N11678
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 118 OF 2024 (IECMS)

BETWEEN:
BARRICK (NIUGINI) LIMITED
Plaintiff

AND:
JACK YANJOLE
First Defendant

AND:
KAIRIK AIRPORT YUANDUANE ASSOCIATION INC.
Second Defendant

WAIGANI: CAREY J
11, 14 NOVEMBER 2025; 22 JANUARY 2026 

NOTICE OF MOTION — Whether motion to be granted or refused — Joinder application – Interim restraining orders maintained – Caution to Counsel – Exercise of discretion
NOTICE OF MOTION – Joinder Application – Order 8 Rule 5 of the National Court Rules - Consideration

The Defendants sought to join three parties to the proceeding. They further submit that the interim orders be discharged. The Defendants’ counsel had been issued a show cause order in relation to being in contempt of the Court based on a letter of 30th September 2025 written to the Registrar in which he alleged scandalizing conduct of the judge.  The Plaintiff sought to move the matter forward for trial. 

Held:
1.	In disputes affecting the continuous operation of essential public infrastructure such as airports integral to safety, economic activity, and community access, the public interest is an explicit and weighty component of the balance of convenience. Absent clear illegality, the appropriate course is to preserve the established operational status quo until trial.

2.	Counsel ought to ensure that in making statements to the court that it is grounded in fact and law and not scandalous.

3.	The action of the Defendants’ counsel who is an officer of the Court is to uphold the rule of law and support proper administration of justice and not defame or undermine the authority of the Court.
 
4.	Scandalous or abusive allegations against the Court, whether sworn or communicated by letter to the Registry, constitute an abuse of process. Such material will be struck out or disregarded, and repetition may attract personal costs orders or other measures necessary to protect the integrity of the Court’s process.

5.	While this Court has the authority to initiate contempt proceedings against the Defendants Counsel it has exercised leniency in issuing a caution to the Defendants’ Counsel.

6.	Paragraph 1 of the Orders made on 11th November 2025, directing submissions on a show cause why counsel for the Defendants should not be held in contempt, is set aside.

7.	The hearing for show cause scheduled for 8th April 2026 at 9.30am is vacated.

8.	The following entities are joined as Defendants to this proceeding: the National Airports Corporation, the Enga Provincial Government and the Independent State of Papua New Guinea.

9.	The Defendants shall, within 14 days, file and serve:

a.	Copies of the Porgera Agreements relied upon;
b.	The Special Mining Lease instrument and evidence of its expiry or termination; and
c.	Any Amended Defence or additional pleadings required as a consequence of joinder. 

10.	All existing interim orders remain in force and effect pending further orders of the Court.

11.	The Defendants’ application to discharge interim orders is refused and a directions hearing to be fixed after completion of joinder‑related filings is scheduled for 18th February at 8am.

12.	This matter remains with the presiding judge and shall not be transferred to another track or list.

13.	Costs be in the cause.

14.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Cases cited
Asivo v Maigari Ltd [2020] PGNC130; N8330
John Manau v Telikom (PNG) Ltd [2011] SC1146
Kaman v State [2021] PGSC 117; SC2227 

Counsel
Mr. L. Evore, for the plaintiff
Mr. J. Kumbu, for the first and second defendants

JUDGMENT

1.	CAREY J: This is the decision in relation to Jack Yanjole (the First Defendant) and Kairik Airport Yuanduane Association Inc. (the Second Defendant) collectively, (the Defendants) Notice of Motion filed 8 August 2025 seeking leave of the Court to join National Airports Corporation, Enga Provincial Government and the National Government as parties to the proceeding.

2.	Barrick (Niugini) Limited (the Plaintiff) commenced this proceeding on 16th May 2024 seeking permanent restraining orders against the Defendants from interfering with the operations of Kairik Airport in Porgera, Enga Province. 

BACKGROUND
3.	Kairik Airport was established under three agreements executed on 12th May 1989 between: The National Government and Enga Provincial Government; the National Government and Porgera Landowners; and the Enga Provincial Government and Porgera Landowners.

4.	These agreements (collectively referred to as the Porgera Agreements) provided for the management and gazettal of Kairik Airport and terminated upon expiry of the Special Mining Lease in 2019.

5.	The Plaintiff was not a party to these Agreements.

6.	The Plaintiff indicates that the land related in dispute is state land and therefore the right to use the land is not based on a license from the customary landowners.

7.	The following affidavits are relied on by the Defendants. They are:

a)	The Affidavit of Jack Yanjole sworn on 6th August 2025 and filed on 8th August 2025 (doc 1); and
b)	The Affidavit of Robert Mark Smith sworn on 6th August 2025 and filed on 8th August 2025 (doc 2).

8.	The Plaintiff relies on the following:

a)	The Affidavit of George Koi sworn on 15th May 2024 and filed on 16th May 2024 (doc 3); and
b)	The further Affidavit of George Koi sworn and filed on 20th May 2024 (doc 4). 

ISSUES 
9.	The issues are as follows:

i.	Whether the National Airports Corporation, the Enga Provincial Government, and the Independent State of Papua New Guinea ought to be joined in the proceedings?
ii.	Should the interim restraining orders be discharged?
iii.	Whether referral to CC1 Track is appropriate?

DETERMINATION
10.	The Defendants argue that the Plaintiff was not a party to the Porgera Agreements and therefore the doctrine of privity of contract applies as per Asivo v Maigari Ltd  [2020] PGNC130; N8330.

11.	The Plaintiff contends that this is not applicable as the dispute is in relation to land which is not customary land and is in fact state land as indicated in doc 3. 

12.	In doc 3, it is asserted that the Plaintiff’s right to use the Kairik Airstrip stems from the State’s outright acquisition and alienation of the land in 1990 under the Land Act, after which the airstrip became State land and has been used and maintained by the mine operator with State acquiescence, not under any private licence from landowners.

13.	The Defendants argue that the Civil Aviation Act 2000 outlines who has statutory authority over airports. 

14.	The Plaintiff therefore contends that its rights are derivative of State ownership and are not dependent on the Porgera Agreements or the Special Mining Lease (SML), and that the airstrip land does not revert upon expiry of the SML.

15.	On that basis, no time‑limited licence expired in 2019 or otherwise, because the Plaintiff avers there was never a contractual licence capable of expiry and its use continues unless and until the land is lawfully divested of its State status. 

16.	The argument by the Defendants do not vitiate the Plaintiff’s standing in light of the dispute that needs to be addressed and the fact that the Plaintiff as an operational user has sought relief restraining alleged threats or unlawful interference with its lawful activities, subject to the determination by trial.

17.	I accept that this argument needs to be fully ventilated through a trial and at this stage the doctrine of privity of contract is not applicable unless there is further evidence to this court to the contrary. 

18.	I am also persuaded by the Defendants argument that in order to have clarity on the matter, it will be necessary pursuant to Order 5 Rule 8 (1) (a) (b) and (3) of the National Court Rules (NCR) that the National Airport Corporation, Enga Provincial Government and the Independent State of Papua New Guinea be joined to this proceeding as Defendants as they have sufficient interest as parties to the Porgera Agreements which have been cited in doc 1.

19.	The Defendants suggest that the interim orders should be discharged because the Plaintiff was never a party to the Porgera Agreements, has no privity of contract, and therefore has no legal right or standing to restrain the Defendants’ actions in relation to the Kairik Airport, particularly once those agreements terminated upon the expiry of the SML in 2019. 
20.	In John Manau v Telikom (PNG) Ltd [2011] SC1146, it indicated at para. 16 that:
“The doctrine of privity of contract is that, as a general rule, a contract cannot confer rights or impose obligations arising under it on anyone else except the parties to the contract or agreement. See PNGBC v. Bara Amevo [1998] PNGLR 240”.

21.	The doctrine of privity of contract is not applicable in this case because the Plaintiff is not seeking to enforce rights under the Porgera Agreements, and the relief sought does not depend on contractual rights arising from those agreements.

22.	The Plaintiff is not attempting to enforce a contract, but is seeking to restrain threatened interference with the use of critical infrastructure on property and equitable grounds.

23.	Privity of contract has no role to play where the Court is asked to prevent unlawful redress, preserve the status quo, and allow disputed land and governance issues to be resolved lawfully at trial.

24.	The Defendants also argue that the proper authorities responsible for the airport (the National Airports Corporation, Enga Provincial Government and the Independent State of Papua New Guinea) are not parties to the proceedings, and until those parties are joined, it is unjust to maintain interim orders restraining landowners from asserting rights over what they say remains customary land. 

25.	The absence of the National Airports Corporation, Enga Provincial Government and the Independent State of Papua New Guinea, may justify joinder but does not invalidate existing interim orders where immediate harm is threatened.

26.	I find that the Plaintiff has established a serious and arguable case that it has lawful rights to continue using the Kairik Airport pending trial, grounded on long, uninterrupted use of the airport since about 1990, maintenance and operational control of essential infrastructure and documentary evidence that the underlying land was acquired and alienated by the State, such that landowner groups cannot lawfully exclude users in the way that they have been attempting to do.

27.	Further, even if title, control, or authority over the airport is contested, those are substantive issues for final determination, not matters appropriate to resolve on an interlocutory discharge application. Discharging the interim orders would prematurely determine contested rights in favour of one side before evidence is tested.

28.	The interim orders merely restrain unilateral disruption and preserve that long‑standing operational status quo until the Court determines the parties’ rights. Discharging them would reward chaos and protest-based enforcement, contrary to settled principles of interlocutory relief and rule of law.

29.	There is plainly a serious question to be tried, damages would be an inadequate remedy given public‑safety and continuity concerns and non‑pecuniary disruption and the balance of convenience favours preserving the long‑standing operational status quo.

30.	It should be noted that the airport is not merely a private commercial facility, but it is critical public infrastructure serving a major national mining project, government operations, and the wider Porgera and Enga communities.

31.	I am of the view that the public interest lies decisively in orderly resolution by the Courts, continuity of essential transport links and preventing the assertion of contested land claims through airport blockades. 

32.	In doc 4 it was indicated that villagers were taking the law into their own hands through closing the airstrip and preventing flights in and out of the Kairik Airport. 

33.	The taking of the law into one’s own hands has no place in contemporary Papua New Guinea, where commercial certainty and social order depend upon adherence to the rule of law and recourse to lawful process.

34.	I have considered the evidence and submission by the parties and will now address important developments in this proceeding as it relates to the conduct of the Defendants counsel. 

35.	In doc 2 it was stated at paras. 13, 14 and 15 as follows:
“13. That this Court’s delay in hearing the substantive matter is affecting the Landowners rights and concerns to be heard on the Mining Development Agreements.
14. That the Defendant lawyer as advise us that this Court has deferred Trial by three or four Chamber Orders which does not sound fair to the Defendants interest. 
15. That this Court cannot unknowingly protect the purported rights of the Plaintiff and forgo the rights of the landowners who have never benefited for almost 30 years from the usage of their land by the Plaintiff in a prolonged proceeding.”
36.	It is without question that these assertions by Mr. Robert Mark Smith in doc 2, while entitled to have an opinion by way of Constitutional Right of Freedom of Expression under Section 46, are subject to not making scandalous statements which impugn the reputation of the Court. 

37.	Section 46 of the Constitution of Papua New Guinea is subject to Section 38 of the Constitution, which allows restrictions on qualified rights that are prescribed by law and are reasonably justifiable in a democratic society, including in the interests of public order, morality, national security, and the rights of others.

38.	The Court further observes that affidavits and other sworn material filed in this proceeding must conform to the standards required by law. Persons who depose affidavits do so under the guidance and supervision of counsel, and it is incumbent upon legal practitioners to ensure that deponents are properly advised as to the nature and limits of admissible material.

39.	Affidavits are not a vehicle for argument, conjecture, grievance, or personal attack, nor may they be used to advance scandalous, abusive, or improper statements intended to undermine the authority or reputation of the Court.

40.	Counsel bear a professional responsibility to prevent such material from being sworn and filed. A failure to do so reflects not upon the Court but upon those who allow, encourage, or fail to restrain the inclusion of improper matter. 

41.	The Court will not hesitate, where necessary, to strike out offending material, to disregard it entirely, and to consider appropriate consequences if such conduct persists.

42.	This is particularly important for the Defendants’ Counsel who for this purpose is being named in this judgement as Mr. Jacob Kumbu.

43.	In Kaman v State [2021] PGSC 117; SC2227 it was held that:

“1.       An allegation of actual bias must be distinctly made and clearly proven. Cogent evidence is required: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 25; (2001) 205 CLR 50. The test of actual bias requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] 244 CLR 427.
2.	The test for apprehension of bias is objective. The principles to be applied in determining whether there is a reasonable apprehension of bias are well established. The test for recusal is “whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion”: Boateng v The State [1990] PNGLR 342; PNG Pipes Pty Ltd and Sankaran Venugopal v. Mujo Sefa & Ors (1998) SC592; Yama v Bank South Pacific (2008) SC921. This includes 'a fair minded, lay observer' as considered in Livesay v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288; Gobe Hongu Ltd v. National Executive Council & Ors [1999] N1964. In Yama v. Bank South Pacific Ltd (2008) SC921, the Supreme Court observed that an objective, fair minded, lay observer “is to be attributed with having some knowledge of the way in which lawyers and judges work”.
3.	It is to be presumed that a judge is impartial and that the person being observed is “a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial”: Johnson v. Johnson [2000] HCA 48.
4.	Judges should not too readily accede to applications for disqualification, whereby parties may effectively influence the choice of a Judge in their cause: Gobe (supra) , Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239. Judges should resist from being driven from their Courts by the conduct or assertion of parties: Raybos Australia Pty Ltd v. Tectran Corp. Pty Ltd (No. 4) (1986) 6 NSWLR 674 (at 689).
5.	The apprehension must be firmly established: In Re JRL; Ex parte CJL [1986] HCA 39. The “suspicion or apprehension of bias must be based on reasonable, not fanciful, grounds”: Application by Herman Joseph Leahy (2006) SC981.
6.	The application of the apprehension of bias principles involves two steps. It is necessary first to identify the facts, matters and circumstances by reason of which it is said that a judge might decide a case other than on its legal and factual merits. The second is to articulate the logical connection between those facts, matters and circumstances and the apprehended deviation from the course of deciding the case on the merits: Yama v Bank South Pacific (2008); SC921 adopting and applying Ebner v. Official Trustee in Bankruptcy [2000] HCA 63; Smits v. Roach [2006] HCA 36.
7.	None of the factual bases upon which the applicant relies have been established. None of those matters, even if established would demonstrate actual bias. The allegations of bias are based on nothing more than dissatisfaction with factual or legal findings. Such applications should not be entertained. The Court should not engage in a debate on the merits of a case that has been finalised. To do so would encourage similar misguided applications in abuse of the Court’s process by disgruntled litigants, and severely undermine confidence in the finality of decision making.
8.	No apprehension of bias arises because of any connection between a judge’s knowledge of the Supreme Court proceedings and the matters he or she is required to adjudicate on the slip rule application, the purpose of which is to allow the Court to correct its own mistakes with respect to a glaring mistake, error or slip of law or fact on a critical issue that is clearly manifest, and not arguable, on the face of the record: PNG Law Society v David Rickey Copper (2018), Injia CJ, unreported. The contention fundamentally misconceives the nature of a slip rule application.
9.	The application is dismissed.”

44.	The Supreme Court case immediately preceding indicates the appropriate steps and methods to be employed when there is allegation of bias. I will leave the understanding of that to the Defendants’ counsel who would do well to learn from this misstep before the Court. 

45.	I have also been made aware of a letter dated 30th September 2025, addressed by counsel for the Defendants to the Registrar of the National Court.

46.	The Court notes that the letter is not a pleading, is not an application brought in accordance with the NCR and purports to make assertions and allegations concerning the conduct, impartiality, and decision-making of the presiding Judge.

47.	To the extent that the correspondence alleges bias, impropriety, or deliberate unfairness on the part of the Court, those allegations are scandalous, unfounded, and wholly inappropriate.

48.	It is well established that interlocutory and case management orders are judicial acts made in the exercise of discretion.

49.	Dissatisfaction with such orders does not, in itself, give rise to an inference of bias; and allegations of bias must be raised formally, by proper application and on proper grounds, not by correspondence to the Registry.

50.	The Court further observes that the issuance, variation, or vacation of hearing dates and procedural directions is a routine incident of case management.

51.	Ex parte orders, where made, are subject to review, discharge, or variation upon application and the Defendants have, at all material times, had recourse to the Court by formal motion, including motions which have been heard and determined.

52.	Correspondence which seeks to pressure the Court through threats of complaint impute motive to judicial decisions or bypass established procedures for recusals, review, or appeal, undermines the orderly administration of justice and is improper.

53.	If a party contends that a judge should recuse himself, the appropriate course is to file a formal application supported by affidavit evidence, articulate the objective basis upon which a fair-minded observer might reasonably apprehend bias and place the matter before the Court in open proceedings.

54.	Likewise, if a party is aggrieved by interlocutory orders, the remedy lies in application for variation or discharge or appeal, where permitted by law, and not by informal and accusatory correspondence.

55.	The Court will not engage with allegations made in correspondence that are not properly before it. 

56.	I will not countenance such behavior by counsel now or in the future. 

57.	The Court’s decisions stand or fall according to law and will be addressed only through lawful processes.

58.	Counsel are reminded of their professional obligations as officers of the Court to conduct proceedings with restraint and civility, refrain from making reckless or scandalous allegations, and uphold confidence in the administration of justice.

59.	The Registry is directed to place this response on the Court file and take no further action on the letter of 30th September 2025.

60.	All substantive issues in this proceeding will be addressed in Court, on the record, and in accordance with the law.
CONCLUSION

61.	The Court makes it clear that it is in the interests of justice that this matter now proceed expeditiously to trial. 

62.	I do not propose to permit further unnecessary interlocutory skirmishing or procedural distraction.

63.	Accordingly, the directions hearing listed in February will be conducted with the clear objective of finalising all outstanding procedural and interlocutory matters, including the identification of parties properly before the Court, the settling of issues for trial, and the making of comprehensive case management directions.

64.	At that hearing, the Court anticipates making final direction orders in consultation with all parties, with a view to fixing a firm trial date and bringing the matter to determination without further delay.

ORDERS
1.	Paragraph 1 of the Orders made on 11th November 2025, directing submissions on a show cause why counsel for the Defendants should not be held in contempt, is set aside.
2.	The hearing for show cause scheduled for 8th April 2026 at 9.30am is vacated.
3.	The following entities are joined as Defendants to these proceedings: the National Airports Corporation, the Enga Provincial Government and the Independent State of Papua New Guinea.
4.	The Defendants shall, within 14 days, file and serve:
a.	copies of the Porgera Agreements relied upon;
b.	the Special Mining Lease instrument and evidence of its expiry or termination; and
c.	any Amended Defence or additional pleadings required as a consequence of joinder. 
5.	All existing interim orders remain in force and effect pending further orders of the Court.
6.	 The Defendants’ application to discharge interim orders is refused and a directions hearing to be fixed after completion of joinder‑related filings is scheduled for 18th February at 8am.
7.	This matter remains with the presiding judge and shall not be transferred to another track or list.
8.	 Costs be in the cause.
9.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
Ordered accordingly.

Lawyers for the plaintiff: Ashurst Lawyers 
Lawyers for the first and second defendants: Jacob Sanga Lawyers