SC2851
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCAPP 77 OF 2025

BETWEEN:
KALGREGOS ELECTRONICS
LIMITED
Applicant

AND:
MAMUN INVESTMENTS
LIMITED
Respondent

WAIGANI: HARTSHORN J
4, 16 DECEMBER 2025

SUPREME COURT – PRACTICE AND PROCEDURE - Application for leave to review

Cases cited
Jacob Popuna v. Ken Owa (2017) SC1564 
Telikom (PNG) Ltd v. Kila Ravu (2018) SC1694
National Airports Corporation v. Simitap (2019) SC1883
Pacific Trade International Ltd v. Waisime (2020) SC2053
Jim Takapo v. KS Akusa Ltd (2021) SC2159
Barrick (Niugini) Ltd v. Nekitel (2021) SC2092
John Darrel Ahwong v. Ala Ane (2021) SC2108 
Trevor Meauri v. Dr. Philip Kereme (2022) SC2284
Yapi Giwi v. Jacob Popuna (2024) SC2686
Counsel

Mr. Y. Awi for the applicant
Ms. B. Poki for the respondent

1. HARTSHORN J: This is a decision on a contested application for leave to review a National Court decision and order.

Background

2. The subject of the dispute between the parties is a certain property in Mt. Hagen, Western Highlands Province (property). By orders made on 14th December 2021 entered on 16th December 2021, the National Court ordered amongst others, that the respondent Mamun Investment Limited was the registered proprietor of the property and that the applicant shall give vacant possession of the property (decision to be reviewed).

3. The applicant was unsuccessful with a notice of motion to set aside the decision to be reviewed. The notice of motion was dismissed on 11th February 2022 (set aside dismissal). The applicant then filed an appeal against the set aside dismissal on 18th February 2022. The Supreme Court on 2nd March 2022, on its own motion, after hearing a stay application, ordered amongst others, that the applicant has leave to amend its notice of appeal so that the decision to be reviewed as well as the set aside dismissal are the subject of the appeal. 

4. On 21st March 2022 the applicant filed a supplementary notice of appeal in which the decision to be reviewed and the set aside dismissal are appealed. On 29th October 2024 the appeal was dismissed following the hearing of the respondent’s objection to competency. An application for leave to make a slip rule application by the applicant was dismissed on 30th July 2025.

Abuse of process

5. The respondent and this Court raised the issue of whether this proceeding is an abuse of process. This Court is able to raise an abuse of process issue on its own volition and as prescribed in Order 13 Rule 16(1)(c) Supreme Court Rules: see Yapi Giwi v. Jacob Popuna (2024) SC2686; Barrick (Niugini) Ltd v. Nekitel (2021) SC2092.

6. The issue of whether this proceeding is an abuse of process arises as it is not controversial that there has been an appeal by the applicant against the decision to be reviewed. There are numerous judgments of the Supreme Court to the effect that an application for leave to review or review made after the decision sought to be reviewed has been the subject of an appeal, is an abuse of process: see National Airports Corporation v. Simitap (2019) SC1883; Jacob Popuna v. Ken Owa (2017) SC1564; Trevor Meauri v. Dr. Philip Kereme (2022) SC2284; John Darrel Ahwong v. Ala Ane (2021) SC2108; Telikom (PNG) Ltd v. Kila Ravu (2018) SC1694 and Jim Takapo v. KS Akusa Ltd (2021) SC2159. 

7. The applicant submits that in this instance, its appeal against the decision to be reviewed was as a result of an order made by Logan J on 2nd March 2022 and was not as a result of a decision made by the applicant. Therefore, it is submitted, this proceeding is not an abuse of process as the applicant is not having a “second bite of the cherry”. 

Consideration

8. As to what constitutes an abuse of process in the context of this case, as I did in Jim Tapako v. KS Akusa Ltd (supra) at [9] and Meauri v. Kereme (supra) at [11], I reproduce the following passages:

“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).”

d)	Jacob Popuna v. Ken Owa (2017) SC1564 at [16]:

“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.”

9. I also reproduce [12] to [16] of Meauri v. Kereme (supra):

12.  I also refer to the judgments of John Darrel Ahwong and Ors v. Ala Ane and Ors (2021) SC2108, Telikom (PNG) Ltd v. Kila Ravu and Ors (2018) SC1694 and National Airports Corporation v. Simitap (2019) SC1883.  These judgments all concerned proceedings which were held to be an abuse of process. The various proceedings in these cases were seeking a review under s. 155(2)(b) Constitution  of judgments notwithstanding that appeals had previously been filed in respect of those judgments.

13.  In this instance, it is not disputed that an appeal was filed against the decision to be reviewed and was dismissed for being incompetent. 

14. 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 where:

a)	parties have allowed a statutory right to appeal to expire;
b)	a right of appeal is prohibited or limited by law;
c)	there is no other way of bringing a case to the Supreme Court.

(The Supreme Court cases of Application by Anderson Agiru (2002) SC687 and Application by Herman Joseph Leahy (2006) SC855 are cited as examples.)

15.  Here, as to category one above, the applicant appealed within the appeal period. He did not allow the statutory right of appeal to expire without filing an appeal. 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. The appeal however, was found to be incompetent. 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.
16. As to the submission of the applicant that notwithstanding that the applicant has already exercised his appeal rights, leave to review should be permitted as the primary judge committed grave errors in his consideration and determination of the decision to be reviewed: the Supreme Court does not have the inherent power to review all or any judicial acts of the Supreme Court: Special Reference by Hon. Davis Steven (2020) SC2041 at [13]. If leave to review was granted in this instance, this court would be countenancing in effect, that the Supreme Court has the jurisdiction to review a decision of itself, that decision in this instance being the dismissal of the appeal of the decision to be reviewed. The Supreme Court does not have that jurisdiction or power. An application seeking such relief is an abuse of process.”

10. In this instance, as referred to, the applicant submits that its application for leave to review is not an abuse of process as the appeal of the decision to be reviewed occurred as a result of the decision of Logan J on 2nd March 2022.

11. When the said order made by Logan J is perused, it is clear that His Honour gave leave to the applicant to amend its notice of appeal to include the decision to be reviewed. The applicant then availed itself of that leave and amended the notice of appeal. The order of Logan J gave the opportunity to the applicant to appeal the decision to be reviewed, after the statutory appeal had expired. It is not controversial that there was an appeal filed in respect of the decision to be reviewed and that it was adjudicated upon by the full Supreme Court. 

12. I am satisfied for the above reasons that the application for leave to review is an abuse of process and should be dismissed. Given this, it is not necessary to consider the other submissions of counsel, apart from as to costs.

13. The respondent seeks costs against the lawyer for the applicant personally on an indemnity basis. Notice had been given to the lawyer for the applicant that such an order would be sought if the application for leave to review was not withdrawn or was unsuccessful. The lawyer for the applicant opposes this order sought and submits that he was acting upon instructions.

14. In the letter written to the lawyer for the applicant dated 13th November 2025, the lawyers for the respondent informed amongst others, that this application for leave to review was incompetent, was an abuse of process and that the grounds raised therein were res judicata. The lawyers for the applicant were further informed in the said letter that they owe a duty of care to the applicant to provide sound and appropriate legal advice on the prospects of success of this case amongst others and whether the application for leave to review was an abuse of process. The lawyers for the applicant replied amongst others, that they were acting upon instructions.

15. In Pacific Trade International Ltd v. Waisime (2020) SC2053 at [16] and [17] I said:

“When a client instructs a lawyer to make an application that simply has no merit, the lawyer should advise against the application being made. If the client persists with the instructions, the lawyer should cease representing the client unless the said instructions are withdrawn. Here, the applications have no merit. …….. The lawyers for the applicants were put on notice of the lack of merit of the applications and that an adverse costs order would be sought if the applications were brought and failed. Notwithstanding this, the applicants and their lawyers persisted with these applications.

17. I am satisfied that the necessary requirements for an order of solicitor client costs against a lawyer have been made out. I refer in this regard to the Supreme Court decision of Rex Paki v. Motor Vehicle Insurance Ltd (2010) SC1015. I am of the view that Wang Dee Lawyers in their letter to the lawyers for the applicants appropriately put them on notice that all lawyers owe a duty to explain to a client the ‘legal logic’ or otherwise of a client’s instructions. This necessarily includes the consequences of persisting with instructions that have no merit and which are most likely to fail. The instructions which the applicants gave to their lawyers had no merit and should not have been persisted with. That they have been is evidence that the applicants were not advised appropriately by their lawyers. To my mind, this is conduct which is unreasonable and sufficiently blameworthy such that solicitor client costs against the lawyers for the applicants should be ordered.”

16. In this instance, I am satisfied that the application for leave to review had little or no merit given the judicial authority on point. The lawyer for the applicant was specifically put on notice as to the application for leave to review being amongst others, an abuse of process and as to his duty to the applicant to provide sound and appropriate legal advice. Notwithstanding this notice the lawyer for the applicant persisted with instructions that had no merit and which were most likely to fail. As stated in Pacific Trade v. Waisime (supra), the instructions which the applicant gave to its lawyer had no merit and should not have been persisted with. That they have been is evidence that the applicant was not advised appropriately by its lawyer. To my mind, this is conduct which is unreasonable and sufficiently blameworthy such that solicitor and client costs against the lawyer for the applicant should be ordered.

Orders

a) This application for leave to review is dismissed

b) Mr. Yer Awi shall pay the costs of the respondent of and incidental to the said application for leave to review on a solicitor and client basis to be taxed if not otherwise agreed.
________________________________________________________________
Lawyers for the applicant	:         Awi Lawyers
Lawyers for the respondent:	Warner Shand Lawyers