Kowa v Namah [2024] PGSC 4; SC2533 (18 January 2024)

SC2533

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 15 OF 2023

APPLICATION UNDER S. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
ERICK KOWA
Applicant

AND:
BELDEN NAMAH
First Respondent

AND:
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J
2023: 13^th December
2024: 18^th January

Notice of Motion seeking to appeal the judgment of a single Supreme Court Judge pursuant to Order 11 Rules 25 and 26 Supreme Court Rules - Application to dispense with time for filing an Application for Review – whether the Notice of Motion is an Abuse of Process

Cases Cited:

Wilson v. Kuburam (2016) SC1489
Philemon Embel v. Jefferey Komal (2016) SC1579
Jacob Popuna v. Ken Owa (2017) SC1564
Telikom (PNG) Ltd v. Rava (2018) SC1694
State v. Belden Namah (2020) SC2037
Barrick (Niugini) Ltd v. Nekitel (2021) SC2092
Taman v. Samson (2021) SC2148

Counsel:

Mr. G. Bon, for the Applicant
Mr. G. Kult and Mr. K. Kulip, for the First Respondent
Mr. W. Pep, for the Second Respondent

18^th January 2024

1. HARTSHORN J: This is a decision on a contested application to dismiss the Notice of Motion filed by the applicant Erick Kowa on 8^th September 2023. The application to dismiss is made by the first respondent, Belden Namah and is supported by the second respondent, the Electoral Commission.

2. The Notice of Motion sought to be dismissed is an appeal from an order given by a single Judge of the Supreme Court, David J. and it is made pursuant to Order 11 Rules 25 and 26 Supreme Court Rules. The Notice of Motion seeks amongst others, that “... the requirements for filing of the Application for Review within 14 days pursuant to Order 5 Rule 18 of the Rules is dispensed with and that the Applicant is allowed to file and serve Application for Review Pursuant to Order 5 Rule 19 of the Rules within 7 days.” (dispense appeal)

Background

3. On 21^st April 2023 the applicant was granted leave to apply for a review of the decision of the National Court which on 17^th March 2023 dismissed the election petition EP No. 32 of 2022: Kowa v. Namah and Electoral Commission.

4. On 5^th May 2023 the 14-day time period in Order 5 Rule 18 Supreme Court Rules within which the applicant was required to file a substantive review or application for review, lapsed.

5. On 19^th June 2023, the applicant filed and served his application to dispense with compliance of Order 5 Rule 18 Supreme Court Rules (first dispense application) on the respondents. After a hearing on 29^th June 2023, this court delivered its decision on 14^th July 2023 and dismissed the first dispense application as incompetent after considering a preliminary issue as to its competency.

6. On 18^th July 2023, the applicant filed and served his second application to dispense. On 18^th August 2023, after a contested hearing, the Court, David J, dismissed the applicant’s second application to dispense on its merits and ordered costs against the applicant.

7. On 8^th September 2023, the applicant filed and served the dispense appeal which seeks to appeal the decision of David J delivered on 18^th August 2023.

8. On 22^nd September 2023, the first respondent filed and served this application to dismiss which seeks to dismiss the dispense appeal on the ground that it is an abuse of process.

Application to dismiss

9. The first respondent contends that the dispense appeal should be dismissed as an abuse of process as:

a) there is nothing before the Court to anchor the applicants dispense appeal as the grant of leave lapsed on 5^th May 2023 being 14 days after leave was granted, hence the applicants right in respect of the review lapsed or ceased to exist on that date;

b) the Court does not have jurisdiction under Order 5 Rule 39 or Order 11 Rules 25 and 26 to extend the grant of leave in circumstances where the application for extension is made outside of the 14 days after the grant of leave contemplated under Order 5 Rule 18;

c) as the applicant did not utilise the procedure available to him under Order 5 Rule 18 to file an application for an extension within 14 days after the grant of leave, an application under Order 5 Rule 39 outside of that time frame is an abuse of process of the Court.

10. The applicant submits that the dispense appeal is not an abuse of process as:

a) Order 11 Rules 25 and 26 Supreme Court Rules provides for an application to be made to the Supreme Court when a party is dissatisfied with an order of a single Supreme Court Judge;

b) the dispense appeal is validly before the Court pursuant to Order 11 Rules 25 and 26 Supreme Court Rules and so the applicant’s rights have not been extinguished;

c) Order 5 Rule 39 Supreme Court Rules provides for dispensation to be applied for before or after the occasion for compliance occurs.

Consideration

11. The application to dismiss for being an abuse of process is made pursuant to Order 13 Rule 16(1)(a) Supreme Court Rules and the inherent jurisdiction of the Court. Order 13 Rule 16(1)(a) provides that a Court or a Judge may summarily determine a matter on application by a party. The definition of “Summary Determination” in Order 13 Rule 1 Supreme Court Rules means an application to dismiss a matter and “matter” means any appeal, application, review or other proceeding on the General List and includes any interlocutory application in respect of such matter.

12. That a matter can be summarily determined for being an abuse of process under Order 13 Rule 16 Supreme Court Rules was stated as such in Barrick (Niugini) Ltd v. Nekitel (2021) SC2092 by the Supreme Court at [22] – [23].

13. As to what constitutes an abuse of process, there are numerous judgments of the Supreme Court which detail and specify instances that have been held to be abuses of process: (see amongst others, Wilson v. Kuburam (2016) SC1489; Jacob Popuna v. Ken Owa (2017) SC1564; Telikom (PNG) Ltd v. Rava (2018) SC1694 and State v. Belden Namah (2020) SC2037).

14. The kind of circumstances in which an abuse of process may arise are not closed. This was stated in Telikom v. Rava (supra) at [21] as follows:

“To emphasise that the kinds of circumstances in which an abuse of process may arise are not closed, as I did in Nae Ltd v. Curtain Bros Papua New Guinea Ltd (2015) N6124 and Amos Ere v. National Housing Corporation (2016) N6515, I reproduce 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:

“This is a case about abuse of the 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-thinking people. The circumstances in which 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 kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.””

15. In this instance the applicant is utilising Order 11 Rules 25 and 26 to appeal a decision of a single Supreme Court Judge which dismissed an application which sought amongst others, to dispense with the requirement to file an application for review within 14 days of leave being granted.

16. It is not in dispute that leave was granted to the applicant to apply for review of the relevant National Court decision. It is also not in dispute that the applicant has filed two applications to dispense with the requirements to file an application for review within 14 days of leave being granted, after the 14 days had elapsed since leave was granted. The latter application is the subject of the dispense appeal.

17. On the basis that no application for review has been filed by the applicant and no extension of time to file the application for review has been granted, when the 14 days after leave was granted had elapsed the application for leave proceeding was completed: Taman v. Samson (2021) SC2148 at [17]. The relief sought in the originating document that had commenced the application for leave had been granted and the time to bring any further application under Order 5 Rule 18 had expired. No further relief could be obtained in that proceeding commenced by the application for leave.

18. Moreover, the time requirement in Order 5 Rule 18 of 14 days had already occurred and so there was no longer anything to be dispensed with. Further, given the expiry of the said 14 days, there is now no period of time still running which may be extended.

19. It is the case that in instances where leave is required before a substantive proceeding may be commenced and filed, such as an application for leave to appeal and an application for leave to review, the practice is that the new substantive proceeding such as an appeal or an application for review are either filed with the application for leave under the same number allocated by the Supreme Court Registry or alternatively, the new substantive proceeding is given a new file and allocated a new number.

20. If an appeal or application for review is filed together with the application for leave which granted leave for the appeal or application for review to be filed, it does not detract from the appeal or application for review being a new proceeding commenced by an originating document - a notice of appeal or an application for review. It also does not detract from the application for leave proceeding being completed when leave has been granted or refused.

21. The reliance by the applicant on Order 5 Rule 39 is on that part which refers to, “after the occasion for compliance occurs”. If the interpretation preferred by the applicant on this phrase was adopted, there would be no time limit on when an application under that Rule could be made. That, with respect, cannot have been the intention when the Rule was made and such an interpretation is contrary to the principle of finality in litigation, particularly in election - related matters in which it has been held that time is of the essence: (see amongst others, Philemon Embel v. Jefferey Komal (2016) SC1579 at [6]).

22. To be able to rely upon Order 5 Rule 39 there must be a proceeding which is current in which an application under Order 5 Rule 39 may be made. Here, as referred to, the application for leave proceeding has now been completed and is no longer current: Taman v. Samson (supra) at [17]. The application under Order 5 Rule 39 may not now be made in that proceeding. To purport to make an application under Order 5 Rule 39 in a proceeding which has been completed, is an abuse of process.

23. I am satisfied that the dispense appeal by relying upon Order 11 Rules 25 and 26 and Order 5 Rule 39 Supreme Court Rules, in the circumstances referred to above constitutes an abuse of process. It is a misuse of the Court’s procedure as referred to by Lord Diplock in his classic statement in Hunter v. Chief Constable of the West Midlands Police (supra). The Notice of Motion of the applicant should be dismissed. Given this, it is not necessary to consider the other submissions of counsel apart from as to costs.

24. The first respondent seeks costs on an indemnity basis. There is evidence that the applicant was forewarned of this. In this instance however, it may be argued that Order 5 Rule 39 and Order 11 Rules 25 and 26 Supreme Court Rules do appear to provide recourse to the applicant. In such a circumstance, it cannot be said in my view that the applicant’s conduct is so improper, unreasonable or blameworthy that he should be punished by an order for indemnity costs. Costs will follow the event on a party party basis.

Orders

1. The application to dismiss filed 22^nd September 2023 of the first respondent is granted.
   
2. The Notice of Motion filed 8^th September 2023 by the applicant is dismissed for being an abuse of process.
   

100. The applicant shall pay the costs of the first and second respondents of and incidental to the said application filed 22^nd September 2023 and the Notice of Motion filed 8^th September 2023 on a party party basis to be taxed if not agreed otherwise.
     

4. The security deposit in the sum of K5,000.00 held in the Registrar’s Trust Account shall be paid equally to the respondents towards the costs to which they are entitled pursuant to Order (c) above.
   

_____________________________________________________________
Gibson Bon Lawyers: Lawyers for the Applicant
Young and Williams Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent