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National Airports Corporation v Simitap [2019] PGSC 122; SC1883 (13 November 2019)

SC1883

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV 67 OF 2017

APPLICATION FOR REVIEW PURSUANT
TO S. 155(2)(b) OF THE CONSTITUTION

BETWEEN:
NATIONAL AIRPORTS
CORPORATION
Applicant

AND:
ANTHONY SIMITAP
Respondent

Waigani: Hartshorn J, Lindsay J, Liosi J
2018: 28^th August
2019: 13^th November

SUPREME COURT REVIEW – review brought pursuant to s155 (2)(b) Constitution – review filed after discontinuing appeal after leave to discontinue granted – review is brought only in circumstances where statutory right of appeal has expired or where right of appeal is prohibited or limited by law or where there is no other way in bringing a case to the supreme court – none of these circumstances exist to invoke courts review jurisdiction – discontinuing an appeal and re-agitating same arguments through review amounts to abuse of process – review dismissed

Cases Cited:

SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170
Anderson Agiru v. Electoral Commission (2002) SC687
Moime v. National Housing Corporation (2012) SC1191
Pokia v. Yallon (2014) SC1336
Jacob Popuna v. Ken Owa (2017) SC1564
Telikom (PNG) Ltd v. Rava (2018) SC1694

Counsel:

Mr. S. Ranewa, for the Applicant
Ms. G. Kubak, for the Respondent

13^th November, 2019

1. BY THE COURT: This is a decision on a contested application for the review of a National Court decision brought pursuant to s. 155(2)(b) Constitution.

Procedural background

2. The applicant, the National Airports Corporation, seeks to review a decision of the National Court dated 12^th August 2016. That decision found in favour of the respondent Mr. Anthony Simitap and ordered amongst others, that he be reinstated to the substantive position that he had held before his termination (decision to be reviewed).

3. The applicant filed an appeal, SCA No. 113 of 2016, National Airports Corporation v. Antony Simitap, against the decision to be reviewed and a stay was ordered against the primary judge’s decision.

4. Prior to its hearing the applicant obtained leave to discontinue the appeal on 26^th June 2017.

5. The applicant filed this application to review pursuant to s. 155(2)(b) Constitution after leave was granted on 19^th July 2017.

Abuse of process

6. In filing a proceeding pursuant to s. 155(2)(b) Constitution to review a National Court decision, after an appeal against that decision had been discontinued, in our view is an abuse of this court’s process, notwithstanding that leave has been given by consent by a Supreme Court Judge. The court raised this issue with counsel.

7. As referred to in Jacob Popuna v. Ken Owa (2017) SC1564 at [15], the three categories of cases for which the power of review pursuant to s. 155(2)(b) Constitution may be invoked are:

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

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

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

(The Supreme Court cases of Application by Anderson Agiru (2002) SC686 and Application by Herman Joseph Leahy (2006) SC855 are cited as examples.)

8. In this instance, as to category one above, the applicant appealed within the appeal period and then discontinued. It did not allow the statutory right of appeal to expire. As to category two above, a right of appeal is not prohibited or limited in this instance and the applicant exercised its right of appeal. It however, discontinued the appeal. 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.
9. We also refer to the following Supreme Court cases and statements made therein reproduced in Jacob Popuna (supra):

1. 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 s155 (2) (b) and review the same decision of the National Court and have a second bite at the cherry.”

2. 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).”

10. We also reproduce the following passage from Jacob Popuna (supra) at [16] for completeness:

“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.”

11. That in this instance the applicant discontinued its appeal, as distinct from it being dismissed, does not detract from the applicant having exercised its right to appeal within the appeal period and then electing to forego its right of appeal by discontinuing. To then seek to review a National Court decision in respect of which it has discontinued an appeal, is in our view, attempting to have, “a second bite at the cherry”. Further, leave being granted to review whether with consent or not, cannot cure an abuse of process.

12. The kinds of circumstances in which an abuse of process may arise are not closed. We refer to Telikom (PNG) Ltd v. Rava (2018) SC1694 at [21] in this regard.

13. As to this court’s authority in exercising its inherent jurisdiction and by its own motion, in Moime v. National Housing Corporation (2012) SC1191 at [4], the Supreme Court said:

“4. In the course of considering an appeal this court can exercise its inherent jurisdiction if it is of the view that the circumstances so warrant. In Don Polye v. Jimson Papaki & Ors (2000) SC637, the Court said:

“This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process.”

5. This passage was cited and approved in Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978 which commented that the exercise of this Court's authority can be by its own motion. The Court then, pursuant to its inherent jurisdiction, dismissed the appeal before it on a ground of appeal that was not specifically argued on the basis that there was an abuse of process. This Court in the case of Rimbao v. Pandan (2011) SC1098 also cited the passage in Don Polye (supra), and in Mendepo v. National Housing Corporation (2011) SC1169, this Court referred to these decisions with approval and stated that the exercise of this Court's authority can be by its own motion.”

14. Consequently, for the above reasons, we are satisfied that this proceeding is an abuse of process of this court and accordingly it should be dismissed. As the dismissal is not as a result of submissions made by the respondent, each party shall bear their own costs.

Orders

15. It is ordered that:

a) This proceeding is dismissed;

b) The parties shall bear their own costs.
__________________________________________________________________
Kawat Lawyers: Lawyers for the Applicant
Kubak & Kubak: Lawyers for the Respondent