no legal representative for the plaintiff in attendance and for current purposes, I am prepared to proceed on a basis that the matter was heard and orders made ex parte.
  3. Accordingly, as the plaintiff acknowledges, in such circumstances there are three requirements as provided by Lady Ni Cragnolini & Anor v Leia [2023] PGSC 112, SC2464 to be considered:

Application must be made within a reasonable time


  1. As to the first of these, the plaintiff submits that the time at which the application is to be considered to have been made in this matter is with the first notice of motion of this nature filed on 14 July 2025. I accept that it is appropriate in the circumstances to view this matter in this way. It follows that there was a period of some four months. Further, the plaintiff submits with reference to evidence of the previous representative, that there were challenges in securing funds to pursue the matter and delays arising from obtaining the files from the previous representative.
  2. While there may be a reasonable explanation for the delay, I am not readily persuaded that the application was made in a ‘reasonable’ time in those circumstances. It is beyond the period considered in Demok v Yapi & Ors [2025] PGNC 35, N11158 at [8], being a period of “within a week to three months”, as being a reasonable time. However, it is unnecessary for me to decide this given my determination of the final requirement below.

Applicant must show a reasonable explanation for his absence


  1. As to the second requirement, the plaintiff submits that the plaintiffs were disadvantaged by the conduct of their legal representative. While ordinarily the negligent conduct of a lawyer may not be a reasonable excuse, in the circumstances of this matter, I am prepared to accept that there was a reasonable explanation for the lack of legal representation on the date of dismissal.

The applicant must have a meritorious claim


  1. As to the final requirement, I am not satisfied that the plaintiff has established this. The plaintiff submits that the plaintiffs would suffer great injustice should the merits of their case not be heard and determined in their entirety. The plaintiff submits that injustice arises by the preclusion of an appeal pursuant to s 14(2) of the Supreme Court Act and that the plaintiff’s are entitled to agitate the validity of the orders in OS 48 of 2023 by filing a fresh proceeding.
  2. I accept, as Kandakasi J (as then was) said at [17] in Tovon & Ors v The State, that where a contention as to the consent orders as arises here occurs, “the correct mode is either an appeal or a review or fresh proceeding claiming fraud or misrepresentation as against the consent order which finally resolved [the] matter and those who facilitated it”.
  3. That may be so, but it remains that the circumstances of this matter are such that the fresh proceeding has been determined. There is, as a further principle of application considered by Kandakasi J (as then was) in Tovon & Ors v The State, an interest in the finality of litigation. His Honour observed at [19]:

...there must be finality in litigation, subject to a rehearing in cases where for good reason an earlier decision was wrongly arrived at by reason of a misapprehension of the facts or the law...[w]here the error is at a lower trial level it is usually by appeal or review in accordance with their respective governing rules and principles and any statutory provision on point.


  1. There is no submission made here that the decision of 10 March 2025 was one arrived at by reason of a misapprehension of the facts or the law such that the National Court now has jurisdiction to re-instate the proceeding. The plaintiffs, at least by appearing self-represented, had the opportunity to be heard as to the proposed dismissal sought in the defendant’s motion. The focus of the submission now made by the plaintiff is that the substantive proceeding is one of merit.
  2. The difficulty with that submission is that this is a matter that has already been considered and determined by his Honour Kandakasi DCJ in making the orders on 10 March 2025. I do not accept the submission of the plaintiff that the orders did not consider the merit of the substantive proceeding and were concerned only with a want of prosecution. As already observed, the content of the orders, the terms of the defendant’s notice of motion, the correspondence sent by the defendants, and the evidence of the defendant’s representative, satisfies me otherwise.
  3. I have considered authorities relied upon by the parties as well as other authorities that have considered issues of this nature, in particular as to what the appropriate remedy is for an aggrieved party to consent orders: Maser v Salin [2021] PGSC 49, SC2119; Kairar Enterprises Limited v Hon Rosso, MP & Anor [2025] PGNC 428, N11565; Hegele v Kila [2019] PGNC 412, N8119; Kagua-Erave District Development Authority v Sugu Cigars Builders Limited [2023] PGSC 79, SC2429; and Geosite Management Ltd v Kavo [2020] PGNC 223, N8439.
  4. However, these authorities are distinguishable from the current circumstance because they are authorities that are of assistance to the issue as it stood to be determined on 10 March 2025. Those authorities address the correctness or otherwise of his Honour Kandakasi DCJ’s order, which is not a matter for me to determine. The issue now is a step beyond that, and the determination now is concerned with whether this court should now set aside the order to dismiss the fresh proceeding.
  5. In Lady Ni Cragnolini & Anor v Leia, the Supreme Court observed at [10] that:

An order for dismissal in whatever form it takes terminates the proceedings. The public interest in maintaining the finality of litigation requires great caution in the exercise of powers under Order 12, r 8.


  1. In contrast to what occurred in Lady Ni Cragnolini v Anor v Leia, in the current matter, the merits of the substantive proceeding appear to have been informative for at least part, if not all, of the consideration for the making of the order.
  2. The circumstance here is more analogous to what occurred in Barry v Luma [2017] PGSC 42, SC1639, an authority that was distinguished on its facts in Lady Ni Cragnolini & Anor v Leia. In Barry v Luma, the Supreme Court was concerned with a dismissal pursuant to O 12 r 40 of the Rules. The Court observed that the application was heard “on its merit”, albeit ex parte, and dismissed the proceeding on the basis that no reasonable cause of action had been disclosed. The appellants applied to set aside the ex parte order pursuant to O 12 r 8 of the Rules, however this was refused as the substantive proceeding had been determined. The Supreme Court held that the ex parte order dismissing the National Court proceedings for disclosing no reasonable cause of action is a final order and cannot be set aside by way of notice of motion made pursuant to O 12 r 8 of the Rules.
  3. The same conclusion must be made here in respect to the application to the extent it seeks setting aside the order of 10 March 2025 pursuant to O 12 r 8(2)(b) and r 8(3)(b) of the Rules.

Setting aside pursuant to Order 12, r 8(4) of the Rules


  1. A further power to set aside is provided pursuant to O 12 r 8(4) of the Rules which is of application where a party is not absent: Lady Ni Cragnolini v Anor v Leia at [17]. In the event I am wrong as to my conclusion of the dismissal being done ex parte, given that on some of the evidence the first plaintiff was present, I will proceed to consider the application from this perspective.
  2. In doing so, I reach the same conclusion. As the Supreme Court made plain in Barry v Luma, O 12 r 8(4) of the Rules excludes a power to set aside a judgment or order for “dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief”: at [17]. The Court further observed:

... a notice of motion cannot be employed to resurrect, restore or revive a substantive proceeding that has been dismissed even on the basis of an ex parte order. The remedy for an aggrieved party does not lie in an application under Order 12, r 8 but through an appeal or review process in the Supreme Court.


  1. It remains that the order of dismissal cannot be reinstated by the mechanism adopted by the plaintiff here.

CONCLUSION


  1. As was seemingly ventilated at the hearing on 10 March 2025, and then in submissions before me, my determination does not prevent justice being pursued by the plaintiff. While s 14(2) of the Supreme Court Act does, on its plain terms, exclude an appeal from the order made in OS 48 of 2023 (see Mali v Independent State of Papua New Guinea [2002] PGSC 4, SC690), no such impediment arises with an application for review to the Supreme Court in that proceeding (see, eg. Kupo v Raphael [2004] PGSC 28, SC751). Further, while a matter for the Supreme Court, there is no apparent impediment for the plaintiff to file an appeal as to the order of 10 March 2025 in OS 211 of 2024.
  2. The attempt by the plaintiff to resolve the validity of the consent orders by way of the fresh proceeding in the National Court were exhausted by the order of 10 March 2025.

ORDERS


  1. For those reasons, the following orders are made:

Lawyers for the first and second plaintiffs: Ainui Legal Services
Lawyers for the first and second defendants: Warner Shand Lawyers


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