SC2011

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 52 OF 2019

BETWEEN:
TELIKOM PNG LIMITED
Applicant

AND:
JOSEPH NENG
Defendant

Waigani: Hartshorn J
2020: 2nd & 4th September

SUPREME COURT REVIEW - Application for leave to review pursuant to s.155(2)(b) Constitution  - applicant contends that its right of appeal to the Appeal Court had been unlawfully, unjustly and prematurely terminated by the Supreme Court - whether the application for review is an abuse of process - whether a competent appeal raising the same issues as the application pursuant to s. 155(2)(b) Constitution has been determined by the Supreme Court by way of a summary dismissal – an Appeal not having considered the substantive merits is immaterial -also irrelevant that the applicant may have an arguable case or that it considers that exceptional circumstances exist and that a substantial miscarriage of justice has occurred – application for leave for review is dismissed for being an abuse of process

Cases Cited:

Jacob Popuna v. Ken Owa (2017) SC1564
Telikom (PNG) Limited v. Rava (2018) SC1694

Counsel:

Mr. R. Obora, for the Applicant

Oral decision delivered on
4th September 2020

1. HARTSHORN J: This is decision on an application for leave to review pursuant to s.155(2)(b) Constitution. 

Background

2. The National Court ordered judgment in favour of the respondent, a terminated employee of the applicant, in the sum of K214,566.00, for unlawful termination of employment. 

3. The applicant appealed the National Court decision. The appeal was summarily dismissed for want of prosecution by a Full court of the Supreme Court on 17th December 2018. 

Application

4. The applicant contends that its right of appeal to the Appeal Court had been unlawfully, unjustly and prematurely terminated by the Supreme Court. It makes this application therefore, for leave to review pursuant to s.155(2)(b) Constitution. Counsel for the appellant submitted that there was not a hearing by the Supreme Court on the merits and that the applicant was entitled to such a hearing.

Consideration 

5. In the Supreme Court case of Jacob Popuna v. Ken Owa (2017) SC1564, the Court (Gavara-Nanu J, Kariko J and Kassman J) at [4], considered what it termed as the preliminary question to be decided,being whether the application for review before it was an abuse of process in circumstances where an otherwise competent appeal raising the same issues as the application pursuant to s. 155(2)(b) Constitution has been determined by the Supreme Court by way of a summary dismissal. After a detailed consideration of authority the Court stated at [16]: 

“16. In relation to the application before us, the order of the Supreme Court summarily dismissing the appeal SCM 34 of 2015 was a final determination of the grounds of grievance the applicants have against the National Court decision appealed against. The Supreme Court’s order of 30th June, 2016 was the end of that matter. 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”. 

6. The Supreme Court in Telikom (PNG) Limited v. Rava (2018) SC1694 (Injia CJ, Hartshorn J and Higgins J), in considering a similar fact situation, followed the decision in Popuna v. Owa(supra) and said at [20]:

“That the Appeal did not consider substantive merits is immaterial. It is also irrelevant that Telikom may have an arguable case or that it considers that exceptional circumstances exist and that a substantial miscarriage of justice has occurred.”

7. Consequently, on the authority of these two decisions to which I have referred, I find that this application for leave to review is an abuse of process and is dismissed. 

Orders

8.  The Court orders that:

1.	The Application for leave to review is dismissed;

2.	No order as to costs. 
__________________________________________________________________Raymond Obora Lawyers: Lawyers for the Applicant