SC2804

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA 183 OF 2023

BETWEEN:
LARRY ANDAGALI
Managing Director, Trans Wonderland Limited
First Appellant

AND:
TRANS WONDERLAND LIMITED
Second Appellant

AND:
RICHARD PUARA
First Respondent

AND:
LAND TITLES COMMISSION OF PAPUA NEW GUINEA
Second Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

WAIGANI: HARTSHORN J
5 AUGUST, 11 SEPTEMBER 2024

PRACTICE AND PROCEDURE - Application for joinder - two joinder applicants apply to be added as third and fourth appellants to appeal pursuant to Order 11 Rule 11 Supreme Court Rules - whether this application is an abuse of process - to appeal a judgment after leave to appeal that judgment has been refused and also after the right conferred by statute to have that application for leave to appeal determined by the Full Court has expired is an abuse of the Court’s process - application for joinder dismissed as an abuse of process.

Cases cited
Pokia v. Yallon (2014) SC1336 
Nae Limited v. Curtain Bros Papua New Guinea Ltd (2015) N6124
Telikom (PNG) Ltd v. Rava (2018) SC1694
National Airports Corporation v. Simitap (2019) SC1883
Talibe Hegele v. David Manau (2023) SC2505

Counsel
Mr. A. Benny for the appellants
Mr. N. Yalo for the first respondent
Mr. P. H. Pato for the applicants for joinder

1. HARTSHORN J: This is a decision on a contested application for joinder. The Kaevaga Incorporated Land Group and Mr. Nou Nou (two joinder applicants) apply to be added as the third and fourth appellants to this appeal pursuant to Order 11 Rule 11 Supreme Court Rules.

2. The first and second appellants do not oppose the application for joinder and support the submissions of the two joinder applicants. The first respondent, Mr. Richard Puara, opposes this application for joinder and submits amongst others that it is an abuse of process.

Background

3. The appellants appeal a judgment of the National Court (Decision appealed) which amongst others, concerns land known as Portion 3959C Milinch Granville Fourmil of Port Moresby, National Capital District, Certificate of Title Volume 37 Folio 248, the registered proprietor of which is the first respondent.

Application for joinder

4. The two joinder applicants seek to join this appeal as they submit that they have sufficient interest in the subject matter of the appeal and that they were parties to the National Court proceeding from which this appeal emanates. Further, the orders of the Decision appealed directly affect them both and that they are referred to in the said orders. The two joinder applicants claim that they were original customary landowners of the subject land and the outcome of the appeal will affect their interests.

5. The first respondent submits that the two joinder applicants have no sufficient interest in this appeal as the first respondent has a clear indefeasible title to the subject land; that any rights that they may have had are now extinguished and there is an absence of a pleading of fraud; it is not necessary for the two joinder applicants to be joined to ensure that all matters in dispute be effectively and completely adjudicated upon; the relief sought in the appeal will neither affect or benefit the two joinder applicants and the application is an abuse of process as it constitutes a second bite of the cherry to prosecute the same cause of action.

Consideration

6. The two joinder applicants in another proceeding applied unsuccessfully for leave to appeal the National Court judgment which the appellants seek to appeal in this proceeding. In proceeding SCA 180 of 2023 Nou Nou and Anor v. Richard Puara and Ors, I heard the application for leave to appeal and refused that application on 22nd March 2024. In answer to the question posed by this court, whether there was an issue with me hearing this application, counsel for the two joinder applicants and counsel for the first respondent both informed the court that there was not an issue and I could hear this application.

7. The first issue I consider on this application is whether this application is an abuse of process.

8. The first respondent submits that this joinder application is an abuse of process as the two joinder applicants are seeking to have a “second bite of the cherry”.

9. The two joinder applicants submit that this application is merely a joinder application in respect of an existing appeal and so is not a duplication of proceedings; it is not an application for leave to appeal, it is not a new proceeding and the argument concerning whether fraud was pleaded is an argument for the substantive appeal; there is no law that prevents an unsuccessful applicant for an application for leave to appeal making a joinder application in an existing appeal and there is no evidence of prejudice which will be caused to the first respondent.

10. The first respondent relies upon the following passage from 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).”

11. That in this instance the two joinder applicants are seeking to join as appellants in an existing appeal, does not detract from the effect of their application to join, if successful, being that they will be appealing against the same National Court judgment in respect of which they have been refused leave to appeal. Further, it is noted that there is no evidence of any application being made by the two joinder applicants pursuant to s. 10(2) Supreme Court Act and pursuant to Order 11 Rule 25 Supreme Court Rules to have the application for leave to appeal determined by the full Supreme Court after the refusal of the application for leave to appeal. 

12. I refer to the judgments of Telikom (PNG) Ltd v. Rava (2018) SC1694; National Airports Corporation v. Simitap (2019) SC1883 and Talibe Hegele v. David Manau (2023) SC2505 and the cases referred to therein concerning the Court’s inherent jurisdiction to consider and determine the issue of abuse of process and to ensure the Court’s processes and procedures are not abused.

13. Further, as I did in Nae Limited v. Curtain Bros Papua New Guinea Ltd (2015) N6124, I reproduce the following classic statement of Lord Diplock in the House of Lord’s decision of Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC 529, as to the inherent jurisdiction of a court to deal with an abuse of its process:

“This is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied;………  It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.”

14. To in effect, apply to appeal a judgment after leave to appeal that judgment has been refused and also after the right conferred by statute to have that application for leave to appeal determined by the Full Court has expired, to my mind, is an abuse of the Court’s process. It may also be described as an attempt to have “a second bite of the cherry” by the two joinder applicants.

15. Consequently, the application for joinder should be dismissed as an abuse of process. Given this, it is not necessary to consider the other submissions of counsel.

Orders

16.   The Court orders that:

a)	The application for joinder is dismissed as it is an abuse of the Court’s process;

b)	The costs of and incidental to the said application for joinder shall be paid by the two joinder applicants to the first respondent to be taxed if not otherwise agreed.
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Lawyers for the appellants: Niuage Lawyers
Lawyers for the first respondent: WKY’s Legal Services
Lawyers for the two joinder applicants: Parker Legal