Meauri v Kereme [2022] PGSC 102; SC2284 (2 August 2022)

SC2284

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 34 OF 2021

BETWEEN:
TREVOR MEAURI –
Acting Secretary, Department of Defence
Applicant

AND:
DR PHILIP KEREME –
in his capacity as the Chairman of the Public Service Commission
First Respondent

AND:
DAVID PORYKALI
Second Respondent

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J.
2022: 20^th July, 2^nd August

SUPREME COURT – PRACTICE AND PROCEDURE - Application for leave to review – whether substantive proceeding an abuse of process

Cases Cited:
Application by Anderson Agiru (2002) SC687
Application by Herman Joseph Leahy (2006) SC855
Jacob Popuna v. Ken Owa (2017) SC1564
Telikom (PNG) Ltd v. Kila Ravu and Ors (2018) SC1694
National Airports Corporation v. Antony Simitap (2019) SC1883
Independent State of Papua New Guinea v. Hon. Belden Namah (2020) SC2037
Special Reference by Hon. Davis Steven (2020) SC2041
John Darrel Ahwong and Ors v. Ala Ane and Ors (2021) SC2108
Jim Tapako v. KS Akusa Ltd (2021) SC2159

Counsel:

Mr. C. Raurela, for the Applicant
Mr. N. Kopunye and Mr. E. Tolabi, for the Second Respondent

2^nd August, 2022

1. HARTSHORN J: The second respondent filed an application for this proceeding to be dismissed for want of prosecution and for purported non-compliance with the Attorney General Act 1989. During the course of hearings on this application, this court requested the parties to make submissions on whether this proceeding is an abuse of process. The court then heard the application to dismiss and submissions on whether this proceeding is an abuse of process.

Background

2. The applicant seeks leave to review the decision of the primary judge made on 25^th January 2021 in consolidated proceedings numbered OS(JR) No. 250 of 2018 and OS(JR) No. 581 of 2018 (decision to be reviewed). The primary judge dismissed the applicant’s judicial review application and granted the second respondent’s judicial review application.

3. The dispute concerns the termination of the second respondent’s employment with the Department of Defence and his reinstatement by the Public Service Commission. The effect of the decision to be reviewed is that the second respondent’s employment is reinstated with the Department of Defence.

4. The applicant appealed the decision to be reviewed to the Supreme Court on 2^nd February 2021. This appeal was dismissed as being incompetent on 20^th August 2021.

5. The second respondent claims that this application for leave to review should be dismissed for want of prosecution and because the applicant’s lawyer has not complied with the Attorney General Act 1989.

6. I consider first whether this proceeding is an abuse of process as such a finding will be determinative of the substantive application for leave to review.

Abuse of process

7. As referred to, the applicant appealed the decision to be reviewed and that appeal was dismissed. The applicant has therefore already exercised his primary right to appeal the decision to be reviewed. The second respondent submits that to seek to review the decision to be reviewed in such circumstance is an abuse of process.

8. The applicant submits that notwithstanding that the applicant did exercise his appeal rights, the circumstances of this case warrant that leave for review be granted. It is submitted that those circumstances are that the primary judge committed grave errors in his consideration and determination of the decision to be reviewed.

Consideration

9. As to whether a single judge of the Supreme Court should consider whether an application for leave to review is an abuse of process when an application seeking such redress is not before the court, notwithstanding that the applicant did not take issue with this court’s authority to do so, I refer to the Supreme Court judgment of Independent State of Papua New Guinea v. Hon. Belden Namah (2020) SC2037, in which at [9] and [10] the Court said:

“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)””

10. In this circumstance therefore, I am satisfied that this Court has the authority to proceed to hear whether the substantive application for leave to review is an abuse of process.

Law

11. As to what constitutes an abuse of process in the context of this case, as I did in Jim Tapako v. KS Akusa Ltd (2021) SC2159 at [9], 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.”

12. I also refer to the judgments of John Darrel Ahwong and Ors v. Ala Ane and Ors (2021) SC2108, Telikom (PNG) Ltd v. Kila Ravu and Ors (2018) SC1694 and National Airports Corporation v. Simitap (2019) SC1883. These judgments all concerned proceedings which were held to be an abuse of process. The various proceedings in these cases were seeking a review under s. 155(2)(b) Constitution of judgments notwithstanding that appeals had previously been filed in respect of those judgments.

13. In this instance, it is not disputed that an appeal was filed against the decision to be reviewed and was dismissed for being incompetent.

14. As was stated in Jacob Popuna v. Ken Owa (2017) SC1564 at [15] and in National Airports Corporation v. Antony Simitap (2019) SC1883 at [7], the three categories of cases for which the power of review pursuant to s. 155(2)(b) Constitution may be invoked are where:

a) parties have allowed a statutory right to appeal to expire;

b) a right of appeal is prohibited or limited by law;

c) there is no other way of bringing a case to the Supreme Court.

(The Supreme Court cases of Application by Anderson Agiru (2002) SC687 and Application by Herman Joseph Leahy (2006) SC855 are cited as examples.)

15. Here, as to category one above, the applicant appealed within the appeal period. He did not allow the statutory right of appeal to expire without filing an appeal. As to category two above, a right of appeal is not prohibited or limited in this instance and the applicant exercised his right of appeal. The appeal however, was found to be incompetent. As to category three above, there was a way of bringing this case to the Supreme Court. That way was by appeal. Consequently, this case does not fall with any of the above categories.

16. As to the submission of the applicant that notwithstanding that the applicant has already exercised his appeal rights, leave to review should be permitted as the primary judge committed grave errors in his consideration and determination of the decision to be reviewed: the Supreme Court does not have the inherent power to review all or any judicial acts of the Supreme Court: Special Reference by Hon. Davis Steven (2020) SC2041 at [13]. If leave to review was granted in this instance, this court would be countenancing in effect, that the Supreme Court has the jurisdiction to review a decision of itself, that decision in this instance being the dismissal of the appeal of the decision to be reviewed. The Supreme Court does not have that jurisdiction or power. An application seeking such relief is an abuse of process.
17. Consequently, for the above reasons, I am satisfied that this proceeding is an abuse of process of the Supreme Court and accordingly it should be dismissed. Given this, it is not necessary to consider the other submissions of counsel.

Orders

18. It is ordered that:

a) This application for leave to review is dismissed.

b) The applicant shall pay the costs of the second respondent of and incidental to the said application for leave to review, to be taxed if not otherwise agreed.
__________________________________________________________________
Raurela Lawyers: Lawyers for the Applicant
Kopunye Lawyers: Lawyers for the Second Respondent