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Telikom PNG Ltd v Independent Consumer and Competition Commission [2007] PGNC 43; N3144 (5 July 2007)

N3144


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 1599 of 2006


BETWEEN


TELIKOM PNG LIMITED
Plaintiff


AND


INDEPENDENT CONSUMER AND COMPETITION COMMISSION
First Defendant


AND


DIGICEL (PNG) LIMITED
Second Defendant


Waigani: Kandakasi, J.
2007: 21 June
: 5 July


PRACTICE & PROCEDURE – Mode of commencement of proceedings – Relief sought – Seeking declaration that a decision by a public authority as invalid or null and void -Originating Summons seeking judicial review only proper mode of commencement and maintenance of proceedings under O 16 r 1 of the National Court Rules, which is an exclusive process – Issuance of writ of summons an abuse of process of the Court – Proceedings dismissed for abuse of process of the Court – Order 12 r 40 and Order 8 r 27 National Court Rules.


PRACTICE & PROCEDURE – Issuance and maintenance of three separate proceedings by one party against the same party or parties out of a decision of a public authority – One for judicial review by Originating Summons and another for declaration and damages by Writ of Summons and third by way of appeal to administrative tribunal whilst Court proceedings pending – Whether this constitutes abuse of process of the Court – Essentially same main issue in all proceedings – Proceeding by originating summons for judicial review under O16 r 1 only correct mode of proceedings open – Issuance other proceedings amounts to an abuse of the process - Proceedings dismissed for abuse of process of the Court – Order 12 r 40 and Order 8 r 27 National Court Rules.


PRACTICE & PROCEDURE – Application for judgment in default of discovery – Party requiring discovery foreshadowing amendment to its pleadings – Requiring opposing party to give discovery amounts to an abuse of the process of the Court – Applicant failing to demonstrate repeated default or the opposing party trying to avoid an expedited trial and likely prejudice to party applying for default judgment – Application dismissed as having no merit – Order 9 r 15 National Court Rules.


Cases Cited


Papua New Guinea Cases


The Administration of the Territory of Papua and New Guinea v Doriga Guba [1973] PNGLR 603.
The State v. Peter Painke [1976] PNGLR 210.
National Capital District Interim Commission v. Bogibada Holdings Pty Ltd Pty Ltd [1987] PNGLR 135.
Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425.
The National Executive Council, the Attorney-General and Luke Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264.
NEC and Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264.
Tulom Abai and 765 others v. The State (20/12/95) N1402.
Michael Gene v. Hamidian-Rad [1999] PNGLR 444.
AGC (Pacific) Limited v. Sir Albert Kipalan & Ors (24/02/00) N1944.
Koitaki Farms Ltd v. Kemoko Kenge & Ors (2001) N2143.
Anderson Agiru v Electoral Commission and The State (2002) SC687.
Ace Guard Dog Security Services Ltd v Yama Security Services Ltd & Linday Lai Lai (2003) N2459.
Mark Ekepa & ors v. William Gaupe & ors (re Porgera Landowners Association) (2004) N2694.
Barclay Bros (PNG) Ltd v. The Independent State of Papua New Guinea (09/12/05) SC813.
Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v. University of Papua New Guinea (2005) SC788.
Naima Investments Ltd v. The State [OS 653 of 2006], 28 March 2007.


Overseas Cases cited:


Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273.


Counsels:
Mr. J.A., Griffin, M.M. Varitimos and Mr. F. Griffin, for the Second Defendant/ Applicant/Respondent.
Mr. E. Anderson and Mr. Holingu, for the First Defendant/Applicant.
Mr. I.Molloy, Mr. I. R. Shepherd and Mr. L. Gavara-Nanu Jnr, for Plaintiff/Respondent/Applicant.


5 July, 2007


1. KANDAKASI J: By two separate notices of motions, the Independent Consumer and Competition Commission ("the Commission") and Digicel (PNG) Limited are seeking a dismissal of these proceedings claiming that it is an abuse of the process of the Court or otherwise its frivolous, vexatious, an embarrassment and in breach of O.12 r.40 or O.8 r.27 of the Rules of the Court. They submit that is the case because (1) Telikom has issued more than one lot of proceedings over the same key issues; (2) only one lot of proceedings by originating summons seeking judicial review instead of by way of a writ seeking declaratory orders seeking to nullify a decision of a public authority would have been appropriate and (3) an Appeals Panel established under the Independent Consumer & Competition Commission Act, did determine the key issues raised in these proceedings. Hence, the Commission and Digicel argue that, Telikom is precluded from further litigation by operation of the principles of res judicata or alternative issue estoppel.


  1. Telikom’s response is firstly that, the issuance of the three separate lots of proceedings, do not amount to an abuse of the process of the Court given the particular circumstances in which it issued the separate proceedings. Secondly, given the other relieves it is seeking in these proceedings, judicial review proceedings are inappropriate. Therefore, even though judicial review proceedings have been filed, Telikom has not pursued them. Thirdly, in relation to the res judicata and issue estoppel arguments, it submits that, the Appeals Panel has not determined the key issues and as such those issues have not reached either res judicata or issue estoppel. Accordingly, Telikom argues for a dismissal of the Commission and Digicel’s application and in its stead argues for a dismissal of Digicel’s defence and judgment in favour of Telikom for Digicel’s failure to give discovery. Further and in the alternative, Telikom by another motion is seeking a set of directions aimed at expediting this matter to trial in the event of the Court refusing either or both the Commission and Digicel’s application or that of Telikom itself.
  2. The Commission and Digicel do not contest the alternative application by Telikom for directions. Hence, if we get to that level, it will only be a matter of formality. Digicel however, strongly argues against the application for a dismissal of its defence for its failure to give discovery. It maintains an argument it earlier put to Telikom that, giving any discovery is too premature and an unnecessary costs running exercise especially, when Telikom did foreshadow a further amendment to its pleadings which is yet to occur.

Relevant Issues


  1. From these arguments, the following issues are present for the Court to determine:

Factual Context


  1. The relevant facts giving rise to these issues are not much in contest between the parties. They are essentially set out in my earlier decision dismissing Telikom’s application for injunctive orders, the oral version of which I delivered on 18 May with the written version delivered on 22 June 2007.
  2. As may be apparent from that decision, this case arises out of a decision the Government of Papua New Guinea (PNG) made to allow competition in the mobile telecommunications industry in the country. That was after many years of Telikom’s monopoly in the industry amongst others. Under its enabling legislation the Independent Consumer and Competition Commission Act 2002 (the ICCC Act), the Commission regulates the industry and can enter into regulatory contracts with parties other than Telikom.
  3. On 27 March 2007, the Commission issued Digicel with a Public Mobile Licence. Clauses 3.1 and 3.2 of the Licence, state the commencement date for the Licence as 17 October 2007, or such earlier date, (not being a date prior to 1 May 2007) as shall be agreed between the Commission and Digicel. However, under an earlier regulatory contract between Telikom and the Commission, the Commission agreed not to issue any licence under the Telecommunications Act to any person, other than Telikom, before 16 October 2007. Clause 11 of the regulatory contract between Telikom and the Commission allowed for variations to that contract by written agreement between Telikom and the Commission. In pursuance of the NEC decision, the Commission informed Telikom by letter dated 11 January 2006, of the precise terms of a proposed variation to the regulatory contract, which included a provision to end Telikom’s mobile monopoly by 31 March 2007. By letter dated 20 February 2006, Telikom accepted the terms of the proposed variation but added three conditions. The first condition required advance notice to Telikom of the terms and conditions and regulations to apply to competitors. The second condition required fair competition with specific emphasis on provision of mobile services in remote areas. The final condition required Telikom’s competitors to meet similar technical and safety standards as Telikom. By letter dated 24 February 2006, the Commission accepted the conditions put forward by Telikom. On 8 March 2007, the Commission published a notice of variation to regulatory contract in the National Gazette, by which it was made clear that Telikom agreed to the issuance of mobile telecommunication carrier licenses to persons other than Telikom as of 31 March 2006.
  4. Telikom did not accept that the regulatory contract was varied with its agreement. In furtherance of its position, Telikom issued these proceedings only against the Commission, without naming Digicel and the other company even though those companies stood to lose if Telikom’s action succeeded. On Digicel’ application, I ordered that party to be joined as a party despite Telikom’s strong objection as I was of the view that Digicel ought to have been named from the very beginning because its interest was obviously going to be affected. In its now amended statement of claim, Telikom asserts that, it did not agree with the Commission to any variation to the regulatory contract because the Commission did not meet the three conditions it put forward and were accepted by the Commission. Telikom therefore seeks a declaration that, the Commission may not grant or purport to grant any licence under the Telecommunications Act, or any other legislation to any person other than Telikom, before 17 October 2007.
  5. Bearing the above factual background, in mind I turn to the issues raised before me in the order presented. I will deal with the first and second issues together as it is easy to do so. Then I will turn to a consideration of all the other issues in the order presented either on their on or a combination of them.

What are the key or main issues?


  1. From the above factual background, I noted in the decision dismissing Telikom’s application for injunction that, the arguments of the parties centred on the validity of the variation to the regulatory contract and the grant of the mobile carrier licenses to Digicel and Green Communications Limited. That in turned centred around the issue of whether Telikom consented to the variation and if so whether it was on conditions as argued for by Telikom? Then if it was on conditions, what were those conditions and, were those conditions met?
  2. In the context of determining whether or not, serious legal issues were presented to be determined in the substantive proceedings then and now before me in order to decide whether or not to grant the interim injunctive orders Telikom argued for, I noted that, the following issues were agreed to as the relevant issues for determination by the Court:

"(a) Have the ICCC and Telikom agreed within the terms of the Regulatory Contract to vary the Regulatory Contract?

(b) Without limiting paragraph (1) have the ICCC and Telikom agreed within the terms of the Regulatory Contract to vary the period stipulated in clause 10.1(a) of the Regulatory Contract to vary the period stipulated in clause 10.1(a) of the Regulatory Contract during which the ICCC may not issue a license under the Telecommunications Act or any other applicable legislation that permits any person other than Telikom to operate as a mobile carrier?
(c) If "yes" to paragraph [a] –

(i) to the satisfaction of Telikom; or

(ii) at all?


(d) In light of the answers to the foregoing –

(e) Having regarding to clause 10.1(a) of the Regulatory Contract, whether the ICCC may, prior to 17 October 2007, issue a license under the Telecommunications Act or any other applicable legislation to operate as a general carrier or mobile carrier permitting the licensee to commence operations on or after 17 October 2007?"


  1. As I noted in that decision, the joinder of Digicel, introduced the additional issues of estoppel by conduct levelled against Telikom by Digicel and vise versa. I also noted that the parties agreed that the key issue in this case is whether the regulatory contract of 2002 was properly varied so as to allow for competition in the mobile telecommunications industry earlier than 17 October 2007? At the same time, I noted that the other issues such as damages claim by Telikom were consequential or dependant on a determination of the key question and could not stand on their own. Hence, if the main issue got determined against Telikom the rest of the issues would be rendered as meaningless.
  2. All of these issues remain to be resolved. Meanwhile, through Digicel and the Commission’s applications, it has come to the notice of the Court that, Telikom had taken out OS 927 of 2006. In those proceedings, Telikom, seeks a judicial review of Commission’s decision to issue the two additional licenses to Digicel and Green Communications and a declaration that, the decision is null and void. Telikom also seeks orders prohibiting the Commission from issuing any new mobile carrier licenses or any other action pursuant to the decision, the subject of those and these proceedings.
  3. Then in April this year, well before the hearing and decision on Telikom’s application for an interim injunction, Telikom applied to the Appeals Panel under s.182A of the ICCC Act under two separate applications, both dated 26 April 2007, challenging the validity of the mobile carrier licences issued, or to be issued, by the Commission to Digicel and Green Communications. One of those applications directly challenged the Commission’s decision "to issue public mobile telecommunications licences to" Digicel and Green Communications and sought a declaration that the "decision to issue public mobile telecommunications licences to Digicel (PNG) Ltd and Green Communications ..." was "null and void and of no effect" and therefore sought a quashing of the decision and further or in the alternative that "the matter be remitted to the Commission for reconsideration having regard to the findings of the Appeals Panel."
  4. From the submissions of all parties before the Appeals Panel, it is clear that the very issues raised in these proceedings were the subject of arguments for a decision before the Appeals Panel, constituted by a Mr Rodney F.Shogren. Mr Molly of Counsel before me and the Appeals Panel for and on behalf of Telikom accepts that was the case. Telikom’s only argument through counsel is that, although all of the parties fairly argued all of the issues before the Appeals Panel, the Appeals Panel failed to determine the issues presented and argued before him. As for the OS 927 of 2006, learned Counsel for Telikom submits that those proceedings were issued by different lawyers for and on behalf of Telikom and prior to the issue of the mobile carrier licenses. Hence, those proceedings were not seriously pursued and could easily be withdrawn.
  5. In these circumstances, I have no hesitation in arriving at the conclusion that, all of the three proceedings raise the same key question of the validity of the variation of the regulatory contract, any conditions for the variation and fulfilling or meeting any such conditions and the validity of the issuance of the licenses in favour of Digicel and Green Communications. The other issues presented are dependant on the key and or main issues and as such, they cannot stand on their own. If the key issues get decided in favour of Telikom, the consequential issues will stand. The opposite will be the case if the key issues get resolved against Telikom.

Abuse of the Process


(a) Duplication of Proceedings


  1. Having arrived at the finding that, all of the three proceedings raised the same issue, it is now appropriate to consider the question of whether that amounts to an abuse of the process of the Court, which is one of the reasons for Digicel and the Commission claiming that Telikom has abused the process of the Court.
  2. The law in relation to the abuse of the processes of the Court is well settled in our jurisdiction. The five men Supreme Court in The National Executive Council, the Attorney-General and Luke Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264, defined what could amount to an abuse of the processes of the Court in the context of O 16, r 2 in the following terms:

"Order 16, r (2) does not make any distinction between declarations or injunctions as a remedy for infringement of a right protected under public law as opposed to those under private law. The distinctions in O 16 relate to the nature of remedies set out in sub-rule 1, which provides judicial review as the exclusive procedure and declaration or injunction under sub-rule (2) which provide for optional procedure.


An abuse of the process of the court may arise where in an application for a remedy under O 16 r (1) a party can also obtain a declaration or injunction but does not do so and subsequently applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 as well as constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis."


  1. Many cases have since adopted and applied these principles. They even go on to make it clear that the Court has an inherent power to protect its processes from being abused. The Supreme Court in Anderson Agiru v. Electoral Commission and The State (2002) SC687 summarized the principles that are to be applied when the Court is considering whether or not there has been an abuse of its processes. The Court stated:

"Those principles in essence are that, the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process."


  1. At the same time the Court adopted and applied what O’Leary AJ said in The State v. Peter Painke [1976] PNGLR 210. There His Honour said:

"... mere motive, however reprehensible, will not be sufficient’ (to constitute abuse of process) ‘it must be shown that, in the circumstances in which the interposition of the court is sought, the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others, whether legal or equitable."


  1. In the Agiru case, Mr. Agiru was a former member of the Parliament. He was dismissed from office on account of misconduct in office. That was on the recommendation of a leadership tribunal which found him guilty. He applied for a judicial review of the decision of the leadership tribunal, which the National Court declined. He sought leave of the Supreme Court for an appeal against the refusal of leave by the National Court, which application the Supreme Court also refused. Subsequently, Mr. Agiru, went back to the Supreme Court in separate proceedings seeking to enforce his basic human rights which he claimed, were breached by the leadership tribunal. The Supreme Court found those proceedings as an abuse of the Court’s processes and dismissed them. In so doing the Court said:

"The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding."


  1. The foregoing and other relevant authorities on point make it clear that the Court has an inherent power to safe guard against an abuse of its process. This is for a very good reason, which is to avoid multiplicity of proceedings, which means a multiplicity of costs to the parties and the unnecessary taking away of the Court’s precious and limited time. This was highlighted by Kapi DCJ (as he then was) in National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135 and cited with approval in Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425 in a context of a declaratory orders being sought. There His Honour said:

"Any declaration is not able to settle the dispute. The plaintiff intends to make a claim for damages. The plaintiff may take action against Mr Griffin for breach of trust. The issues sought in the declaration could be raised in these actions.


If I were to grant the declaration sought, I would be deciding the whole dispute between the parties in a piecemeal manner. That is to say, the parties would now get certain questions of fact and law decided. That would hardly resolve the dispute between the plaintiff and the first defendant. If the declarations were granted in its favour, the plaintiff would continue with a claim of damages or account of profits in a separate action. This would not only escalate costs to parties but also encourage multiplicity of proceedings before the court. In my view, this should be discouraged in this jurisdiction. Litigants should be encouraged to bring all matters in a dispute in the one action to avoid a multiplicity of proceedings. An appropriate method of resolving all the issues would be by way of a writ. This would allow for proper pleading of all facts and issues of law for determination by the court."


  1. The principles on abuse of the process of the Court are also necessary for the important purposes of ensuring that no party goes to the Court more than one time over the same issues or relief either after having failed or succeeded in an earlier action or at the same time. There must be only one action out of one cause of action. Such an action must raise all of the issues arising out of the cause of action as well as all of the reliefs open to an affected party. Therefore, it is improper and inappropriate for a party to divide or piece meal his or her cause of action and the reliefs available to him or her.
  2. In this case, Telikom issued and maintained concurrently the proceedings under both OS 927 of 2006 and these proceedings seeking the same kinds of reliefs over the same cause of action. Then whilst these proceedings were receiving the Courts attention through the various interlocutory applications and mentions, Telikom issued the proceedings before the Appeals Panel under the ICCC Act, which made its decision on 24 May 2007. In my view, this is analogous to what happened in the case of William Duma v. Yehiura Hriehwazi and Pacific Star Limited Trading as "The National" (14/04/04) N2526. There, The National failed to file and serve its defence to a defamation suit against it within the prescribed time limits. The National therefore made an application for leave to file and serve its defence out of time, which the Court refused and the Court entered default judgment for Mr. Duma. That resulted in an appeal to the Supreme Court. Whilst the appeal was pending The National applied to the National Court for a set aside of the default judgment. When the application came before me, I took the view that, that amounted to an abuse of the process of the Court because that application was in fact a duplication of the appeal that was pending before the Supreme Court raising the same issues they raised in the application for set aside before the National Court. Accordingly, in the particular circumstances of this case, I have no difficulty in coming to the conclusion that Telikom has clearly abused the process of the Court.

Abuse of Process


(b) Commencing Proceedings by Writ of Summons


  1. I now turn to Digicel and the Commission’s other reasons for arguing that these proceedings are an abuse of the process of the Court. That reason centres around the mode Telikom has used to commence these proceedings. Digicel and the Commission argue that the proper mode of commencing the proceedings was by Originating Summons seeking judicial review of the decision of the Commission to issue and the eventual grant of the mobile carrier licenses to Digicel and Green Communications, which was a decision made by a public authority and not by way of a writ of summons. In support of that argument, Digicel and the Commission rely on O 16 r 1 of the National Court Rules, which is in the following terms:

"An application for an order in the nature of mandamus, prohibition, certiorari, or quo warranto shall be made by way of an application for judicial review in accordance with this Order."


26. This provision has been the subject of a number of decisions of both the Supreme and National Courts. The decision of the Supreme Court in Michael Gene v. Hamidian-Rad [1999] PNGLR 444 authoritatively, settled the law. There, the Supreme Court having regard to the particular wording in O16 r 1, held that where a party is seeking an order in the nature of a prerogative writ, the proper procedure to use, is the procedure under Order 16 of the National Court Rules, which the Court said was "an exclusive procedure provided by the rules." In so deciding, the Court did not follow the much earlier decision in NEC and Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264, although it considered that decision in detail. In that case, the Supreme Court held that a party affected by the decision of a public authority had a choice to proceed by way of judicial review under O 16 for declaratory order or under O 4 r 3 of the National Court Rules. Since then, the decision in the Hamidian-Rad case has been followed.


27. Counsel for Digicel has ably drawn my attention to my ex tempore decision in Naima Investments Ltd v. The State [OS 653 of 2006], 28 March 2007, where I said as follows:


"When someone wants to look at and challenge decisions made by inferior courts or by administrative authorities, the correct procedure to go by is Order 16. This Court should not be unnecessarily laboured with all manner of applications to effectively review and come to impose decisions on administrative or lower court decision makers. They should be allowed to make the decision and the decision should be given the proper effect except on a good case being made out and comes through in the correct way. And the correct way is the judicial review process."


  1. In this case, Telikom is through these proceedings seeking a number of declaratory orders against the decision of the Commission the subject of these proceedings as well as the judicial review proceedings under OS 927 of 2006 and the Appeals Panel under the ICCC Act. Telikom has done what the Supreme Court in NEC and Lucas v. Public Employees Association of Papua New Guinea (Supra) case said should not happen. There, the Supreme Court said:

"An abuse of the process of the court may arise where in an application for a remedy under O 16 r (1) a party can also obtain a declaration or injunction but does not do so and subsequently applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 as well as constitute multiplicity of proceedings."


  1. Having regard to all of the above, it was incumbent on Telikom to issue only one lot of proceedings seeking all of the remedies it is and has sought in the three different proceedings. Of the three, the correct procedure available to Telikom is the judicial review procedure under O16, which is an exclusive procedure, going by the decision of the Supreme Court in the Hamidian-Rad case. Telikom has in fact issued proceedings under O 16 but has not pursued them. There is no convincing reason provided as to why the exclusive procedure under O 16 could not be properly pursued. If it was urgency Telikom was after or a determination of the key question in the proceedings, there is no reason why the proceedings under O 16 could not be expedited. The only impediment there might have been is the need for Telikom to exhaust all available remedies.

30. However, such an argument or suggestion has to be seen from the view point of what steps Telikom has in fact taken and is saying. It took out both the proceedings under OS 927 of 2006 and this writ of summons proceeding. Telikom says it decided not to pursue the judicial review proceedings because, although a decision was made to issue mobile telecommunication licenses to Digicel and Green Communication, no license was in fact issued. It also argues that, that being the case it could not lodge an appeal against the Commission’s decision until the Commission has in fact issued Digicel and Green Communication with the actual licenses. Telikom goes on to argue that, once the Commission did in fact issue the license in question, it gave rise to the need for it to immediately lodge an appeal to the Appeals Panel to avoid adverse consequences following against it so it appealed to the Appeals Panel.


  1. I am not persuaded by Telikom’s arguments. If Telikom is correct in the first part of its arguments it only confirms the view that there was no impediment to Telikom pursuing its judicial review proceedings under OS 927 of 2006 because there was no available remedy for it to pursue. With regard to the second part of Telikom’s argument, if Telikom is right, it has now exhausted the available remedy which was to take its grievances to the Appeals Panel. Now that, the Appeals Panel has made its decision, there should be no impediment for Telikom to proceed to judicial review under O.16.
  2. Taking into account all of the above, I am of the view that Telikom has abused the process of the Court in issuing all three proceedings all at the same time or with knowledge of the existence of the other proceedings. The proceedings now before me were issued after OS 927 of 2006 had been issued and were in existence. Then while these proceedings subsisted, Telikom issued the proceedings before the Appeals Panel, which has come to a decision. Through the proceedings now before me, Telikom is in effect going to ask the court to reconsider the issues that were argued and or presented before the Appeals Panel, which is a public authority established by statute under the ICCC Act. That cannot be, except, through an appeal or a review. Accordingly, I am persuaded in all of the circumstances that I should dismiss these proceedings and I would so order.

Res Judicata and Issue Estoppel


  1. The fact that, Telikom, instituted and had already gone before the Appeals Panel under the ICCC Act, which has already dealt with Telikom’s appeal gives rise to the other important issue of res judicata and issue estoppel. Digicel and Green Communication argue that the key issues raised in these proceedings have reach res judicata or issue estoppel when the Appeals Panel delivered its decision. Telikom, in response argues to the contrary arguing that the Appeals Panel has not determined the main and or key issues.

(a) Res Judicata


  1. This is not the first time the principle of res judicata is being raised before me. I had on many previous occasions had to come to deal with the relevant principles. One occasion on which I had to consider and apply the principles of res judicata was in the case of Koitaki Farms Ltd v. Kemoko Kenge & Ors (2001 N2143. That was in the context of a District Court decision on the same issues then before the National Court. There, I stated the relevant principles in these terms:

"It is settled law that once a court of competent jurisdiction has determined an issue as between two parties, neither of the parties is at any liberty to issue fresh proceedings raising the same issue again."


35. I drew support from the decision of Gibbs J in The Administration of the Territory of Papua and New Guinea v. Doriga Guba [1973] PNGLR 603 at page 696, where his Honour sets out the principles governing the issue of res judicata, in the following terms:


"Thus in a recent case, Carl Zeiss Stiftung v Rayne & Keeler Ltd (No 2) [1967] 1 AC 853, Lord Guest said, at p.933: ‘The rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res Judicata, p.3)’. The use of the phrase ‘judicial tribunal’ in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative: see Caffoor v Commissioner of Income Tax, Colombo [1961] AC 584 at pp.597 to 599, per Lord Radcliffe. A fairly obvious example is the case of a court martial, whose sentence might in some circumstances be pleaded as an estoppel (Hannaford v Hunn) (1825) 2 T. and P.148 at p.155, although not made in the exercise of judicial power (cf. R v Bevan; Ex parte Ellias and Gordon [1942] HCA 12; (1942) 66 CLR 452, at pp.466-46; R v Cox; Ex parte Smith [1945] HCA 18; [1945] 71 CLR 1, p.23. The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.

...

In Carl Zeiss Stiftung v Rayner & Keeler Ltd. No. 2(supra), at pp.909-910, Lord Reid said that it ‘is clear that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties and of subject matters in the former and in the present litigation.’"


36. I also had regard to the decision of my brother Justice Sakora in AGC (Pacific) Limited v. Sir Albert Kipalan & Ors (24/02/00) N1944. There His Honour said:


"In this respect it is useful to note for our present purposes (and assistance) the impact of the Australian High Court Decision in Port Melbourne Authority v Anshun Pty Ltd (1981) HCA, which is that a party would be estopped from bringing any further action that arises out of the same subject matter as an earlier action. This decision emphasizes the importance of the doctrine of res judicata, as operating to prevent prejudice and unfairness to a party, more particularly a defendant, being burdened and saddled with multiplicity of allegations and claims to answer. The doctrine also operates to confirm the twin doctrines of finality and certainty in judicial decision making process."


37. Further, I had regard to the decision of Justice Sheehan in Tulom Abai and 765 others v The State (20/12/95) N1402, expressed the principle in simple terms in these words:


"It is simple law that a claim that has been tried in a Court of Law and a decision lawfully made on it cannot be tried again in respect of the same matters.


The legal term for this is res judicata which means ‘the matter is decided’. That is, a final judgment by a competent Court on the merits of a claim has been made and is conclusive – final – as to the rights of the parties and those claiming through them. Such a decision is a bar to any new action involving the same claim or cause of action."


  1. As will be apparent from the foregoing discussion, the rationale behind the principles of res judicata is to bring about finality in litigation and to avoid multiplicity of proceedings. This is a very important principle for the good of both the litigating public and the society which funds the court systems because, the principle saves a lot of time and costs for all involved. This is however, subject only to the right of an aggrieved party to appeal against any decision, where such a right is given, or judicial review. Given the importance of principles of res judicata, the principles extends to and applies to all decisions of a court as well as other tribunals however constituted, which are empowered and do come to a final decision on an issue or dispute between two or more disputing parties. The authority to hear a dispute and arrive at a final decision may be based on statute or by the consent of the parties as in the case of arbitration. Where the decision maker is created and empowered by statute the presumption is usually in favour of the principle of res judicata applying in respect of a decision by such an authority, unless there is a clear exclusion of that presumption: See Thrasyvoulou v. Secretary of State for the Environment [1990] 2 AC 273 at 289, per Lord Bridge.
  2. In the present case, the ICCC Act creates the Appeals Panel. It is given the power to review any decision of the Commission and arrive at a wide range of decisions including the power to either affirm or otherwise nullify the decision of the Commission. There is no dispute that, the Appeals Panel is empowered by the ICCC Act to make a final decision and as such the principles of res judicata apply to the decisions of the Appeals Panel. This is not surprising, given authorities such as the most earliest one in our jurisdiction in the case of the Administration of the Territory Papua and New Guinea v. Guba and Doriga (supra), which concerned a decision by the Land Board established under the than Land Ordinance. The issue there was, whether the Land Titles Commission was bound by the determination of the Land Board in relation to certain land, the subject of the proceedings. The High Court of Australia held that the Land Titles Commission was bound by the earlier decision of the Land Board.
  3. What remains for this Court to determine is whether, the Appeals Panel determined the issues in these proceedings. Before proceeding any further, I remind myself of my duty here in terms of what the Supreme Court said in Barclay Bros (PNG) Ltd v. The Independent State of Papua New Guinea (09/12/05) SC813, that I have no authority to interpret and resolve any ambiguity or the correctness or otherwise of the Appeals Panels decision. I can only determine what the Appeals Panel decided if it is apparent from the decision and reason for the Appeals Panel’s decision. With this in mind, I now turn to the issue at hand here.
  4. Digicel and the Commission argue that the answer the question of whether the Appeals Panel decided the issues in these proceedings should be in the affirmative, whilst Telikom makes a contrary submission. Telikom points particularly to paragraphs 49 to 50 of the Appeals Panel’s decision and generally refers to paragraphs 36, 38, 40 to 46, 48 to 50 and 53 and 54 of that decision.
  5. A careful consideration of each of the paragraphs referred to and the whole body of the Appeals Panel’s decision makes it clear that the Appeals Panel arrived at the following decision which is stated in the very first page of the decision:

"1. The decision of the Independent Consumer and Competition Commission to make a declaration concerning licence conditions under s 63(1)(c) of the Telecommunications Act 1996 is confirmed.


2. The decision of the Independent Consumer and Competition Commission to issue public mobile telecommunications licences to Digicel (PNG) Ltd and Green Communications Ltd under s 57 of the Telecommunications Act 1996 is confirmed."


  1. Then in the following pages from paragraph 1 to 58, the Appeals Panel provides its reason for the decision it arrived at in terms of the above. Turning specifically to the paragraphs mentioned in Telikom’s submissions, I note that paragraph 36 is a statement of the issues before the Appeals Panel. Paragraphs 38 and 40 through to 44 is a restatement of the parties namely, Telikom’s and the Commission’s arguments before the Appeals Panel. The next paragraph, paragraph 45 is a restatement of what the Appeals Panel worked out to be the issues with regard to the publication of the purported variation of the regulatory contract and whether the regulatory contract was varied in accordance with the requirements of s. 35 of the ICCC Act.
  2. Paragraph 46 appears to be the Appeals Panel’s decision. That paragraph reads:

"I am inclined to prefer Telikom’s submissions, which is that the regulatory contract was ‘issued’ in 2002 and that if, contrary to Telikom’s view, it has been varied, then that variation was made under the terms of the contract itself, which is indeed what the Gazette Notice says; and that the Gazette Notice is notice of variation having been made rather than issuing of a variation under s. 35 of the ICCC Act. Nor am I convinced that s. 43 of the ICCC Act gives right of appeal by Telikom to the Appeals Panel against amendment of the regulatory contract, since the contract in its terms can only be varied by agreement."


  1. It is clear to me that the Appeals Panel in this paragraph decided that if contrary to Telikom’s submissions, there was a variation of the regulatory contract, it was varied not in accordance with the provisions of either s. 35 or s.43 of the ICCC Act, but under the terms of the contract. Then in paragraph 47 of its decision, the Appeals Panel said, if it was required to take judicial notice of the Gazette, then Telikom’s application for a review of the Commission’s decision to issue public mobile telecommunication licenses to Digicel and Green Communication must fail. At the same time the Appeals Panel said, in case it is not required to, it will consider Telikom’s further submissions.
  2. Then immediately thereafter in paragraph 48, the Appeals Panel noted that any decision it makes in respect of the issue of licenses would be subject to the decision of the National Court in these proceedings. The Appeals Panel also noted that, if it were to make a decision after this Court’s decision, the Appeals Panel’s decision could not be inconsistent with the decision of the Court. At the same time however, the Appeals Panel said "I have taken the view that the Telecommunications Act requires me to make my decision within four weeks of the relevant application for review being lodged." So it decided at paragraph 49 of its decision that:

"In the circumstances, I consider that I should confirm the Commission’s decision to issue the licenses. This has the effect of maintaining the status quo, leaving the question to be decided by the Court."


  1. The Appeals Panel said it was of the same view in relation to the question of whether or not it should stay the operations of the licenses the Commission had issued. Unfortunately, the Appeals Panel did not specify what question it was effectively leaving it to this Court to decide. Telikom argues what the Appeals Panel decided to leave for this Court to decide are the very issues in these proceedings. Digicel and the Commission on the other hand submit that despite what the Appeals Panel said in paragraph 49 of its decision, the Appeals Panel in fact determined the very issues in these proceedings. In support of that submission Digicel and the Commission drew the Courts attention to paragraphs 51 to 59 and the actual decision set out in the opening page of the Appeals Panel’s decision, which I set out above in full at paragraph 35.
  2. Paragraphs 51 to 59 of the Appeals Panels decisions is in the following terms:

"51. In the even that for some reason these matters are not decided by the Court, and in any case because it appears that, if the applications are valid, I should decide the matters they raise, I have reached views on the material before me.


  1. I consider that the issuing of licenses prior to 17 October 2007 that do not permit operations until 17 October 2007 is not inconsistent with the unamended regulatory contract. In my view the intent of Clause 10.1 was to prohibit competition before 17 October 2007. Issuing a license before that date so that a new operator could take preparatory actions with a view to commencing operations on that date is reasonable and consistent with the objectives set out in s 5 of the ICCC Act. Telikom;s economic interests are not affected until the monopoly period expires. It is also consistent with the natural meaning of the words of the clause. If the intention were to prevent preparatory work being carried out before 17 October, and hence to postpone any competitive activity until some considerable time after 17 October, I would expect the regulatory contract to have made that explicit.
  2. If the regulatory contract has been amended subject to the conditions claimed by Telikom, then I consider that the issuing of the licenses is not inconsistent with those conditions. I consider that all three conditions go to Telikom’s interest in regulation not favouring new entrants. In respect of Condition 1, having examined the materials, I am satisfied that, in advance of the new licensees commencing operations, Telikom has been provided with full details of the terms and conditions and regulations to be applied by the Commission, and that that is sufficient to meet the condition. In respect of Condition 2, I consider that the fact that the new licensees face the same regulatory obligations as Telikom is sufficient. Telikom is not subject to a situation where it must provide services in uneconomic areas to the benefit of competitors who are not obliged to do so. In respect of Condition, Telikom has been assured that it will be required to meet similar technical and safety requirements as those required of its competitors. This meets the condition. I do not accept that the condition requires that all such requirements be determined and promulgated prior to the issue of licenses.
  1. In the light of these findings, I do not need to reach a view about whether the regulatory contract has in fact been amended as set out in the Gazette Notice of 8 March 2007. It if has, the application must fail. If it has not, I consider the application fails in any case. And if it has been amended subject to Telikom’s conditions, then again I consider that the application fails.
  1. I do not consider that Telikom’s submission that the declaration is in breach of Clause 15.3 of the regulatory contract has merit.
  2. Telikom also argued in respect of its Application No. 1 that, if the regulatory contract has been amended as argued by the Commission, then the amended contract contains the conditions referred to above and the declaration is inconsistent with those conditions. As already mentioned, the questions whether the regulatory contract has been amended and the status of any conditions on that amendment are before the National Court. It is conceivable that the Court will hold that the regulatory contract has been amended subject to the conditions that Telikom asserts (so that the conditions are part of the amended regulatory contract) but that nevertheless the issue of the licenses stands. Thus it is arguable that the question still faces the Appeals Panel whether the declaration is inconsistent with the amended regulatory contract containing conditions.
  3. In any case, I consider it best to decide whether the declaration is inconsistent with the conditions. The focus is on Condition 2. For the reasons set out above, I do not consider that the declaration is inconsistent with this condition. In addition, I do not consider that the fact that the declaration does not set out means of resolving disputes renders the declaration in any way unfair to Telikom.
  4. It remains to consider whether the making of the declaration is in breach of s 65 by reasons that insufficient consultation took place. On the materials before me I consider that meaningful consultation took place over a considerable period. There is no reason to take the view that only consultation after the Commission provided a draft of the declaration to Telikom on 14 December 2006 is relevant. Consultation before that date is also relevant. Nevertheless, it is telling that Telikom did not dispute the Commission’s statement that Telikom did not respond to the December 2006 proposal and that the Commission waited three months before making the declaration. The Commission could be under no obligation to refrain from making a declaration merely because Telikom chose not to respond."
  1. If we view paragraph 49 of the Appeals Panel’s decision in isolation of the other parts of the decision, especially, those noted above, there would appear to be some basis for Telikom’s arguments. Taking such an approach would be inappropriate as that would omit a consideration of the rest of the reasons for the Appeals Panel’s decision. Further, even if we could safely take paragraph 49 in isolation, there would still be some uncertainty as to what questions did the Appeals Panel left for this Court to decide. There is certainly ambiguity in the last line of paragraph in question. That is a matter I have on the basis of the decision in Barclay Bros (PNG) Limited case, no jurisdiction to interpret and correct, nor comment on the correctness or otherwise of it. That is matter for another Court or authority for another time and at another place.
  2. The correct approach is to consider the whole of the Appeals Panels reasons for decision, especially as per the part of the judgment noted and quoted above. When we do that, it becomes obvious that, the Appeals Panel was initially reluctant at paragraph 49 of its decision to deal with the arguments and the submissions since the matter was in the National Court. However, at paragraph 51 of its decision, the Appeals Panel accepted that, the applications Telikom lodged before it were valid and that it had a duty to hear and determine them and proceeded to do so.
  3. At paragraph 52, the Appeals Panel found that the issuance of the licences to Digicel and Green Communication prior to 17 October 2007 but not operational before that date was in order, in the absence of expressed exclusion of such an issuance of license. Then at paragraph 53, the Appeals Panel decided that the three conditions Telikom put forward to the Commission in return of Telikom’s consent for a variation of the regulatory contract had in fact been satisfied. The Appeals Panel also addressed the issue of estoppel by conduct raised by Telikom in response to Digicel raising that defence against Telikom.
  4. The main or key issues before the Appeals Penal, as it is before this Court, centres around Telikom consenting or not consenting to an amendment to the regulatory contract and if it did consent, whether that was on conditions and if it was on conditions, whether the conditions were met. I find that, the Appeals Panel determined these key issues at the instance of Telikom whilst these proceedings were still on foot. The issue of estoppel by conduct raised by Digicel and Telikom against each other was also addressed and determined against Telikom by the Appeals Panel. Accordingly, I find that, it is now not open for Telikom to re-litigate the same issues before this Court. To allow it to do so will offend against the principles of res judicata and public policy reasons behind those principles. Telikom is not without any recourse. It could either appeal or go for a judicial review as may be the case under the relevant and applying legislation. For these reason, I would dismiss the proceedings now before me.

Issue Estoppel


  1. Further, if for whatever reason, the principles of res judicata do not apply, I would still dismiss these proceedings on the basis of issue estoppel. My brother Justice Cannings succinctly restated the relevant principles on issue estoppel in the case of Mark Ekepa & ors v. William Gaupe & ors (re Porgera Landowners Association) (2004) N2694 in these terms:

"The principle of issue estoppel is closely related to res judicata. It is a sub-set of res judicata. To establish the defence of issue estoppel a party only has to show that an issue of fact or law or mixed fact and law has been authoritatively and finally determined in a previous case. The cause of action does not have to be the same. Nor do the parties."


  1. In this case the main or key issues as noted in the foregoing was determined by the Appeals Panel. That decision was arrived at after the parties, namely, Telikom and the Commission placed all of the evidentiary material and submissions before the Appeals Panel, and the Appeals Panel carefully considered all of the evidence and submissions before it. There is no issue taken by Telikom that, the main or key issues were argued fully before the Appeals Panel. The only issue Telikom takes is that, the Appeals Panel did not decide the key and or main issues, which argument I have already found or decided against Telikom. Hence, in my view, the key issues and the issue of estoppel by conduct are no longer live and open for consideration either by this or any other court except by way of appeal or review against the decision of the Appeals Panel.

Summary


  1. In summary, I find that there are three good reasons to dismiss these proceedings and I am so ordering. The reasons, first, is that, the same key issues that are raised in these proceedings are raised in OS 927 of 2006, and the applications by Telikom brought before the Appeals Panel. This amounts to an abuse of the process of the Court. Secondly, Telikom has abused the process of the Court by choosing to proceed by way of writ of summons seeking mainly a declaration and consequential reliefs against the decision of the Commission which is, a public authority. That brings into play the provisions of O 16 r 1 of the National Court Rules, which is an exclusive procedure by way of a judicial review that must be commenced by an originating summons and not a writ of summons as in this case. Telikom has indeed issued judicial review proceedings under OS 927 of 2006 but has failed to pursue them. Then in the light of Digicel and the Commission’s application, Telikom indicated a willingness to withdraw those proceedings to avoid a dismissal of these proceedings. The better choice should be a withdrawal of these proceedings and not those under OS 927 of 2006 for the reason I have just given. Finally, the very main and key issues that are raised in these proceedings have been finally determined by the Appeals Panel at the instances of Telikom, whilst these proceedings were on foot. The principles of res judicata and issue estoppel apply to preclude Telikom from re-litigating the issues that have already been determined, through these or any other proceedings safe only, for an appeal if permitted or review of the decision of the Appeals Panel.

Other issues: Failure to give discovery


  1. Having decided to dismiss these proceedings for the reasons just summarized, there is no need for me to consider and determine the other remaining issues. However, I cannot help but express the view that Telikom’s application for a dismissal of Digicel’s defence and for judgment in Telikom’s favour for failure to give discovery by Digicel is an abuse of the process of the Court and without any merit. Accordingly, it should be dismissed and I hereby order its dismissal. The reason for that view and decision is simple. The relevant authorities on point make it clear that the discretion vested in the Court to dismiss proceedings for failure to give discovery can only be exercised where there is a clear default without good reason. After all, a party is entitled to a hearing in its defence before judgment unless that party conducts in a way that shows an intention to deliberately avoid due process for no good reason and avoid a trial and waste the Court’s time.
  2. The recent decision of the Supreme Court in Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v. University of Papua New Guinea (2005) SC788, makes this clear. In that case the learned counsel for Telikom, Mr. Molly successfully argued for the appellant. For reasons only known to the learned counsel, this case was not drawn to my attention. In that case, even though there was clear default of over 11 months, the Supreme Court endorsing Sakora J’s views in Ace Guard Dog Security Services Ltd v Yama Security Services Ltd & Lindsay Lai Lai (2003) N2459 was of that view that default alone is no license to signing default judgment. Instead, a court hearing an application for judgment in default of giving discovery must carefully consider the entire circumstances of the case and important factors such as the likely prejudice to the party relying on the default, the nature and extent of the default, particularly whether the default is "repeated, verging on what could properly be described here as chronic" or where some discovery is given, "it is insufficient or deficient rendering a fair and expeditious trial nigh on impossible, and thereby causing prejudice and disadvantage to the opposing party."
  3. In the present case, Telikom filed and served its notice of discovery after having foreshadowed an amendment to its statement of claim. Discovery comes after the close of pleadings. Here, Telikom had placed Digicel on notice that it was going to amend its pleadings. The proper thing to do in the circumstances was for Telikom to fix its pleadings first before requiring Digicel to give discovery. Requiring a party to give discovery when pleadings are yet to be finalized has the potential of duplicating the discovery process and escalating costs to the parties that may be necessitated by any change in the pleadings. Digicel correctly therefore, in my view declined to give discovery and instead required Telikom to fix its pleadings first. Conveniently, counsel arguing for Telikom failed to have regard to the very arguments he put before the Supreme Court in the Curtain Bros case and what the Court said in that case.
  4. There is no evidence of what prejudice, if any Telikom is likely to suffer because of Digicel’s default apart from some delay which are inevitable given Telikom’s own foreshadowed amendment to its pleadings. There is no evidence before me that the default is continuos and inexcusable and that it will not enable an expeditious hearing and disposal of the case.

Formal Orders


  1. Based on the foregoing, I make the following formal orders:
    1. Telikom’s motion for default judgment in default of Digicel giving discovery is dismissed for being an abuse of the process of the Court and being without merit.
    2. These proceedings are dismissed for being an abuse of the process of the Court and the issues in these proceedings having reached res judicata and or issue estoppel.
    3. Costs of the motions by Telikom, Digicel and the Commission as well as these proceedings shall be paid by Telikom, which costs, shall be agreed within 14 days, if not taxed.
    4. Costs of two overseas counsels for Digicel in relation to the motions by Telikom, Digicel and the Commission are certified.

_____________________________


Blake Dawson Waldron Lawyers: Lawyers for the Plaintiff/Respondent/Applicant.
Gadens Lawyers: Lawyers for the First Defendant/Applicant/Respondent.

Young & Willams Lawyers: Lawyers for the Second Defendant/Applicant/ Respondent.

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