Wilson v Kuburam [2016] PGSC 7; SC1489 (11 March 2016)

SC1489

PAPUA NEW GUINEA
[IN THE SUPREME COURT JUSTICE]

SC REVIEW No. 30 OF 2014

APPLICATION UNDER SECTION 155(2) (b) OF THE CONSTITUTION

BETWEEN

MICHAEL NEWALL WILSON
Applicant

AND

CLEMENT KUBURAM trading as CK Valuers AND REALTORS
Respondent

Waigani: Gavara-Nanu J, Logan & Bona JJ
2015: 31st August
2016: 11th March

JUDICIAL REVIEW – Application for leave to review – Constitution; s. 155 (2) (b) - Jurisdiction of the Supreme Court to review a judicial act – Objection to competency of the application for leave to review – Application for leave to review filed after an application for leave to appeal dismissed for being incompetent – Application for leave to appeal decision of the National Court filed out of time – Applicant and his lawyers not complying with Court orders – Applicant by his conduct allowing the statutory appeal period to run out –Whether the dismissal of the application for leave to appeal by the Supreme Court as the final court of appeal a bar to a subsequent application for leave to review – Constitution; s. 155 (2) (a) - Whether application for leave to review an abuse of process.

Facts

By a writ of summons, the respondent claimed the sum of K35, 280.00, against the applicant and Mr Valentine Kambori for valuation services he performed on a property allegedly belonging to the applicant after Mr Kambori commissioned him to do the valuation. The respondent claimed Mr Kambori was an agent of the applicant at all relevant times and that the applicant had agreed to pay for the valuation. The applicant denied the respondent's claim.

At directions stage, the applicant and his lawyers failed to comply with orders and directions issued by the primary judge, and failed to attend court hearings on return dates. They failed to return numerous phone calls made to them by the respondent's lawyers and also failed to respond to telephone messages and emails by the respondent's lawyers. Such conduct of the applicant and his lawyers subsequently resulted in the judgment being entered for the respondent in the amount claimed with interest.

The applicant filed an application for leave to appeal against the National Court decision to enter judgment for the respondent. However, the application was filed out of time and was dismissed for being incompetent. The applicant then filed an application for leave to review the decision of the National Court to enter judgment for the respondent under s. 155 (2) (b) of the Constitution.

The respondent filed an objection to competency against the applicant's application for leave to review claiming that this Court has no jurisdiction to hear the application because, the Supreme Court which is the final court of appeal as stated under s. 155 (2) (a) of the Constitution had dismissed the same issues raised in the applicant's application for leave to appeal.

Held:

1. The Court has jurisdiction to review the applicant's application for leave to review filed under s. 155 (2) (b) of the Constitution: Application by Anderson Agiru (2002) SC686 and Application by Herman Leahy (2006) SC855 applied.

2. The applicant's application for leave to review should be dismissed because the conduct of the applicant and his lawyers were the main contributing factors to the applicant's application for leave to appeal being filed out of time. No reasonable explanation was given by the applicant for failing to file his application for leave to appeal within time: Application by Jeffery Balakau [1998] PNGLR and Avia Aihi v. The State [1981] PNGLR 81 referred to.

3. (Per Gavara-Nanu and Bona JJ, Logan J dissenting). The conduct of the applicant and his lawyers were dilatory and contumelious which directly resulted in the applicant filing his application for leave to appeal out of time. The applicant's application for leave to review under s. 155 (2) (b) of the Constitution was in those circumstances an abuse of process: Anderson Agiru v. The Electoral Commission (2002) SC687; and The State v. Peter Painke [1976] PNGLR 210 referred to.

4. (Per Gavara-Nanu and Bona JJ). Although abuse of process was not a ground relied on by the respondent seeking to dismiss the applicant's application for leave to review, the issue having been raised in Court and addressed fully by the parties in their respective submissions, the Court in the exercise of its inherent power could decide the issue to protect its processes from being abused: Breckwoldt & Co. (N.G.) Pty v. Gnoyke [1974] PNGLR 106 and PNG Forest Products and Inchcape Berhad v. The State & Jack Genia, Minister for Forests [1972] PNGLR 85 and NAE Limited (1-21320) v. Curtain Bros & Ors – OS 225 of 2014 (12 March, 2014) referred to.

5. (Per Logan J) Even though the conduct of the applicant and his lawyers did not amount to an abuse of process, it was nonetheless so dilatory, particularly given that the applicant was a senior legal practitioner, that the case was not one for the exercise of the discretion to grant leave to review.

6. The applicant to pay the respondent's costs of and incidental to the applicant's application for leave to review. In regard to the respondent's objection to competency of the applicant's application for leave to review, the dilatory and contumelious conduct of the applicant and his lawyers was what really necessitated or forced the respondent to file the objection, thus occasioning the respondent unnecessary litigation and expense. Therefore although the objection to competency had been dismissed, the fair order was for the parties to bear their own costs. Keddie v. Faxall [1955] VicLawRp 44; [1955] VLR 320 and Donald Campbell Co v. Pollack [1927] AC 732; All ER Rep. 1 referred to.

Cases cited:
Papua New Guinea Cases

Ace Guard Dog Security Services Ltd v. Yama Security Services Ltd and Lindsay Lai Lai (2003) N2459
Anderson Agiru v. The Electoral Commission (2002) SC687
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855
Application by Jeffery Balakau [1998] PNGLR 437
Application by Joseph Kintau (2011) SC1125
Avia Aihi v. The State (No.1) [1981] PNGLR 81
Avia Aihi v. The State (No.2) [1982] PNGLR 44
Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106
Coca Cola Amati (PNG) Ltd v. Yanda (2012) SC1221
Curlewis & Reuben Renagi v. Protect Security and Communications Limited and David Yuapa (2013) SC1274
Curtain Bros (PNG) Ltd v. University of Papua New Guinea (2005) SC788
NAE Limited (1-21320) v. Curtain Bros &Ors – OS 225 of 2014 (12th March, 2015)
National Executive Council v. Public Employees Association [1993] PNGLR 264
PNG Forest Products and Inchcape Berhad v. The State & Jack Genia, Minister for Forests [1972] PNGLR 85
Porgera Joint Venture & Placer (PNG) Ltd v. Joshua Siau Yako & Ors (2008) SC916
SCR No. 5 of 1987; re Central Banking (Foreign Exchange and Gold Regulations) [1987] PNGLR 433
Steven Punagi v. Pacific Plantation Timber (2011) SC1153
The State v. Peter Painke [1873] PNGLR 210
Waghi Savings and Loan Society Ltd v. Bank South Pacific Ltd (1980) SC185

Other cases

Bringinshaw v. Bringinshaw [1938] HCA 34; (1938) 60 CLR 336
Donald Campbell Co v. Pollack [1927] AC 732; All ER Rep. 1
Hunter v. Chief Constable of the West Midlands Police and Others [1981] UKHL 13; [1982] AC 529
Keddie v. Faxall [1955] VicLawRp 44; [1955] VLR 320

Counsel

S.Wanis, for the Applicant/Respondent
D.Mel, for the Respondent/Applicant

19th March, 2016

1. GAVARA-NANU J: On 4 February, 2014, the respondent, Mr Clement Kuburam, a qualified valuer, commenced proceeding in WS No. 61 of 2014 against Mr Michael Wilson (the applicant) and Mr Valentine Kambori, claiming K35, 280.00 in unpaid costs for valuation services. It was claimed by the respondent that he had carried out a valuation on a property belonging to the applicant described as Portion 252 Granville Port Moresby, at the instruction of Mr Kambori, who according to the respondent was acting as an agent for the applicant. He further claimed that the applicant undertook to pay for the valuation. The applicant was served with the writ first. Mr Kambori was served later, however he has not filed a notice of intention to defend or a defence. The claim by the respondent was for breach of contract resulting from the alleged failure by the applicant and Mr Kambori to pay his costs.

2. In the defence filed by the applicant to the Statement of Claim, the applicant denied having any association with Mr Kambori. He also denied that Mr Kambori had acted as his agent at the material time, even if Mr Kambori had instructed the respondent to do the valuation as alleged. The applicant denied being aware of any contract between him, Mr Kambori and the respondent for the valuation services.

3. The applicant is a very senior litigation lawyer with many years of experience. He is also a principal of the firm, Warner Shand Lawyers, which is the solicitor on record for the applicant.

4. The case was first mentioned in the National Court on 24 April, 2014. On this day, the respondent appeared by his lawyers. The applicant appeared on his own behalf. The Court issued certain directions on this day, one of which was for the applicant to file affidavits in response to those filed by the respondent. The parties were also ordered to meet no later than 30 May, 2014, to discuss possible settlement. The matter was ordered to return to Court on 3 June, 2014.

5. In the morning of 3 June, 2014, when the case returned to Court, the respondent appeared by his lawyers. The applicant and his lawyers did not appear. As a result the case had to be stood down to 3.00pm that day to give the applicant and his lawyer's further time to appear. Soon after the case was stood down, Steeles Lawyers on behalf of the respondent, emailed Mr Solomon Wanis of Warner Shand Lawyers who had carriage of the applicant's case. Mr Wanis was informed that the case had been stood down to 3pm. The evidence adduced by the respondent shows that Mr Wanis did not respond to the email. Furthermore, neither the applicant nor Mr Wanis appeared when the matter returned to Court at 3.00pm that day, despite them being informed to do so.

6. The relevant orders given on 24 April, 2014, as endorsed in the Court file, form part of the Objection Book (O/B) and they appear at page 43. The orders are:

1. Plaintiff to file and serve affidavit by 20 May, 2014.

2. Defendant to file and serve affidavit in response by 27 May, 2014.

3. Parties to meet in conference by 30 May, 2014.

4. Matter to return to Court on 3 June, 2014.

7. It is common ground between the parties that the meeting ordered to be held by 30 May, 2014, was for them to discuss possible settlement. The applicant and his lawyers failed to appear in Court on 3 June, 2014, and the trial judge was forced to adjourn the case to 10 June, 2014. According to the endorsements in the Court file, the Court on 3 June, 2014, also made certain self-executing orders. The orders were as follows:

1. Matter adjourned to 10 June, 2014.

2. Unless the defendants comply with terms 2 and 3 of the Orders of 24 April, 2014, before close of business on Friday 6 June, 2014 and appear on the abovementioned date to show cause of action taken, shall result in judgment for the plaintiff in the sum of K35,280.00 with interest.

8. In paragraph 9 of the affidavit sworn by the applicant on 13 October, 2014, the applicant confirms that he appeared before Kandakasi J on 24 April, 2014; however he deposes that he was in Court for another matter. He further deposes that he was not aware that the case was made returnable that day, and that when the case was called, he told the learned trial judge that he had no knowledge about any agreement entered into between the respondent and Mr Kambori for the valuation. The applicant denied that Mr Kambori had acted as his agent in relation to the valuation of the property, and told the learned trial judge that the claim by the respondent against him was scandalous. He does however confirm in his affidavit that the case was adjourned to 3 June, 2014. In other words, he was aware that the matter would return to Court on 3 June, 2014.

9. The applicant also confirms in his affidavit that the Court had ordered settlement talks, but he was reluctant to enter into such talks because he considered it to be contrary to his defence. In paragraph 10 of the affidavit, he deposes that on 3 June, 2014, his lawyers "overlooked" that the case was returning to Court that day and had failed to appear. In paragraph 11 of the affidavit, he deposes that he was not aware that on 3 June, 2014, the case was ordered to return to Court on 10 June, 2014.

10. On 10 June 2014, when the case returned to Court, neither the applicant nor his lawyers appeared. As a result, the self-executing orders made on 3 June, 2014, crystallised and became effective against the applicant and Mr Kambori.

11. In paragraph 14 of his affidavit, the applicant remonstrates that because of the serious nature of the self-executing orders, the Court should have, as a matter of courtesy, ordered counsel for the respondent to inform him that the matter would return to Court on 10 June, 2014.

12. On 16 June, 2014, the applicant filed a notice of motion to have the self- executing orders set aside. The motion was set down for hearing on 19 June, 2014, and at least the applicant's lawyers were aware of the hearing date. However, on 19 June, 2014, when the matter returned to Court, neither the applicant nor his lawyers appeared. In paragraph 16 of his affidavit, the applicant says - "my lawyers failed to attend explicitly". As a result, the motion was dismissed for want of prosecution.

13. On 4 July, 2014, the applicant filed another motion seeking to have the orders of 19 June, 2014, set aside. On 9 July, 2014, the Court dismissed that motion stating that the proceeding had already been determined by virtue of the orders of 19 June, 2014, which were final. The Court told the applicant that the correct course for him was to appeal against the Court's decision of 10 June, 2014, which had made the self-executing orders of 3 June, 2014, effective.

14. On 24 July, 2014, the applicant filed an application for leave to appeal the orders of 10 June, 2014. On 10 September, 2014, the application was dismissed by the Supreme Court as it had been filed out of time. In paragraph 19 of his affidavit, the applicant confirms that his application for leave to appeal was 11 days out of time.

15. Against the aforementioned background, the applicant, on 14 October, 2014, filed a further application under s. 155 (2) (b) of the Constitution for leave to have the self-executing orders of 10 June, 2014 reviewed by the Supreme Court.

16. The respondent has in turn filed an objection to competency against the applicant's application for leave to review. The pertinent parts of the objection to competency are in these terms:

OBJECTION is made on the following grounds:

1. A. Pursuant to Orders of this Honourable Court made 10 day of December 2014 and its inherent powers under s. 155 (4) of the Constitution, the Application for Leave to Review filed 14 October 2014 seeking leave to review the decision of the National Court made 10 June, 2014 in proceedings WS 61 of 2014 – Clement Kuburam trading as Ck Valuers and Realtors v. Michael N Wilson and Ors is incompetent because:

(i) the applicant has previously commenced Supreme Court proceedings SCA No. 98 of 2014 seeking Leave to Appeal the very same decision of the National Court made 20 June 2014 and such appeal was dismissed in its entirety by Supreme Court on 10 September 2014;

(ii) it is offensive to s. 155 (2) (a) of the Constitution.

B. Further or in the alternate, pursuant to Orders of this Honourable Court made 10 day of December 2014 and its inherent powers under s. 155 (4) of the Constitution, the Application for Leave to Review is incompetent as it is inconsistent with the nature of the Supreme Court's Jurisdiction under s. 155 (2) (b) of the Constitution in that it fails to come within either one of the three (3) categories of cases where judicial review has been exercised under s. 155 (2) (b) of the Constitution, which are:

a. Where parties have allowed a statutory right of appeal to expire;

b. Where a right of appeal is prohibited by law;

c. Where there is no way of going to the Supreme Court.

C. Further or in the alternate, pursuant to Orders of this Honourable Court made 10 December 2014 and its inherent powers under s. 155 (4) of the Constitution, the Application for Leave to Review is incompetent as the Grounds at para. 2.1 – 2.5 fail to specify with particularity the grounds relied on to demonstrate that they are against the evidence and the weight of the evidence and / or the specific reasons why they are alleged to be wrong in law.

D. Further or in the alternate, pursuant to Orders of this Honourable Court made 10 of December 2014 and its inherent powers under s. 155 (4) of the Constitution, the Application for Leave to Review is incompetent as the Grounds at para. 2.1 – 2.5 relate to matters that were not raised before the learned primary judge in National Court proceeding.

2. Costs of this Objection be paid by the Applicant on a Solicitor/Client basis.

3. Any other Orders this Honourable Court deems appropriate.

17. On 23 June 2014, Mr Henry Vue Hennry of counsel for the respondent from Steeles Lawyers wrote to Warner Shand Lawyers informing them that the applicant's notice of motion which was set down for hearing on 19 June, 2014, had been dismissed for want of prosecution. He advised that the matter was now finalized as a result of the self-executing orders of 3 June, 2014, becoming crystallised and effective on 10 June, 2014. The letter was made to the attention of Mr Wanis and was faxed to Warner Shand Lawyers on the same day.

18. On 18 June, 2014, Mr Hennry swore an affidavit. In paragraph 10 of the affidavit, he deposes that on 3 June, 2014, soon after the case was stood down to 3.00pm, he emailed Mr Wanis at Warner Shand Lawyers' Kanudi office and informed him that the matter had been stood down to 3.00pm to enable the applicant and his lawyers to appear in Court. He further deposes that he sent the same email to the email address of Warner Shand Lawyers at their Gordons office after he was told that their Kanudi office email server was not working (pages 63 and 64 of O/B). Mr Hennry also deposes that apart from sending emails, he called Warner Shand Lawyers' office numerous times by phone to talk either to Mr Wanis or the applicant, but was told by the office secretary each time, that they were out of the office or simply not available. He left messages for them to return his calls but they did not return any of his calls. Annexure "D" to Mr Hennry's affidavit is a copy of the emails sent by him to Warner Shand Lawyers as well as hand-written notes which show that he did make the abovementioned phone calls to Mr Wanis and the applicant.

19. In paragraph 13 of the affidavit, Mr Hennry deposes that on 6 June, 2014, he sent an email to Warner Shand Lawyers advising them of the self-executing orders of 3 June, 2014. He made follow up phone calls to Warner Shand Lawyers to talk to either Mr Wanis or the applicant in order to discuss the terms of the self-executing orders with them, however neither of them were available. He again left messages with their office secretary for them to return his calls but none of his calls were returned.

20. Mr Hennry deposes in the affidavit that he extended professional courtesy to Mr Wanis and the applicant by making numerous attempts to contact them through emails and phone calls to discuss the case, but they failed to respond to his emails and or return his phone calls.

21. At page 61 of the O/B is a copy of the letter by Steeles Lawyers dated 21 May, 2014, to Warner Shand Lawyers, which was hand delivered. At the bottom right of that letter are hand-written notes by Steeles Lawyers showing that on 20, 23 and 26 May, 2014, they made attempts to talk to Mr Wanis by phone but on each of those occasions Mr Wanis was not available. Messages were left with his office secretary for him to return the calls but he failed to do so.

22. In Application by Anderson Agiru (2002) SC686 and Application by Herman Leahy (2006) SC855, the Supreme Court said that there are three categories of cases in which the Supreme Court's power of review under s. 155 (2) (b) of the Constitution may be invoked. These are:

i. Where parties have allowed a statutory right of appeal to expire. This principle was first applied in the landmark decisions of the Supreme Court in Avia Aihi v. The State (No.1) [1981] PNGLR 81 and Avia Aihi v.The State (No.2) [1982] PNGLR 44.

ii. Where a right of appeal is prohibited or limited by law. An example of this type of situation arising is in an election petition.

iii. Where there is no other way of going to the Supreme Court. This type of situation is illustrated by SCR No. 5 of 1987; re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433.

23. Section 155 (2) (b) of the Constitution grants power to the Supreme Court to review judicial acts. It does not deal with a right to invoke that power: Application by Anderson Agiru (supra). The Supreme Court's power is plenary in that it is absolute and unqualified and it has an unfettered discretion when deciding whether to exercise its power of review. It is significant to note that the Supreme Court's power of review under s. 155 (2) (b) is a reserve power. It cannot be invoked as a matter of course or as of right. For this reason, the review process under s. 155 (2) (b) is available only to a limited class of people: Avia Aihi v. The State (No.1) (supra) and Application by Herman Leahy (supra).

24. Turning now to the respondent's objection to competency, it essentially raises five grounds of objection. The first three grounds relate to the matters pleaded in Grounds A and B of the notice of objection to competency. Under these grounds of objection, the respondent claims that the applicant's application for leave to review raises the very same issues which the applicant raised in his application for leave to appeal (which the Supreme Court had already dismissed). The respondent therefore claims that the Supreme Court as the final court of appeal as stipulated under s. 155 (2) (a) of the Constitution, the issues raised in the applicant's application for leave to review have already been decided by the Supreme Court when it dismissed the applicant's application for leave to appeal and there is nothing for the same Court to review under s. 155 (2) (b). Finally, the respondent claims that the matters the applicant raised in his application for leave to review are not of the kind for which this Court's review jurisdiction under s. 155 (2) (b) can be invoked. The last two grounds of objection relate to Grounds C and D of the notice of objection to competency. These two grounds relate to paragraphs 2.1 to 2.5 of the applicant's application for leave to review. Under these grounds, the respondent claims that the applicant has failed to demonstrate that the decisions of the trial judge were against the evidence and the weight of the evidence. Furthermore, the respondent claims that the applicant has failed to state with particularity the reasons why those decisions were wrong in law. Lastly, the respondent claims that the above mentioned paragraphs raise matters which were not before the trial judge.

25. The respondent has in his objection to competency specifically pleaded the issue of jurisdiction of this Court to hear the applicant's application for leave to review. In raising this issue, the respondent relied on s. 155 (2) (a) of the Constitution, which provides that the Supreme Court is the final court of appeal. The respondent argued that because the final court of appeal (Supreme Court) has already dismissed the applicant's application for leave to appeal, the issues raised in the applicant's application for leave to review which were same issues raised in the applicant's application for leave to appeal, the same Court has no jurisdiction to review the same issues under s. 155 (2) (b). However, it should be noted that as a matter of law, the fact that the respondent has filed the notice of objection to competency, automatically raises the issue of jurisdiction of this Court to hear and determine the applicant's application for leave to review: Waghi Savings and Loan Society Ltd v. Bank South Pacific Ltd (1980) SC185.

26. The respondent's notice of objection to competency being heard and determined before the applicant's application for leave to review under s. 155 (2) (b), is as a matter of procedure, not unprecedented because the same approach was adopted by the Supreme Court in Avia Aihi v. The State (No.1) (supra). In that case, leave to apply for judicial review was heard after the Supreme Court had decided that it had jurisdiction to hear the application for leave to review. That said, this point is really only academic and is inconsequential because the endorsements in the Court file, of which the Court is obliged to take judicial notice, show that on 10 December, 2014, the applicant had consented to the respondent filing the notice of objection to competency. As a result, on 16 December, 2014, the Court granted leave for the respondent to file the notice of objection to competency. This is confirmed by a copy of the orders which appears at page 27 of the O/B. In any event, this procedure is also permitted under Order 7 Division 5 of the Supreme Court Rules, 2012. It follows that there is no issue as to this Court having jurisdiction to hear and determine the respondent's notice of objection to competency before the applicant's application for leave to review.

27. In Application by Jeffery Balakau [1998] PNGLR 437, the issue was similar to that presently before the Court in this case. In that case, the applicant allowed his statutory right of appeal to expire, resulting in an application for leave to appeal being filed out of time. The application was dismissed for being incompetent. The Court said that a party who seeks to invoke s.155 (2) (b) must have convincing reasons to satisfy the court as to why it should be granted leave to review. Such a party must provide a satisfactory explanation as to why the appeal was not filed within time. The Court's discretion to grant leave for review under s. 155 (2) (b), as noted, is unfettered and the decision whether to grant leave is entirely up to the discretion of the Court.

28. In Application by Jeffery Balakau (supra), there was a misunderstanding that the appeal period did not run during the court vacation. This resulted in the applicant failing to file his application for leave to appeal within the statutory appeal period. In that case, the Court held that the applicant was a person affected by a judicial act, viz; the refusal by the Court to grant his application for leave to appeal. As such, the applicant could invoke s. 155 (2) (b). The Court however went on to refuse leave for the applicant to apply for judicial review because the applicant failed to provide a satisfactory explanation for his failure to file the application for leave to appeal within time. In other words, the Court had jurisdiction to hear the applicant's application for leave to apply for judicial review, despite the earlier dismissal of the applicant's application for leave to appeal.

29. I find no basis for me not to follow the decisions in Avia Aihi v. The State (No.1) (supra) and Application by Jeffery Balakau (supra). In this case too, the applicant's application for leave to appeal was refused because it was filed out of time. The National Court's refusal to grant leave to the applicant leave to appeal is clearly a judicial act, for which the review jurisdiction of this Court under s. 155 (2) (b) can be invoked.

30. The requirements that an applicant must satisfy in order to invoke the review jurisdiction of this Court under s. 155 (2) (b), as noted earlier, have been spelt out clearly in Application by Anderson Agiru (supra) and Application by Herman Joseph Leahy (supra). The first requirement is that the applicant had allowed his statutory right of appeal to expire. This requirement has been met in this case. For that reason, I respectfully agree with Logan J, that the Court has jurisdiction to hear the applicant's application for leave to review. It follows that I must reject the argument by the respondent that the Court lacks jurisdiction to hear the applicant's application for leave to review. The effect of this finding is that the respondent's notice of objection to competency is itself incompetent and must be dismissed in its entirety: Waghi Savings and Loan Society Ltd v. Bank South Pacific Ltd (supra).

31. However, that is not the end of the matter, because there is another issue before the Court, namely, whether the applicant's application for leave to review is an abuse of process. This issue has to be decided against the overall facts and circumstances of the case: Anderson Agiru v. The Electoral Commission (2002) SC687. It is important to note that the issues addressed by counsel when arguing the respondent's notice of objection to competency were essentially the same as those relating to the applicant's application for leave to review under s. 155 (2) (b). In fact, Mr Wanis told the Court that he had in his arguments against the notice of objection to competency also addressed the issues relating to the applicant's application for leave to review. This is affirmed by the extract of his submissions which was filed after the respondent's notice of objection to competency was filed and served. Furthermore, the issues relating to abuse of process in my view overlap with the issues relating to the applicant's application for leave to review, and both counsel have addressed the issues fully. In any event, this Court has the inherent jurisdiction to consider and determine the issue of abuse of process on its own initiative, as it is a relevant issue which has arisen before the Court: Anderson Agiru v.The Electoral Commission (supra).

32. The conduct of the applicant and Mr Wanis is a relevant matter which the Court must have regard to when considering abuse of process, especially with regard to lack of any reasonable explanation as to their failure to attend court hearings, respond to the respondent's lawyers' numerous phone calls and for the failure to lodge the application for leave to appeal within time. On this point, both counsel have quite rightly, in my view, addressed the matter in their respective submissions. When considering the conduct of the applicant and Mr Wanis, the relevant period to consider is from 24 April, 2014, (when proceeding WS No. 61 of 2014, was first mentioned in Court) to 24 July, 2014, (when the applicant filed his application for leave to appeal the National Court decision of 10 June, 2014). The conduct of the applicant and Mr Wanis during this period has been discussed in detail at the beginning of my judgment, I will therefore only highlight the aspects of their conduct which relate to the issue of abuse of process.

33. It is an established principle of law that the Court has a duty to protect its processes from being abused. Where there is such abuse, the Court has the inherent power to deal with it. The Court can exercise this power even without an application being made by a party. This is necessary for the fair and proper administration of justice by the Court. In Anderson Agiru v. The Electoral Commission (supra), the Supreme Court in reiterating this principle said:

"The basic principles that are to be applied when the court is considering whether or not there has been an abuse of its processes have been succinctly put before us by Mr. Cannings in his submissions. Those principles in essence are that, the court's inherent power is its authorityto 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 thecourt's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits. It behoveslitigants 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. (see, generally, Ronney Wabia v BP Exploration Operating Co. Ltd &Ors, Unreported National Court Judgment N1697dated 28 March 1998).

In The State v Peter Painke [1976] PNGLR 210, O'Leary AJ emphasized that:

"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".

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. This has been clearly set out by the Supreme Court in National Excutive Council v Public Employees Association [1993] PNGLR 264 where it was held:

"An abuse of the process of the court may arise where, in an application for a remedy under O 16 r 1 (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 and would, as well, 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."

(See also Ipatas v Enga Interim Provincial Government & Anor, unreported National Court Judgment N1491 dated 24 October 1996; Aro Investments Pty Ltd v Fly River Provincial Government, Unreported judgment N1519, dated 6 February 1997; Pukari& Oro Cable Television v Seeto Unreported judgment N1490 dated 6 September, 1996.)." (my underlining).

34. In NAE Limited (1-21320) v. Curtain Bros &Ors (OS 225 of 2014) (12th March, 2015) Hartshorn J, in discussing the Court's inherent power to deal with abuse of process, said:

"Notwithstanding that the first defendant makes application pursuant to Order 12 Rule 40 National Court Rules (sic.), to dismiss the proceeding on the ground among others, that it is an abuse of process, the following classic statement of Lord Diplock in the House of Lord's decision of Hunter v. Chief Constable of the West Midlands Police and Others [1981] UKHL 13; [1982] AC 529, as to the inherent jurisdiction of a court to deal with an abuse of its process is worthy of reproduction:"

"This is a case about abuse of process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinkingpeople. The circumstances in which an abuse of process can arise are very varied;......It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kind of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power." (my underlining).

35. The above principles in my respectful opinion affirm that the Court can in the exercise of its inherent power consider and determine abuse of process, an issue which both counsel have fully addressed in their respective submissions. In my view, such an approach by the Court is in harmony with the view held in Application by Anderson Agiru (supra), where the Supreme Court stated among other things, that the Court can in the exercise of its inherent power summarily dismiss a proceeding which is an abuse of process. In my respectful opinion, Lord Diplock stated this same principle in Hunters v. Chief Constable of West Midlands Police and Others (supra), which Hartshorn J referred to in NAE Limited (supra). See also; Breckwoldt & Co. (N.G.) Pty v. Gnoyke [1974] PNGLR 106 at 121 per. Prentice J (as he then was) and PNG Forest Products and Inchcape Berhad v. The State & Jack Genia, Minister for Forests [1972] PNGLR 85. The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.

36. In this case, whist the applicant could be given the benefit of the doubt on whether he received the emails sent to him by Steeles Lawyers, I do not think there can be any doubt that he and Mr Wanis received at least some, if not, all the telephone messages that were left by Steeles Lawyers with their office secretary. There is undisputed evidence that Warner Shand Lawyers' office secretary did receive all the phone calls made by Steeles Lawyers as well as the messages that were left for the applicant and Mr Wanis to return those phone calls. I have no doubt that their office secretary, in the normal course of discharging her duties, would have and did relay the messages to the applicant and Mr Wanis. There are proper grounds for the presumption of regularity that the messages from Steele Lawyers were relayed to the applicant and Mr Wanis by their office secretary. I do not believe that the applicant and Mr Wanis did not receive the messages from the office secretary at all. The clear evidence is that the failure by the applicant and Mr Wanis to return Steeles Lawyers' phone calls occurred repeatedly. This to me is a matter which must weigh seriously against the applicant as it has in my view denied the respondent his right to a fair hearing: Les Curlewis & Reuben Renagi v. Protect Security and Communications Limited and David Yuapa(2013) SC1274; Curtain Bros (PNG) Ltd v. University of Papua New Guinea (2005) SC788 and Ace Guard Dog Security Services Ltd v. Yama Security Services Ltd and Lindsay Lai Lai (2003) N2459.

37. This case involves the applicant personally. As noted, he is a senior lawyer with many years of experience in litigation. Therefore for him to say in his affidavit that his lawyers simply "overlooked" that proceeding WS No. 61 0f 2014, was returning to Court on 3 June, 2014, is a very unsatisfactory explanation for his failure to turn up in Court on that day. On 24 April, 2014, he remonstrated that the claim by the respondent against him was scandalous. The question then is: if he felt so strongly about the allegations, why did he not turn up in Court on 3 June, 2014, and defend the claim? After all, he knew that the case had been ordered to return to Court on 3 June, 2014. Putting the blame on the Court for not ordering the respondent's lawyers to inform him of the case returning on 10 June, 2014, is totally unacceptable. This to me is a clear attempt to divert the Court's attention away from his contumelious disregard of the Court orders and directions given on 24 April and 16 June, 2014. The contumelious conduct of the applicant is further evidenced by his failure to lodge his application for leave to appeal within time, even after the Court had suggested to him on 9 July, 2014, that he should appeal the decision of 10 June, 2010. He lodged his application for leave to appeal 11 days outside of the statutory appeal period.

38. There is undisputed evidence that on 3 June, 2014, apart from sending an email to Mr Wanis informing him that the matter had been stood down to 3pm, Mr Hennry also phoned Warner Shand Lawyers' office at 11.45am to speak to the applicant and Mr Wanis, but they were both unavailable. Mr Hennry left messages for them to return his calls but none of them returned Mr Hennry's calls. Then, on 5 June, 2014, Mr Hennry again phoned Warner Shand Lawyers' office to speak to the applicant and Mr Wanis about the self-executing orders, but he was again told that they were both unavailable. Mr Hennry again left messages for the applicant and Mr Wanis to return his calls but, again, none of them returned his calls (pages 63 and 64 of the O/B).

39. It is significant to note that on 4 June, 2014, Warner Shand Lawyers wrote to Steeles Lawyers and raised matters which had already been covered in the defence filed by the applicant. They also raised the issue of discoveries in respect of documents that had already been served on them. This fact was pointed out to Warner Shand Lawyers by Steeles Lawyers in a letter dated 28 May, 2014 (page 62 of the O/B). The documents concerned were a letter of engagement for the respondent to value the property and a Valuation Report prepared by the respondent. In my view, given that the documents that Warner Shand Lawyers were seeking to discover had already been served on them, their letter of 4 June, 2014, to Steeles Lawyers was mischievous. I do not think it was written in good faith. There is another basis for this view; in the Statement of Claim, the respondent claimed that the property he valued belonged to the applicant. In paragraph 13 of the applicant's affidavit, he deposes that he was over-charged by an amount of K30, 000.00 by the respondent. Accordingly, by implication, the applicant has conceded that, at the very least, he owes the sum of K5, 280.00 to the respondent for his services. Also, by implication, the applicant admits that the property the respondent valued belonged to him and that there was an agreement for the respondent to do the valuation. Therefore, in essence, the only real dispute between the parties appears to be the quantum of damages for the respondent. This would justify the orders issued by the learned trial judge on 3 June, 2014, for the parties to engage in possible settlement discussions before 10 June, 2014. This must render the applicant's defence as to liability a sham, which in turn renders the application for leave to review by the applicant, frivolous and vexatious and an abuse of process, thus rendering the application subject to summary dismissal: Anderson Agiru v.The Electoral Commission (supra).

40. On 6 June, 2014, Steeles Lawyers sent an email to Warner Shand Lawyers at their Gordons office after they learnt on 3 June, 2014, that the email server at Warner Shand Lawyers' Kanudi office was out of order. In that email, Mr Hennry pleaded with Mr Wanis to call him on his phone number 3230444 so that they could discuss the case, especially as regards how the applicant was going to address the self-executing orders which were due to take effect on 10 June, 2014. In the email, Mr Hennry also told Mr Wanis that he had on numerous occasions since 3 June, 2014, tried to talk to him by phone but had been unsuccessful. The last paragraph of the email sums up Mr Henry's obvious frustration:

"I have tried on numerous occasions to contact you or Mr Wilson since Tuesday 3rd of June, 2014 to advise you of the latest Court Order however, I have not been able to speak to the both of you. Yours receptionist Ms Lemial K. has on those occasions received my calls and I have also left messages with her for yourself and Mr Wilson to return my call (sic.). Please call me as soon as you receive this email".

41. As mentioned, on 16 June, 2014, the applicant filed a notice of motion seeking to set aside the self-executing orders. That motion was made returnable on 19 June, 2014, obviously with the full knowledge of the applicant and or his lawyers. However, the applicant and his lawyers failed "explicitly" to turn up in Court on 19 June, 2014, and the motion was then dismissed for want of prosecution. Again, the explanation by the applicant for not turning up in court on 19 June, 2014, is very unsatisfactory. On 4 July, 2014, the applicant filed another motion seeking to have the orders of 19 June, 2014, set aside. On 9 July, 2014, when dismissing that motion, the Court told the applicant that he should appeal the orders he was challenging, viz; the self-executing orders of 10 June, 2014. Despite that generous advice from the Court, the applicant sat on his right of appeal until 11 days after the statutory appeal period had lapsed before filing his application for leave to appeal on 24 July, 2014.

42. It is fundamentally significant to note that the background facts to the applicant's application for leave to review reveal deliberate and repeated instances of non-compliance by the applicant of the orders and directions issued by the National Court. This has seriously prejudiced and denied the respondent his right to a fair hearing. In my view this provides a clear basis for the Court to exercise its inherent power to dismiss the applicant's application for leave to review. The failure by the applicant to comply with the Court's orders and directions is a serious matter, because he is an officer of the Court with many years of experience as a senior litigation lawyer. The dilatory and contumelious conduct of the applicant and Mr Wanis, as found, render the applicant's application for leave to review an abuse of process. The most glaring aspect of the conduct of the applicant and his lawyers relate to their failure to appear in Court on 3 and 19 June, 2014, when the matter returned to Court. They were aware of these return dates. The other glaring failure by the applicant is his failure to lodge his application for leave to appeal within time, even after it was suggested to him by the Court that he should appeal. These are clear evidence of the contumelious disregard by the applicant of the Court's orders and directions and its processes.

43. The applicant's application for leave to review under 155 (2) (b) of the Constitution is therefore an abuse of process and should be dismissed.

44. Consequently, the applicant's application for leave to review under s. 155 (2) (b) of the Constitution and the respondent's notice of objection to competency and are dismissed.

45. I affirm the self-executing orders that crystallised and became effective against the applicant and Mr Kambori on 10 June, 2014, viz. judgment for the respondent in the sum of K35, 280.00 with interest.

46. As to costs, I deal firstly with the applicant's application for leave to review. I order that costs shall follow the event. In other words, the applicant will pay the respondent's costs of and incidental to the application. Secondly, in regard to the objection to competency by the respondent, I am of the view that given the dilatory and contumelious conduct of the applicant and his lawyers, which in my view really necessitated or forced the respondent to file the objection, thus occasioning the respondent unnecessary litigation and expense, I do not consider it fair for me to order costs against the respondent: Keddie v. Foxall [1955] VicLawRp 44; [1955] VLR 320. Costs are discretionary and are subject to the wide discretion of the Court and I consider that the proper exercise of my discretion is to order that the parties pay their own costs: Donald Campbell & Co v. Pollack [1927] AC 732 at 812; All ER Rep. 1 at 41. Thus, in regard to the respondent's objection to competency, I order that each party bear their own costs.

47. LOGAN J: Raised for determination by an objection to competency is a question as to the jurisdiction of the Supreme Court under s 155(2)(b) of the Constitution to grant leave to review a judgment of the National Court in circumstances where the right of appeal against that judgment has been lost by effluxion of time. To understand how the question had arisen requires an account to be given of the procedural history of the case.

48. By a writ of summons issued on 4 February 2014 Mr Clement Kuburam, who trades as CK Valuers and Realtors, claimed the sum of K35,280.00, together with interest and costs, from Mr Michael Newall Wilson as first defendant and Mr Valentine Kambori as second defendant. That sum was alleged to be owing under a contract for the performance of a valuation service by Mr Kuburam. He alleged that he was commissioned by Mr Kambori to undertake the valuation and that Mr Wilson promised to be responsible for the fees for that service. Mr Kuburam alleged that Mr Wilson was Mr Kambori's principal in respect of the commissioning of the valuation. He further alleged that neither Mr Wilson nor Mr Kambori had met, despite demand, the invoiced cost of the performance of that valuation service.

49. Mr Kambori has not been served with the writ. Mr Wilson has. As it happens, Mr Wilson is a lawyer, a principal in the firm Warner Shand. That firm is the solicitor on the record for Mr Wilson.

50. Mr Wilson filed a defence to the statement of claim on 24 February 2014. By that defence he denied the existence of any relationship of principal and agent as between him and Mr Kambori or that Mr Kambori was in any way authorised by him to commission the valuation service. He denied that he promised to be responsible for Mr Kuburam's fees.

51. A review hearing was held before the National Court in respect of the claim on 24 April 2014. Mr Kuburam was represented by his lawyers, Steeles at that directions hearing. Mr Wilson appeared on his own behalf. Materially, the learned National Court judge made two orders that day. One required Mr Wilson to file and serve affidavits in response by 29 May 2014, the other required the parties to meet in conference by 30 May 2014 (to the end of endeavouring to settle the proceeding). His Honour further ordered that the case be listed for further review on 3 June 2014.

52. On 3 June 2014, the case came back before the National Court for review as ordered. On this occasion, though Mr Kuburam again appeared by his lawyers, Mr Wilson neither appeared in person nor was represented by a lawyer from his firm.

53. It should be recorded that there being no appearance by or on behalf of Mr Wilson when the proceeding was called on in the morning on 3 June 2014, it was stood down until 3:00 pm that day. In the meantime, at about 11:24 am, Mr Hennry of Steeles sent an email to Warner Shand's Waigani email address advising that the proceeding had been stood down until 3:00 pm that day. There is no evidence to suggest that this email was received and every reason, in light of Mr Wilson's conduct that day and before 10 June to think that it was not. It is not necessary to reach a concluded view on that subject in order to determine the objection to competency.

54. In light of the default in appearance, the primary judge made the following orders on 3 June 2014. His Honour adjourned the review hearing until 10 June 2014. He further ordered:

"Unless the Defendants comply with items 2 and 3 of the Orders of 24/04/14 [the material orders, earlier quoted] before close of business on Friday 6/06/14, the Defendants appear on the abovementioned date to show cause of actions taken of actions taken, shall result in judgment for the Plaintiff in the sum of K35,280.00 with interest."

I have extracted the terms of the order made on 3 June 2014 from the note made by the primary judge on the National Court file and reproduced in the appeal book. The appeal book does not contain a sealed copy of the order made that day. On 4 June 2014, Warner Shand sent a letter to Steeles relating to the proceedings. The letter is responsive to a letter from Steeles dated 28 May 2014. It was received by Steeles on 5 June 2014. It is evident from its contents that its author (Mr Wanis) had no idea that the National Court had made orders on 3 June 2014. Indeed, the letter appears to have been written in blissful ignorance of a need for Mr Wilson to have appeared that day.

55. Inferentially in response to the receipt of Warner Shand's letter of 4 June, Mr Hennry of Steeles attempted to contact Mr Wanis of Warner Shand on 5 June 2014. Mr Wanis was unavailable. Mr Hennry left a message requesting Mr Wanis to return his call. His file note of the call does not record that he gave any indication that orders had been made on 3 June. Be this as it may, Mr Wanis did not return Mr Henry's call.

56. Apart from this telephone call, Steeles sent an email on 6 June to Warner Shand in which the making of the orders on 3 June 2014 was notified. There is no evidence, one way or the other, that this email was received. Also on 6 June 2014, Mr Hennry again attempted to contact Mr Wanis by telephone, only to be told again that he was not available. Steeles did not serve a sealed copy of the order made on 3 June 2014 on that firm.

57. On 10 June 2014, Mr Kuburam once again appeared by his lawyers and Mr Wilson once again neither appeared in person nor was represented by a lawyer from his firm. Cause as to why judgment should not be entered against him, as required by the order of 3 June 2014, was therefore not shown by Mr Wilson. In these circumstances, the primary judge signed judgment against him for the claimed sum, together with interest and costs. There is nothing in the application book which would suggest that those acting for Mr Kuburam placed any evidence before the primary judge before this order was made that Mr Wilson had been notified of the terms of the order made on 3 June 2014.

58. On 15 June 2014, Mr Wilson, by his lawyers, filed in the National Court a notice of motion by which he sought to set aside the orders made on 10 June 2014. The National Court fixed 19 June 2014 as the date for the hearing of that motion. On 19 June 2014, Mr Wilson neither appeared in person nor by his lawyers when that motion was called on. The motion was thereupon dismissed that day for want of prosecution.

59. Mr Wilson filed a further notice of motion on 4 July 2014 seeking the same relief. This was listed for hearing on 9 July 2014. On this occasion, Mr Wilson did appear by his lawyers. The National Court refused to grant the orders sought. The application book does not contain either a copy of the reasons for judgement delivered that day or a transcript of reasons for judgment delivered ex tempore. Mr Wilson's account in an affidavit is that the National Court dismissed the motion because the orders made on 10 June 2014 were final and the course of challenge open was therefore to appeal against them.

60. On 24 July 2014, Mr Wilson, by his lawyers, Warner Shand, filed in the Supreme Court (SCA No 98 of 2014) an application for leave to appeal against both the judgment given on 10 June 2014 as well as the order dismissing his motion made on 19 July 2014. Mr Kuburam objected to the competency of this leave to appeal application. On 10 September 2014, the Supreme Court, constituted for this purpose by a single judge, upheld the objection to competency. Though I do not have a copy of any related reasons for judgment in the application book, the order of 10 September recites that the application for leave to appeal is dismissed "for filing outside of time".

61. It was against this background that Mr Wilson applied to the Supreme Court for leave to appeal against the judgement given on 10 June 2014. In response, Mr Kuburam has objected to the competency of this application.

62. It is the merits of that objection to competency which fall to us to determine. In this regard, it is necessary to emphasise that an objection to competency goes to the jurisdiction of a court to entertain at all a particular proceeding which has been initiated in that court: see, for example, Porgera Joint Venture & Placer (PNG) Ltd v Joshua Siapu Yako & Ors (2008) SC 916 at paragraph 21 and Cocoa Cola Amatil (PNG) Ltd v Yanda SC1221 at paragraphs 6 to10. In the present context, that means that, if the Supreme Court has no jurisdiction to entertain Mr Wilson's judicial review application, the objection will be upheld.

63. It is important to distinguish the position which obtains in respect of an objection to competency from the question as to whether, if there is jurisdiction, leave to apply for judicial review ought to be granted. The question of whether or not leave ought to be granted entails the exercise of a judicial discretion in relation to which, apart from whether an arguable case of error is raised, considerations such as delay on the part of the applicant and any resultant prejudice to a respondent or other person affected by the decision or judgment sought to be challenged can be relevant. Such discretionary considerations are not relevant to a determination of whether there is jurisdiction. There is a fundamental difference between the existence of a judicial power and whether or not, as a matter of discretion, a case is one which calls for the exercise of that power.

64. It was common ground between the parties in their submissions, and correctly so, that, if the Supreme Court had already made a final determination in respect of the National Court's judgment of 10 June 2014, there was no jurisdiction to grant leave to review that National Court judgment under s 155(2)(b) of the Constitution. That is because the Supreme Court is, by s 155(2)(a) of the Constitution, the final court of appeal. Once the Supreme Court has given its decision on an appeal, "That is where the matter ends as far as the judicial system or process is concerned." – Application by Joseph Kintau SC1125, paragraph 36. If, on the other hand, the Supreme Court has made no such final determination in respect of a National Court judgment, an application for the judicial review of that judgment can entail no impeaching or questioning of an earlier determination of the Supreme Court. In that circumstance, such is the breadth of the specification in s 155(2)(b) of the Constitution that the Supreme Court "has an inherent power to review all judicial acts of the National Court", that the Supreme Court will have jurisdiction to entertain an application for the review of a National Court judgment. That review can be undertaken via the making of an order in the nature of a prerogative writ pursuant to the power conferred by s 155(4) of the Constitution.

65. Over the years, categories of case have come to be identified as occasion for the exercise of the s 155(2)(b) jurisdiction, depending on the circumstances of a particular case:

(a) where the parties have allowed a statutory right of appeal to expire;
(b) where a right of appeal is prohibited or limited by or under statute;
(c) where there is no other way of bringing a case before the Supreme Court.

These categories were identified by Kapi DCJ, as his Honour then was, in observations made by him in Supreme Court Reference No 13 of 2002: Review pursuant to s 155(2)(b) and 155(4) of the Constitution; Application by Anderson Agiru (2002) SC 686. The other members of the Court in that case, Los J, Salika J, Sakora J and Injia J adopted these observations. Those observations have been accepted as correct in later authorities: see, for example, Review pursuant to s 155(2)(b); Application by Herman Joseph Leahy (2006) SC 855.

66. In the present case, Mr Wilson's initial response to the judgment of 10 June 2014 was, mistakenly, to apply to set it aside. That failed because the view was taken in the National Court that the judgment given that day was in the nature of a final judgment and thus not able to be set aside by that court. Mr Wilson then compounded that mistake by applying to the Supreme Court for leave to appeal against the judgment of 10 June 2014. Applying the "order approach" favoured in this jurisdiction in respect of characterising a judgment as final or interlocutory (see Punagi v Pacific Plantation Timber Ltd (2011) SC 1153)), the judgment given on 10 June 2014 was final. Mr Wilson did not therefore need leave from the Supreme Court to appeal against that judgment. He did, however, either have to give notice of his appeal within 40 days of the date of that judgment or within such further time as a Supreme Court judge might allow by an application for an extension of time made within that same 40 day period: s 17, Supreme Court Act 1975. Mr Wilson did not file even his misconceived application for leave to appeal until 24 July 2014, after the expiry of the 40 day period.

67. This is therefore a case where, as a result of a series of errors made by Mr Wilson or those acting for him (or both), the right of appeal against the judgment of 10 June 2014 has been lost. The lamentable errors in practice and procedure already described should not obscure a conclusion that those errors are considerations relevant to whether a review jurisdiction ought to be exercised. They are not relevant to whether the jurisdiction itself exists.

68. The judgment of the Supreme Court on 10 September 2014 dismissing the application for leave to appeal did no more than confirm that the appeal right had been lost by effluxion of time. It entailed no determination by the Supreme Court on the issues concerning the judgment of 10 June 2014 that Mr Wilson wishes now to agitate. At the heart of those issues, evident from a fair reading of paragraphs 2.5, 3.4 and 4.11 of the application for leave to review is a complaint that the giving of judgment against him on 10 June 2014 entailed a denial of procedural fairness to him by the National Court. That denial is said to have occurred because, the order being one which required him to show cause why judgment ought not to be entered it was incumbent on Mr Kuburam to notify him of the making of that order and to prove that this had been done to the primary judge on 10 June 2014 when requesting that judgment be entered.

69. I observe, incidentally, that the "show cause" feature of the order of 3 June 2014 means that, contrary to Mr Wilson's submission, it was not self-executing. This error in the characterisation of the order of 3 June 2014 does not detract from the procedural fairness issue which Mr Wilson seeks to agitate before the Supreme Court. Having regard to the prescription in s 59 of the Constitution in respect of the principles of natural justice, this issue is not just one known to law but a fundamental one in relation to the exercise under the Constitution of judicial power by the National Court.

70. As to the objection to competency, it only comes to this. Mr Wilson's application for review falls within one of the categories in which the Supreme Court may exercise its review jurisdiction. That category is where the right of appeal has been lost. It has been lost. The issue which Mr Wilson seeks to raise is one known to law. The earlier judgment of the Supreme Court in no way involved the reaching of any conclusion as to the merits of that issue. To the contrary, that judgment anticipated, with respect correctly, that the avenue left to Mr Wilson to raise that issue was via the very means he has later chosen, by an application for leave to review the National Court judgment. Whether or not leave ought to be given is not for us to decide. The Supreme Court does, however, have jurisdiction to entertain the application. It follows that the objection to competency is itself incompetent. It should therefore be dismissed.

71. Since preparing the above, I have had the advantage of reading in draft the reasons for judgement proposed to be delivered by Gavara-Nanu J. As his Honour highlights, the Court's jurisdiction was not the only issue which the parties chose to agitate in submissions upon the hearing of the objection. Also raised for consideration in those submissions was whether the application for leave to review was an abuse of process or whether leave itself ought to be given.

72. Even though, as it conveniently might have been, the leave application was not listed for substantive hearing with the objection to competency, that the parties chose to make submissions on the merits of the leave application, including whether it was an abuse of process, means that there is no injustice to them entailed in our also determining these issues now. To the contrary, it will save time and costs and result in a saving to the National in terms of an efficient use of judicial resources if we do so.

73. Mr Wilson has certainly not responded to the claim made against him with the attention to his own interests and the ordinary practice and procedure of the National Court and this Court that one might expect of a senior legal practitioner in this jurisdiction. And neither, insofar as he has not represented himself, has those acting for him, principally Mr Wanis. Even so, I do not, with respect, regard the application for leave as an abuse of process. It falls within a recognised category of case in which an application for review might be made. It does raise an arguable case about whether there was a denial of procedural fairness entailed in the giving of judgement on 10 June 2014.

74. Neither, with respect, do I feel confident on the material to hand in describing the defence which Mr Wilson filed in the National Court as a sham. I do not regard the case for such a conclusion as rising above "inexact proofs, indefinite testimony or indirect inferences": Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362.

75. Even if there were a denial of procedural fairness in relation to the giving of that judgement, and whether there was is a moot point, it is not every such case which will attract a grant of leave to review in circumstances where the point could have been raised via an appeal as of right lost through a failure to file within time.

76. What is critical here in my view is that Mr Wilson knew on 24 April 2014, because he appeared for himself that day that an appearance would have to be made on 3 June 2014 if the matter had not resolved itself at the settlement conference ordered by the National Court. Even though Mr Wilson may not have been aware after 3 June 2014 of a need to appear on 10 June 2014 to show cause why judgement should not go against him, it does seem inherently likely that either he or Mr Wanis knew from telephone messages left before 10 June 2014, that Steeles Lawyers wished to discuss the case. In this regard, I respectfully agree with Gavara-Nanu J. His Honour has also highlighted in his reasons for judgement the failure of Mr Wilson to appear on 19 June 2014 either personally or by his lawyer and the intimation given by the National Court on 9 July 2014 about the filing of a notice of appeal. Instead, as already related, a misconceived application for leave to appeal was filed and, even then, filed out of time.

77. Against this background, there is really no satisfactory explanation, especially when one bears in mind that Mr Wilson is a senior legal practitioner, for why the ordinary right of challenge was not utilised. Likewise, that a situation emerged whereby it became necessary for the National Court on 3 June 2014 to make a show cause order was the result of less than satisfactory conduct by a senior legal practitioner. Against this background, I do not regard the circumstances of this case as calling for a grant of leave, even though this Court has jurisdiction to entertain the application.

78. In light of the foregoing, though I would, for the reasons given, dismiss the objection to competency, I would nonetheless dismiss the application for review.

79. As to costs, even though Mr Wilson succeeded in resisting the former, the course which the case took is such that he did not succeed overall in persuading the Court that the case was one for a grant of leave. In these circumstances, the orders which I would make as to costs are to order that Mr Wilson pay the costs of the dismissal of the application for leave to review and that there be no order as to costs in respect of the dismissal of the objection to competency. I was initially inclined to propose that Mr Wilson ought to have the costs of the dismissal of the objection to competency but I am persuaded by the reasons of Gavara-Nanu J that the particular circumstances of this case are such that the interests of justice are better served by the making of no order as to costs in respect of that dismissal.

80. BONA J: I have had the honour of reading the draft judgment of my brother Gavara-Nanu J, and I respectfully concur with his Honour's reasons and conclusions and I have nothing further to add.

__________________________________________________________

Warner Shand Lawyers : Lawyers for the Applicant
Steeles Lawyers: Lawyers for the Respondent