Kennedy v Cheah [2023] PGSC 129; SC2479 (6 June 2023)

SC2479

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 5 OF 2022

BETWEEN:
JEFFERY DEAN KENNEDY
Applicant

AND:
ADAM CHIN CHEAH
First Respondent

AND:
MARILYN ESPOLONG
Second Respondent

AND:
ALEXIS SAMUEL ALAISTAIR TAM
Third Respondent

AND:
JULIAN PETER BIANKO
in his capacity as the Liaison
Officer of the Australian Federal
Police in Papua New Guinea
Fourth Respondent

Waigani: Hartshorn J
2022: 19^th May, 6^th June

SUPREME COURT – Practice and Procedure - Application for directions – whether substantive proceeding an abuse of process

Cases Cited:
SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170
Anderson Agiru v. Electoral Commission (2002) SC687
Application by Herman Joseph Leahy (2006) SC855
Pokia v. Yallon (2014) SC1336
Jacob Popuna v. Ken Owa (2017) SC1564
Telikom (PNG) Ltd v. Kila Ravu and Ors (2018) SC1694
National Airports Corporation v. Simitap (2019) SC1883
Independent State of Papua New Guinea v. Hon. Belden Namah (2020) SC2037
Jim Tapako v. KS Akusa Ltd (2021) SC2159
John Darrel Ahwong and Ors v. Ala Ane and Ors (2021) SC2108

Counsel:
Mr. S. Dewe, for the Applicant
Mr. G. Purvey, for the First, Second and Third Respondents

6^th June 2022

1. HARTSHORN J: The applicant filed an application in which he sought an order or direction that the application for leave to review filed, be deemed appropriate and proper.

2. During the course of the application being moved, counsel for the first, second and third respondents (respondents) raised a preliminary issue that this proceeding is an abuse of process.

3. I consider this issue first as a finding in favour of the respondents will be determinative of the substantive application for leave to review and the current interlocutory application therein.

Background

4. The applicant has filed this application for leave to review an interlocutory decision of the National Court (subject decision). The subject decision stayed the National Court proceeding pending the hearing and final determination of certain criminal proceedings against the applicant in Australia.

Abuse of process

5. The respondents submit that the applicant filed an appeal against the subject decision on 27^th June 2021. That appeal was dismissed on 24^th February 2022 for being incompetent. The applicant has therefore already exercised his primary right to appeal the subject decision. To seek to review the subject decision pursuant to s.155(2)(b) Constitution is an abuse of process, the respondents submit.

6. The applicant submits that he is entitled to review the subject decision pursuant to s. 155(2)(b) Constitution. This section of the Constitution is the final avenue to be relied upon if appeal rights have been exhausted. That the applicant filed an appeal before, does not preclude an application to review pursuant to s. 155(2)(b) Constitution. Further, there is no other recourse available to the applicant, the applicant submits.

Consideration

7. 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)””

8. 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

9. 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.”

10. 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.

11. In this instance, it is not disputed that an appeal was filed against the subject decision and was dismissed for being incompetent. It is stated as such in the application for leave to review at [2.5]. Further, the notice of appeal and order dismissing the appeal are in evidence before this court.

12. 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.)

13. 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.
14. 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

15. It is ordered that:

a) This application for leave to review is dismissed;

b) The applicant shall pay the costs of the first, second and third respondents of and incidental to the said application for leave to review including the application for directions of the applicant, to be taxed if not otherwise agreed.

__________________________________________________________________
Jema Lawyers: Lawyers for the Applicant
Young & Williams Lawyers: Lawyers for the First, Second and Third Respondents