SC1962
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 31 OF 2014

REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) TO REVIEW NATIONAL COURT DECISIONS IN OS. NO. 408 OF 2010

APPLICATION BY SOUTHERN HIGHLANDS
PROVINCIAL GOVERNMENT
Applicant

AND
TONY TEPI
Respondent

Waigani:	Batari J, David J, Frank J
2020:	29 May

SUPREME COURT - Review Application–application for judicial review –grounds of - primary court decision on summary judgmentpending trial on assessment and contempt of court orders pending hearing - matters raised for first time – whether appropriate before this court

Cited Cases: 
Papua New Guinea Cases

Avia Aihi v. The State [1981] PNGLR 81
Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853
Kitogara Holdings Pty Ltd v. NCD & Ors [1988-89] PNGLR 346
Lae Bottling Industries Ltd v. Lae Rental House Ltd (2011) SC 1120
Mary Torobert v. Henry Torobert (2011) SC1130
Mesach Autahe v. Paul Korerua (2008) SC956
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064 
Smith v. Ruma Construction Ltd (2002) SC695
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC 1568 
State v. Toka Enterprises Ltd (2013) SC1346 

Overseas Cases

Ord v Ord [1923] ALL ER 208
Counsel: 

N. Gimaia, for the Applicant 
T. Ilaisa, for the Respondent

JUDGMENT
29th May, 2020

1.	BY THE COURT:  The applicant is seeking a review of two decisions of the primary court following grant of leave on 11 March 2015. The first is a judgment dated 28 March 2013.  The second is the contempt orders of 18 July 2014. Both decisions followed ex parte hearings. This is the Court’s verdict. 

Background

2.	The facts forming the background to this application are not in dispute.  The respondent was formerly employed by Southern Highlands Provincial Government (SHPG), from January 2001.  By mid-2002 he had only been paid a one fortnight salary so, he sued for his outstanding entitlements in WS No. 1049 of 2002: Tony Tepi v. Huai Iaibo, Provincial Administrator, Southern Highlands Provincial Administration.  His claim was settled at K14,105.43 on 24 August 2012 following a trial on assessment of his claim.

3.	On 1 August 2006 a State of Emergency (SOE) in the Southern Highlands Province was declared, resulting in the suspension of the SHPG. Tony Tepi along with many other career public servants were stood down or sidelined with some eventually losing their jobs, as a result.

4.	The Supreme Court subsequently ruled the SOE unconstitutional, allowing the Respondent to appeal his termination to the Public Services Commission (PSC).  The PSC upheld his appeal and ordered his reinstatement together with payment of lost entitlements effective from the date of his dismissal in 2006.  In a letter dated 12 May 2009, the PSC communicated its decision to the then SHP Administrator, Mr William Powi.

5.	By mid-2010 the SHP Administrator had not responded to the PSC decision so, on 29 July 2010 Toni Tepi filed the proceedings in, OS No. 408 of 2010: Tony Tepi v. William Powi, SHPAdministrator and SHPG and Independent State of Papua NewGuinea to enforce the PSC decision.

6.	The First and Second Defendants in the OS proceedings were then represented by Jerry Kiwai Lawyers. The Solicitor General represented the State. On 4 April 2011 the Plaintiff filed a motion seeking summary judgment and served the defendants. On 13 December 2011 the Plaintiff applied for summary judgment and the matter proceeded ex parte. 

7.	On 28 March 2013 the primary court ruled in favour of the Plaintiff and declared inter alia, the failure by the First and Second Defendants to implement the decision of the PSC was unlawful. The primary court also ordered the defendants to immediately reinstate Toni Tepi to his substantive position and pay his lost entitlements with special damages to be assessed. For over a year, the defendants failed to comply with the primary court’s orders.  

8.	Then on 3 June 2014, Tony Tepi filed Contempt of Court proceeding against the defendants/contemnors.  The case was heard on 18 July 2014 with only the State being represented. The State neither opposed nor supported the application to punish a Mr Ugia Kembo, (then incumbent SHP Administrator), of contempt. The primary court found Mr Kembo guilty of contempt and adjourned for parties to be heard on penalty.

9.	The defendants then engaged Liria Lawyers. Mr Naewa Gimaia appeared for the defendants on 15 August 2014 and applied for adjournment. The hearing was then adjourned to 12 September 2014.

10.	However, on 11 September 2014 Liria Lawyers filed an application seeking dismissal of the whole proceedings for showing no reasonable cause of action, an abuse of the court process and for being statute barred. In the alternative, the defendants sought to set aside the summary judgment.

11.	The defendants took no action to defend the proceeding on penalty for Contempt of Court. It also did not pursue its application to dismiss the entire proceedings. Instead, on 17 March 2015 the Applicant filed this application, leave having been obtained on 11 March 2015.

Grounds for Review

12.	The grounds for review are in two parts couched under, (i) Substantive Proceeding, and (ii) Contempt Proceeding. The grounds under each head are drafted in long, unwieldly fashion. They can be fairly paraphrased as follows: 

Substantive Proceeding

1)	The trial Judge erred in law when he did not consider at the outset, the failure by the plaintiff to give notice of his intention to make a claim against the SHPG under s. 4 of the Claims By And Southern Highlands Provincial Government Act which in effect, rendered the entire proceeding incompetent.

2)	The trial judge erred when he considered, the plaintiff had given notice of his claim under s 5 of the Claims By and Against the State Act 1996 when in fact, that purported notice to the State was given outside of the statutory time limit and was statute barred.

3)	The trial judge erred when he failed to consider that the plaintiff erroneously filed his proceedings under O 4 of the National Court Rules and thereby abused the Court process when the relief sought was in the nature of mandamus, and the correct mode was to commence by way of judicial review under Order 16 of the NCR.

4)	The trial judge erred when he made orders that over-lapped with the orders in the judgment of another matter Tony Tepi v. Huai Iaibo, the Administrator SHP & Ors, WS NO. 1049 of 2002, thereby rendering the relief granted duplicitous.

5)	The trial judge erred when he took into consideration, facts that are irrelevant to the Plaintiff’s principal claim for enforcement of the Public Service Commission decision of 12th May 2009.

	Contempt Proceeding

6)	The trial judge erred in law when he convicted Mr. Ungia Kembo who was not a party named in the substantive proceeding.

7)	The trial judge erred when he convicted Mr. Ungia Kembo of contempt of Court Orders of 28th March 2013 when the said Court Orders were unclear and ambiguous, and not properly served on the Applicant.

8)	The trial judge erred when he failed to consider the condition precedent to satisfaction of judgments against the Southern Highlands Provincial Government and the State was the issuance of a certificate of judgment pursuant to Section 10 of the CBASHPG Act and Section 14 of the CBAS Act respectively.

9)	The trial judge erred when he convicted Mr. Ungia Kembo of contempt contrary to Section 10(5) of the CBASHPG Act.

Orders Sought

1)	The decision of the National Court dated of 28th March 2013 in OS NO. 408 of 2010; Tony Tepi v. William Powi & Ors be quashed for being irregular.

2)	The decision of the National Court dated 18th July 2014 in OS NO. 408 of 2010 in convicting Mr. Ungia Kembo of contempt of court be quashed and the contempt proceedings dismissed.

3)	The substantive proceeding in OS NO. 408 of 2010, Tony Tepi v. William Powi & Ors be dismissed for disclosing no reasonable cause of action and for being an abuse of process.

4)	Alternatively, the proceeding OS NO. 408 of 2010; Tony Tepi v. William Powi & Ors be re-instated for fresh directions before the National Court and the Applicant is at liberty to defend the claim.

5)	Costs of this application.

Principles of judicial review under Constitution s. 155 (2)(b)

13.	The Applicant has lost its right of appeal.  In making this application for judicial review, we assumed the Applicant had satisfied the settled criteria for grant of leave under s. 155 (2) (b) of the Constitution. In, Lae Bottling Industries Ltd v. Lae Rental House Ltd (2011) SC 1120 the Supreme Court suggested the following criteria to guide the leave consideration;

•	Locus standi;
•	Satisfactory explanation for default in bringing an appeal;
•	Satisfactory explanation for delay in bringing the application for leave for review;
•	Exceptional circumstances showing manifestation of substantial injustice, or serious legal or factual issues that raise an arguable case for a full review of the decision;
•	Interest of justice

See also, State v. Toka Enterprises Ltd (2013) SC1346; Southern Highlands Provincial Government v. Ronald Kalu (2016) SC 1568; Avia Aihi v. The State [1981] PNGLR 81.

Competency of grounds for review

14.	From the pleadings of the grounds of review and the reliefs sought, it is apparent, the Applicant is raising issues that should have been raised and argued in the court below. So, it is pertinent to deal with the competency of those grounds at the outset.

15.	Counsel for the Respondent, Mr Ilaisa has posed the issue in this way: whether the applicant should be allowed to advance the arguments that ought to have been raised before the primary court? Mr Gimaia on the other hand, appeared uncommitted to the issue of competency of proceeding and relied substantially on the merits of each ground for review.

16.	The question of the Supreme Court’s jurisdiction remains open and can be determined by the Court at any time, even in instances where no challenge to jurisdiction is raised by a party: Mary Torobert v Henry Torobert (2011) SC1130.  We are also satisfied the issue of jurisdiction is exception to the rule, that unless a party has raised an issue in the primary court, he/she or it is not at liberty to raise it on appeal or a judicial review application. 

17.	So, we will deal with the issue of competency of this application under these considerations; (i)there is nothing before us, in connection with the proceedings at the leave stage; (ii) the attitude of the Applicant in allowing the judgments to be obtained ex parte;(iii) settled principles on raising the issue of competency or jurisdiction: Sir Arnold Amet v. Peter Charles Yama (2010) SC1064; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853; and (iv) the matters still pending trial court consideration and determine.

(i) Question of Leave 

18.	At the leave stage, the court in exercising its discretionary power to grant leave for judicial review under s. 155 (2)(b) of the Constitution merely takes a cursory view of the matters proposed for review at the substantive hearing. The court need not conduct detailed assessment of the merits of the proposed grounds of review and the supporting materials. 

19.	On the other hand, if upon a quick perusal, the grounds for review and the materials before the court are lacking in merit or lacking clear procedural competence or is an abuse of the court process, it is within the discretion of the court to refuse leave and the court should not hesitate to do that: Southern Highlands Provincial Government v. Ronald Kalu (2016) SC 1568. Too, where there is a clear option for the applicant to pursue the issues raised in the court below, leave should not be granted as that would amount to abuse of the court process, unless exceptional reason is shown why the application for leave to review should be entertained: Smith v Ruma Construction Ltd (2002) SC695.

20.	The issue of competency as it now arises in connection with the grounds for review should have been vetted at the leave stage. We do not have before us, the background pertaining to the leave application. The transcript of the proceedings and the reasons for the grant of leave are also not before this Court.  The onus is on the Applicant to ensure all relevant information and records are disclosed as part of this application in order for the parties to be fully prepared to argue their case and for the Court to be fully informed of the gist of the matters and issues in contention. 

(ii) Attitude of Applicant in allowing the judgment to be obtained ex parte

21.	What is apparent on the face of the records is this. In both proceedings in the primary court; ((i) substantive proceeding, (ii) Contempt of Court), the applicant was duly served the originating process; notices of motion and dates of the hearings of those applications. The orders of the court were also served subsequent to the decisions. The Applicant and the Provincial Administrator, William Powi or the person for the time being occupying that office seemingly ignored the court processes and the court orders. 

22.	That arrogant or indifferent attitude to the court process was consistent with that shown in the lack of reaction to the proceedings in, WS No. 1049 of 2002: Tony Tepi v. Huai Iaibo, SHP Administrator &SHP Administration; OS No. 408 of 2010:  Tony Tepi v. William Powi and SHPG & The State, and to the various correspondences in connection with the PSC decision.  

23.	This is not a case where the PSC orders and the primary court proceedings caught the Applicant by surprise. The Applicant was represented at the earliest stage but failed to take positive steps to defend the proceedings. It had to take the Contempt of Court orders for the SHPG and the incumbent SHP Administrator to suddenly realise the serious consequences of inattentiveness to the legal processes and the gravity of the situation with the real threat of being punished for disobeying Court Orders.

24.	This application is made by the SHPG. The person directly affected by the Contempt of Court orders is not a party. The grounds for review and the arguments in support thereof fall within the original jurisdiction of the National Court. The applicant had the opportunity to agitate those issues in the court below but by conduct, it deliberately chose not to rely on them.  

25.	We accept the Respondent’s argument that it is highly improper for a party to deliberately avoid proceedings before the court of original jurisdiction and then belatedly seek to invoke the jurisdiction of this Court in an appeal or a review of the matters they failed to put forward or defend in the primary court. This is incontestably against the fundamental principles of fairness, one aspect of which, is to give the primary judge the opportunity to consider and rule or decide on the matters raised in the appeal or judicial review. It is trite that the Supreme Court should only allow a review of a decision that has been argued by all the parties and a decision is made on it by the trial judge. 

26.	The Respondent has relied on a common law principle which we consider relevant, that a party who has the opportunity of proving a fact in support of his case but has chosen not to rely on it, is precluded from later on putting it before another tribunal. This principle is found in Ord v. Ord [1923] ALL ER 208 where Lush J stated at p. 212;

“The maxim Nemo debet bis vexari prevents a litigant who has had an opportunity of proving a fact in support of his claim or defence and chosen not to rely on it from afterwards putting it before another tribunal.  To do that would be to unduly harass his opponent, and if he endeavoured to do so he would be met by the objection that the judgment in the former action precluded him from raising that contention.  It is not 	that it has already been decided or that the record deals with it.  The new 	act  has not been decided; it has never been in fact submitted to the tribunal and it is not really dealt with by the record.  But it is, by reason of the principle I have stated, treated as if it has been”. 

27.	In this case, the Applicant had the opportunity to file and rely on those matters set out in the grounds for judicial review, in its defence but, appeared to have made a deliberate choice not to rely on them. It is precluded from raising those matters before this Court.

28.	The grounds of review are also incompetent because the issues raised are not based on exercise of discretion following a ruling on a contested matter or relate to an error in the decision-making process connected with the ex parte proceedings or based on any exceptional circumstances showing substantial injustice or any serious factual issues that raise an arguable point.

(iii) Issue of jurisdiction can be decided at any stage of proceedings

29.	The Respondent’s position is that the Applicant is raising issues which the National Court did not have the opportunity to hear and determine at the ex parte hearings. This contention in our view, runs parallel to the settled principle that the appellant and relevantly, the applicant cannot raise an issue on appeal or a judicial review without first raising the issue in the Court below: Amet v. Yama; Bougainville Copper Limited.

30.	In Bougainville Copper Limited the Supreme Court relevantly stated:

“…an appeal lies to the Supreme Court to examine and where warranted, correct an alleged error of a trial judge and not the failures of parties to raise issues, factual or legal, they should have first raised 	in the Court below.”

31.	It is apparent, the grounds for judicial review raised matters that were not raised and argued in the court below.  They relate to the original jurisdiction of the National Court which this Court is not.  Those matters do not fall into such exceptional circumstances which would warrant intervention by this Court to determine under its inherent jurisdiction.

(iv) Primary Court is yet to determine and conclude the issues before it

32.	We accept the contention by the Respondent, that the grounds for judicial review should be dismissed for being a gross abuse of process and offensive to the principles of fairness.  The National Court proceedings have not been completed. There are two matters still pending hearing and determination to complete the proceedings namely; (i) trial on assessment of loss; (ii) hearing on penalty for Contempt. The Applicant had the opportunity and can still pursue those pending aspects of the case. Too, the Applicant had and still has the occasion to move its application to set aside the ex parte orders of the National Court as well as pursue its application challenging the competency of the National Court proceedings.  

33.	In, Mesach Autahe v. Paul Korerua (2008) SC956 the Supreme Court directed, that where there is a legal avenue available, the applicant must exhaust that avenue before seeking to invoke the Court’s inherent jurisdiction under Constitutions. 155 (2) (b).  In that case, the Court had to determine the issue of standing to invoke the discretionary powers of the Court under s. 155 (2) (b) in circumstances where, the applicant is still insolvent and he has not exhausted his right to apply for a Certificate of Discharge under the Insolvency Act. The Court thereby refused his application for judicial review.  See also, Kitogara Holdings Pty Ltd v. NCD & Ors [1988-89] PNGLR 346 where, the Supreme Court refused the application for judicial review because the applicant still had an avenue in the Land Board to pursue.

34.	In this case, the Applicant has not exhausted all due processes before the National Court. The courses still open to the Applicant to pursue are inherent within the proceedings in the Court below. Depending on the outcome, the Applicant has the further option to appeal the primary court decision.

Conclusion

35.	In all the circumstances of this case, the attempt by the Applicant to obtain a review of the primary court’s decisions is mischievous. It involved careless arrogance and disregard for law and due processes. The application is a clear attempt to circumvent due processes that are still pending completion in the primary court. When the Applicant had the opportunity, it failed to protect its interests.  The application is misconceived and an abuse of the court process. It is dismissed with costs.

36.	The orders of the Court are that:

1)	The application for judicial review is refused.

2)	The case is remitted back to National Court to determine and complete the balance of the proceedings before it. 

3)	The Applicant shall meet the costs of the application.	

________________________________________________________________
Liria Lawyers:	 	Lawyers for the Applicant
Public Solicitor: 		Lawyers for the Respondent