Tapako v KS Akusa Ltd [2021] PGSC 90; SC2159 (17 September 2021)

SC2159

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 90 OF 2019

IN THE MATTER OF A REVIEW PURSUANT TO
SECTION 155(2)(b) OF THE CONSTITUTION

BETWEEN:
JIM TAPAKO
Applicant

AND:
KS AKUSA LIMITED
Respondent

Waigani: Hartshorn J
2021: 20^th August & 17^th September

Application for leave to review

Cases Cited:
SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170
Anderson Agiru v. Electoral Commission (2002) SC687
Pokia v. Yallon (2014) SC1336
Jacob Popuna v. Ken Owa (2017) SC1564
Telikom (PNG) Ltd v. Kila Ravu and Ors (2018) SC1694
Pam Logistics v. Estate of Late Jimmy Varika (2019) SC1813
National Airports Corporation v. Simitap (2019) SC1883
Independent State of Papua New Guinea v. Hon. Belden Namah (2020) SC2037 Special Reference by the Hon. Davis Steven (2020) SC2041

Counsel:

Mr. G. Lau and Mr. C. Kaki, for the Applicant
Mr. M. Murray, for the Respondent

17^th September, 2021

1. HARTSHORN J: This is a decision on a contested application for leave to review a decision of the National Court, brought pursuant to s. 155(2)(b) Constitution.

Background

2. The National Court found in favour of the respondent and dismissed the claim of the applicant and another plaintiff (plaintiffs) on 20^th February 2017. Their proceeding had been commenced in October 2005. In the proceeding, the plaintiffs and the respondent claimed and cross claimed against each other for breach of a management agreement. The management agreement was in respect of trucks transporting freight from Lae to Porgera.

3. The applicant filed a Supreme Court appeal within time on 28^th March 2017. The respondent applied for the appeal to be dismissed for want of prosecution and the appeal was dismissed on 26^th July 2019. The applicant filed this application for leave to review on 6^th December 2019.

Preliminary
Abuse of process

4. The respondent submits that this application is an abuse of process as there is no right to seek a review of a judgment of the National Court pursuant to s. 155(2)(b) Constitution if an applicant has already exercised his right of appeal of that judgment and in this instance the applicant has already exercised his right of appeal.

5. The applicant submits that whether this proceeding is an abuse of process should be dealt with by the full Supreme Court after leave has been granted, that the appeal was not decided on its merits when it was dismissed for want of prosecution and the applicant has a right to have his appeal/review heard on its merits.

6. The applicant submits further that the judgment to be reviewed gives rise to serious questions concerning the primary judge’s findings and conclusions in law and on the facts.

7. In regard to whether this court comprised of a single judge should consider whether the proceeding is an abuse of process, I reproduce [9] and [10] of Independent State of Papua New Guinea v. Hon. Belden Namah (2020) SC2037:

“9. In regard to there not being an application before the court seeking redress for abuse of process, we reproduce [27] of Amet v. Yama (2010) SC1064 from the decision of Salika DCJ (as he then was) and Batari J:

“27. The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:

“It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.””

10. Further, in Wilson v. Kuburam (2016) SC1489, Gavara Nanu J with whom Bona J agreed, said at [31]:

“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)””

8. I am satisfied therefore, that I am entitled to consider, at this juncture, whether the proceeding is an abuse of process.

Law

9. As to what constitutes an abuse of process in the context of this case, I reproduce the following passages:

a) SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170, per Kapi DCJ (as he then was):

“..... I would find it extremely difficult to accept any argument that the applicant, having exhausted the appeal procedure, can now go back and invoke the judicial review procedure under s 155 (2) (b) and review the same decision of the National Court and have a second bite at the cherry.”

b) Anderson Agiru v. Electoral Commission (2002) SC687:

“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.”

c) Pokia v. Yallon (2014) SC1336 at [20]:

“An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Such an abuse can be committed when two proceedings are conducted simultaneously regarding the same cause of action (Telikom PNG Ltd v ICCC (2008) SC906) or when the plaintiff loses one proceedings then comes back to court for a “second bite at the cherry” to prosecute the same cause of action (Anderson Agiru v Electoral Commission (2002) SC687).”

d) Jacob Popuna v. Ken Owa (2017) SC1564 at [16]:

“It is immaterial that the appeal was summarily dismissed and not determined on its merits. It is also irrelevant that serious issues of public interest are involved. There must be finality in litigation. The applicants are now re-agitating the same grounds of grievance as they raised in appeal SCM 34 of 2015.By taking this course they are having “a second bite of the cherry”, which the Courts guard against as an abuse of process; Anderson Agiru v Electoral Commission and The State (supra) SC687, Application by Anderson Agiru (supra) SC704.”

Consideration

10. The applicant submits that his application is not an abuse of process as he has a right to be heard. He relies upon the judgment of Pam Logistics v. Estate of Late Jimmy Varika (2019) SC1813 in which leave to review was granted. In Pam Logistics (supra), Salika CJ queried whether the applicant in that case was heard in the court below and whether it was entitled to be heard on trial. His Honour then stated that, “On that basis alone”, leave was granted. From a reading of the judgment in Pam Logistics (supra), it is clear that the applicant had not filed an appeal within time, unlike the scenario in this instance and so the judgment is not on point.

11. In this instance, the applicant appealed within the appeal period. He did not allow the statutory right of appeal to expire without filing an appeal. The appeal was then dismissed by the Supreme Court for want of prosecution. The facts here are similar to the facts in Jacob Popuna v. Ken Owa (supra). In Popuna (supra) an appeal was filed in time and was dismissed for want of prosecution before an application was made pursuant to s.155(2)(b) Constitution. In Popuna (supra) at [16] the Court said:

“...... the order of the Supreme Court summarily dismissing the appeal .... was a final determination of the grounds of grievance the applicants have against the National Court decision appealed against. The Supreme Court’s order .... was the end of that matter. It is immaterial that the appeal was summarily dismissed and not determined on its merits.”

12. Similarly in Telikom (PNG) Ltd v. Kila Ravu and Ors (2018) SC1694, an appeal had been filed in time and was dismissed for want of prosecution. The Court in Telikom (supra) followed the decision in Popuna (supra) in holding that an application made pursuant to s. 155(2)(b) Constitution when an appeal had been filed within time and had been dismissed for want of prosecution, is an abuse of process. I also make reference to National Airports Corporation v. Simitap (2019) SC1883 in this regard.

13. I mention further that when an application is made pursuant to s. 155(2)(b) Constitution for the Supreme Court to review a judicial act of the National Court, if the Supreme Court has already made a final decision dismissing an appeal from that judicial act of the National Court, the application under s. 155(2)(b) is in effect requesting the Supreme Court to review a decision of itself. The Supreme Court does not have that power. I refer to the powers of the Supreme Court as considered in Special Reference by the Hon. Davis Steven (2020) SC2041 at [12] – [14]. Such an application therefore, is an abuse of process.

14. Consequently for the above reasons, the application of the applicant is an abuse of process and should be dismissed. Given this it is not necessary to consider the other submissions of counsel.

Orders

15. It is ordered that:

a) This application for leave to review is dismissed;
b) The applicant shall pay the costs of the respondent of and incidental to the said application, to be taxed if not otherwise agreed.
__________________________________________________________________
Niuage Lawyers: Lawyers for the Applicant
Murray and Associates: Lawyers for the Respondent