SC2320

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 14 OF 2021 

REVIEW PURSUANT TO s. 155(2)(b) CONSTITUTION

BETWEEN:

  DR. SAMSON AMEAN 
in his capacity as the Provincial Administrator of Enga Province  
 Applicant

AND:
DR. PHILIP KEREME 
in his capacity as the Chairman of Public Service Commission
First Respondent

AND:
THE INDEPENDENT STATE OF 
PAPUA NEW GUINEA
Second Respondent

AND:
JUSTIN ISSAK
Third Respondent

 Waigani: Hartshorn J 
       2022: 19th August, 27th October   

SUPREME COURT REVIEW - Application for leave to review – applicant filed appeal within time and withdrew – applicant then files for leave to review – whether application is abuse of process -  three categories of cases for which the power of review pursuant to s. 155(2)(b) Constitution may be invoked – considered - where parties have allowed a statutory right to appeal to expire; where a right of appeal is prohibited or limited by law; where there is no other way of bringing a case to the Supreme Court - the applicant appealed within the appeal period and then withdrew his appeal – applicant did not allow the statutory right of appeal to expire without filing an appeal -  applicant did exercise his right of appeal by filing an appeal within the prescribed appeal period - 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 their right of appeal by withdrawing the appeal -  To then seek to review a National Court decision in respect of which they have withdrawn an appeal is abuse of process – application for leave to review is dismissed

Cases Cited:
SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170
Anderson Agiru v. Electoral Commission (2002) SC687
Application by Anderson Agiru (2002) SC686
Application by Herman Joseph Leahy (2006) SC855
Joseph v. Sereva (2011) SC1152 
Pokia v. Yallon (2014) SC1336
Jacob Popuna v. Ken Owa (2017) SC1564
National Airports Corporation v. Antony Simitap (2019) SC1883
John Darrel Ahwong v. Ala Ane (2021) SC2108

Counsel
Mr. M. Wangatau and Mr. N. Tombian of Counsel, for the Applicant
Mr. R. Uware of Counsel, for the First and Second Respondents
Mr. J. Issak in person, the Third Respondent

27th October, 2022

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

Background

2. The National Court dismissed a judicial review proceeding on 17th March 2021 (decision to be reviewed) for want of prosecution. The applicant had sought to judicially review the decision of the first respondent which amongst others, had reinstated the third respondent as Director Legal Services for Enga Provincial Administration.

3. The applicant filed an application for leave to appeal (appeal) the decision to be reviewed to the Supreme Court within the prescribed appeal period of 40 days. The applicant then withdrew his appeal after the prescribed appeal period had elapsed.

4. The applicant filed this application for leave to review on 24th May 2021. He filed an amended application for leave to review on 23rd August 2021. An objection to competency of the application for leave to review was dismissed by the full Court on 27th May 2022.

5. The applicant submits that he is entitled to file this application for leave to review and did so after realising that an error had been made in filing the appeal under Order 7 Supreme Court Rules instead of Order 10 Supreme Court Rules.

6. In response to an issue raised by this court, the applicant submits that this application for leave to review is not an abuse of process notwithstanding that the appeal had been filed within the prescribed 40-day appeal period and was then withdrawn after that period had expired. This is because, it is submitted, that the applicant had no other recourse available to him other than filing an application pursuant to s. 155(2)(b) Constitution after withdrawing his appeal and further, that the Supreme Court in Joseph v. Sereva (2011) SC1152 permits exceptions if an appellant mistakenly interprets the Supreme Court Act or Rules concerning the filing of an appeal.

7. The applicant also submits that leave to review the decision to be reviewed should be granted as he has the requisite standing, there is a reasonable explanation concerning the filing and withdrawal of the appeal, there was no significant delay in filing this application for leave for review, that there are exceptional circumstances showing a manifestation of a substantial miscarriage of justice by the primary judge and that it is in the interests of justice.

8. The first and second respondents submit amongst others, that this application is an abuse of process. The applicant could have taken other steps in relation to his appeal such as filing a supplementary notice of appeal or applying for an extension of time in which an appeal could be filed it is submitted.

9. The third respondent submits amongst others that this application should be refused as this application is an abuse of process, a satisfactory explanation concerning the filing and withdrawal of the appeal has not been given, there are no exceptional circumstances that warrant leave being granted and it is not in the interests of justice that leave be granted.

Consideration

10. I consider first whether this application is an abuse of process.

11. 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.)

12. 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 did exercise his right of appeal by filing an appeal within the prescribed appeal period. 
13. 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.
14. The applicant submits that this application is not an abuse of process as he had no other recourse but to make an application pursuant to s. 155(2)(b) Constitution. This, however, was after he had filed and withdrawn his appeal. The applicant did have a way to bring his case to the Supreme Court. That was by way of an appeal. The applicant exercised that right. That the applicant then withdrew his appeal does not mean that he had no other way to bring his case to the Supreme Court. 
15. The applicant also relies upon the Supreme Court case of Joseph v. Sereva (supra). I was a member of that Court. At [11] the Court said:
“11.      Further, one of the concerns of the Supreme Court in Pere’s case (supra) was that if a leave application was found incompetent as it was not necessary and a notice of appeal had not been filed in time, the appellant’s rights would be at an end with no other recourse available. We are of the view however that in such a circumstance, an appellant may have the recourse of seeking a review pursuant to s. 155 (2) (b) Constitution.”

16. Joseph v. Sereva (supra) was concerned with whether an application for leave to appeal was required to appeal a dismissal of a proceeding by the National Court and whether an unnecessary leave to appeal application is incompetent or should be treated as a notice of appeal.
17. This application before the court is an application for leave to review and not an application for leave to appeal. It is distinguishable on its facts from those in Joseph v. Sereva (supra). Further, the comments contained in [11] were not necessary for the determination of the issues before that Court and are obiter. Moreover, notwithstanding that in this case the applicant filed an application for leave to appeal and the Joseph v. Sereva (supra) case was concerned with an application for leave to appeal, in this instance it is not controversial that the applicant made the decision to withdraw the application for leave to appeal whereas in Joseph v. Sereva (supra), the Court determined that the application for leave to appeal was incompetent. It is in the context of a court dismissing an application for leave to appeal as distinct from a conscious decision to withdraw an application for leave to appeal, that the obiter comments of the Court in [11] of Joseph v. Sereva (supra) should be considered.
18. 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).”

19. 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.”

20. 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 their right of appeal by withdrawing the appeal. To then seek to review a National Court decision in respect of which they have withdrawn an appeal, is in my view, attempting to have, “a second bite at the cherry”. (See John Darrel Ahwong v. Ala Ane (2021) SC2108)

21. 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. Given this, it is not necessary to consider the other submissions of counsel.

Orders

22. It is ordered that:

a)	This application for leave to review is dismissed;
b)	The applicant shall pay the costs of the respondents’ of and incidental to the 	said application, to be taxed if not otherwise agreed.

__________________________________________________________________
Ace Lawyers: Lawyers for the Applicant                                          
Office of the Solicitor General: Lawyers for the First and Second Respondent