SC2306

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 6 OF 2021

REVIEW OF JUDICIAL ACT OF THE NATIONAL COURT
PURSUANT TO s. 155(2)(b) OF THE CONSTITUTION

APPLICATION BY:
HOWARD MALISO
Applicant

AND:
THE HON. JAMES MARAPE Prime Minister of Papua New Guinea, CHIEF JUSTICE GIBBS SALIKA, HON. BELBEN NAMAH MP Leader of the Opposition, HON. PHILLIP UNDIALU MP Chairman Permanent Parliamentary Committee on Appointments and MR. APEO SIONE Chairman Public Service Commission the Ombudsman Appointing Committee (OAC)
First Respondent

AND:
APPOINTED CHIEF OMBUDSMAN
RICHARD PAGEN
Second Respondent

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Respondent

Waigani: Hartshorn J
2021: 15th & 30th April

 SUPREME COURT – REVIEW - Application for leave to review – applicant applying for leave to review after withdrawal of notice of appeal filed within prescribed appeal period – whether filing application for leave to review is an abuse of process after having filed an appeal within prescribed time – an appellant cannot use the review jurisdiction after exhausting the appeal process allowed by law – amount to abuse of process – application for leave to review dismissed as abuse of process

Cases Cited:

Application by Anderson Agiru (2002) SC686
Application by Herman Joseph Leahy (2006) SC855
Jacob Popuna v. Ken Owa (2017) SC1564
Telikom (PNG) Ltd v. Rava (2018) SC1694
National Airports Corporation v. Anthony Simitap (2019) SC1883

Counsel:

Mr. H. Maliso, the Applicant in Person
Mr. S. Phannaphen, for the Second Respondent
Ms. I. Mugugia, for the Third Respondent

30th April, 2021

1. HARTSHORN J: This is a decision on whether an application for leave to review a decision of the National Court, brought pursuant to s. 155(2)(b) Constitution, is an abuse of process.

Background

2. The National Court refused the application of the applicant for leave to judicially review a decision of the first respondent to appoint the second respondent as the Chief Ombudsman on 6th November 2020 (decision to be reviewed). The applicant had appealed the decision to be reviewed to the Supreme Court within the prescribed appeal period of 40 days. The applicant then filed a notice of withdrawal of his appeal after the prescribed appeal period had elapsed. Further, a single Judge of this Court ordered that pursuant to the notice of withdrawal filed 22nd December 2020, the appeal stands withdrawn.

3. The applicant filed this application for leave to review on 22nd February 2021. The applicant submits that he is entitled to file this application and did so after realising he had made an error in his appeal after being notified of such by a notice of objection to competency which was filed in the appeal. The applicant withdrew his appeal and then filed the application for leave to review as by then, the prescribed appeal period had expired.

4. The second and third respondents submit that the filing of an application for leave to review a National Court decision, pursuant to s. 155(2)(b) Constitution, after the right of appeal has been exercised in respect of the same decision, is an abuse of process.

Consideration

5. 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:

a)	where parties have allowed a statutory right to appeal to expire;
b)	where a right of appeal is prohibited or limited by law;
c)	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.)

6. In this instance, as to category one above, the applicant appealed within the appeal period and then withdrew his appeal. He did not allow the statutory right of appeal to expire without filing an appeal. The applicant submits that the circumstances of his case differ from those in Simitap (supra). In Simitap (supra) the applicant chose to discontinue, whereas the present applicant submits that he had to withdraw his appeal and file a review application once he realised that he had made an error in his appeal. To my mind, this distinction is immaterial. The point is that the applicant did exercise his right of appeal by filing an appeal within the prescribed appeal period.
7. 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. He however, withdrew his 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.
8. As the Court did in Simitap (supra), I also refer to the following Supreme Court cases and statements made therein reproduced in Jacob Popuna (supra):
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).”

9. I 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.”

10. That in this instance the applicant withdrew his appeal, as distinct from it being dismissed, does not detract from the applicant having exercised his right to appeal within the appeal period and then electing to forego his right of appeal by withdrawing the appeal. To then seek to review a National Court decision in respect of which he has withdrawn an appeal, is in my view, attempting to have, “a second bite at the cherry”. 

11. 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. 

Orders

12. It is ordered that:

a)	This application for leave to review is dismissed;
b)	The applicant shall pay the costs of the second and third respondents’ of and 	incidental to the said application, to be taxed if not otherwise agreed.
__________________________________________________________________
Howard Maliso: The Applicant In person
Lhyrn Lawyers: Lawyers for the Second Respondent                          
Office of the Solicitor General: Lawyers for the Third Respondent