SC821

PAPUA NEW GUINEA
[In the Supreme Court of Justice]

SCR 34 of 2004

BETWEEN

PNG WATERBOARD
Applicant

AND

GABRIEL M. KAMA & ORS
Respondent

WAIGANI: SEVUA, MOGISH & LAY, JJ
2005		:	2 September & 16 December

ADMINISTRATIVE LAW – Judicial review – Jurisdiction of Supreme Court – Can a Supreme Court review decision of another Supreme Court? – No power to review decision of differently constituted Court under Constitution s.155 (2)(a) and (4).

PRACTICE AND PROCEDURE – Supreme Court – Judicial review – Appeal dismissed by Supreme Court for want of prosecution – Application to review – Does the Supreme Court have power to review decision of a differently constituted Court – No jurisdiction and no judicial review under Constitution, s.155 (2) (b) and (4).

Cases cited:
TST Holdings Pty Ltd & Anor v. Tom Pelis & Anor. (1997), unreported, SC534, 27 November 1997.
Application of Wili Kili Goiya [1991] PNGLR 170
Isidore Kaseng v. Rabbie Namaliu & The State (No. 2) [1995] PNGLR 481
Menapo Tulia & Ors v. Eka Lama & Ors (1998) unreported and unnumbered, (WS 1112 of 1995), 24 July 1998.

J. Poro for Respondent

16 December 2005

BY THE COURT:	The respondent has applied to this Court for an order to dismiss the Application for Review filed by the applicant on 26 May 2004 on the ground that the review procedure provided for under the National Land Registration Act 1977 has already been utilized and the review by the National Court had already been determined on 8 February 2002.

The applicant in this review was not represented by counsel when the respondent’s application was moved on 2 September 2005. However, that is of no consequence to the Court. We will make some remarks on this issue later as failure by lawyers to appear in the highest Court of the land is becoming prevalent and is of concern to the Court.

This review relates to certain decisions by the National Court and the National Land Commission (hereinafter the Commission), constituted by National Land Commissioner, Nathanias Marum over the Rebiamul Land, Portions 1044, 1054 and 1055 in Mt. Hagen, Western Highlands Province, where the applicant, PNG Waterboard, operates a reservoir, water treatment plant and pipelines supplying water to consumers in Mt Hagen.

The facts are these. On 13 September 1999, the Commission made a decision in respect of payment of compensation to the claimants whom we assume to be the traditional landowners of the land, the subject of this review. The decision is actually an order for settlement payment in respect of the said land which had been declared National Land in Gazette No. 51 on 15 April 1999.

The order is in the following terms:-

"That the State to pay claimants of REBIAMUL – PORTIONS 1044, 1054, 1055 MT HAGEN WATER SUPPLY TREATMENT PLAN AND PIPELAND IN WESTERN HIGHLANDS PROVINCE THE SUM OF FIVE HUNDRED KINA (K500,000.00) only for Land Compensation claim under National Land Registration Act.

The Commission further orders that PNG Waterboard pays 75% and the State to pay 25% of the total amount awarded.

The payment shall be made in this manner as (sic) subject to Section 44(2) of the National Land Registration Act.

The payment shall be made to spokesman Mr. Gabriel M. Kama who shall cause the sum (sic) distributed according to the Customary Land Tenure System practised locally.

Dated at PORT MORESBY this 13TH day of SEPTEMBER 1999."

The order was signed by N. Marum CBE, Commissioner, under the common seal of the National Land Commission.

On 2 December 1999, an application for judicial review of that decision was filed by PNG Waterboard. On 16 December 1999, the National Court granted leave to review that decision. On 21 November 2001, the substantive judicial review was heard by Los, J. On 8 February 2002 the National Court dismissed the application for review.

The PNG Waterboard then, being aggrieved by the National Court decision, filed an appeal to the Supreme Court on 13 March 2002. An application by the respondent to dismiss the appeal was refused, but the Supreme Court allowed the applicant to amend its grounds of appeal. On 20 March 2003, the applicant filed an application to amend its grounds of appeal filed on 13 March 2002. On 25 September 2003, the applicant, by way of a motion, applied to the Court to withdraw its motion filed on 20 March 2003. On 9 December 2003, a formal order for the withdrawal was entered.

The appeal by way of Notice of Motion was then left to be prosecuted. However on 3 March 2005; the Supreme Court ordered that the appeal be dismissed for want of prosecution, and further ordered the appellant to pay the sum of K375, 000.00 to the respondent with 8% interest from the date of the National Court decision on 8 February 2002.

The applicant, PNG Waterboard, then filed the present Application for Review on 26 May 2004. Since then, the substantive application has not been prosecuted by the applicant hence, this application to dismiss, by the respondent.

The respondent’s application is supported by the affidavit of counsel, John Poro sworn on 2 May 2005, and the affidavit of Gabriel Mage Kama, sworn on 12 May 2005; and both filed herein on 16 May 2005. There is also a further affidavit of service by Gabriel Kama which relates to service of the respondent’s application and the affidavits in support on Messrs Young & Williams Lawyers for the applicant. 

As we alluded to earlier, the applicant was not represented at the hearing and no courtesy has been extended to the Court by Young and Williams as to why no lawyer from that firm appeared at the hearing. In fact, Mr. Poro informed the Court at the hearing of the respondent’s application that he and Ms. Eliakim of Young & Williams had attended before the Deputy Registrar at a Call-Over, and had agreed that this matter would proceed on 2 September 2005. It is rude and discourteous for Ms. Eliakim not to appear before the Supreme Court in this matter, let alone writing to explain why she would not appear. Be that as it may, the Supreme Court is not going to wait for Ms. Eliakim or Young & Williams Lawyers. The failure to appear by counsel in the highest Court of the land is becoming a culture entrenched in the legal fraternity, and perhaps the time has come to punish law firms and their lawyers for showing disrespect to the Supreme Court. In this case, we refer Ms. Eliakim to the Statutory Committee of the Law Society for disciplinary action.

The respondent’s counsel has filed a written submission in support of his client’s application to dismiss the review application. It is not necessary to refer to all the submissions made orally and in writing. Suffice it to say that, since the review application was field on 26 May 2004, to the date of hearing the respondent’s application on 2 September 2005, a period of a little over 1 year and 4 months, no attempt to prosecute the review application has been made by the applicant, PNG Waterboard. He can only assume this to be a contumelious delay.

Mr. Poro has referred us to two Supreme Court decisions – TST Holdings Pty Ltd & Tan Siew Tan v. Tom Pelis and Pelton (1997) unreported and unnumbered, 27 November 1997 and the Application by Wili Kili Goiya [1991] PNGLR 170. Counsel also referred to Isidore Kaseng v. Rabbie Namaliu & The State (No. 2) [1995] PNGLR 481; and an unreported decision by Sawong, J in Menapo Tulia & Ors v. Eka Lama & Ors (1998) unreported and unnumbered (WS 1112 of 1995) on the issue of res judicata. Again, it is unnecessary to address these authorities.

It is our view that the issue here is a minor one which can be disposed off without much discussion of the law. Whilst we consider that the other issues are relevant, we are of the opinion that we need only refer to TST Holdings Ltd case to highlight the law and the basis of our conclusion.

There is no dispute that another Supreme Court has already dismissed the applicant’s appeal relating to the same matter, for want of prosecution. The applicant cannot have a second bite at the cherry when it failed to prosecute its earlier appeal. Section 155 (4) Constitution cannot be utilized to remedy a litigant’s failure to prosecute its case before the Supreme Court. In our view, that is mischievous and an abuse of the Court process. The Court has powers to prevent litigants from abusing its process.

However, we refer to TST Holdings Ltd (supra) and cite with support and approval what the Supreme Court said in that case. At p.3 of the judgment, the Court, comprising of the most senior members of the judiciary said:

"The first issue in this application therefore is whether the Supreme Court can review its own earlier decision, in the same matter, pursuant to s.155 (4), where that earlier decision was made pursuant to an appeal under the Supreme Court Act, and that decision was dispositive of the appeal.

The appeal was dismissed for want of prosecution, pursuant to the Rules of the Supreme Court. That, in our opinion is the end of that appeal. It is a final decision and not merely an interlocutory one that could be restored in any way." (our emphasis).

In the criminal context of a s.155 (2) (a) and s.155 (4) Constitution applications, the Supreme Court had another occasion to consider a similar issue in the Application by Wili Kili Goiya, [1991] PNGLR 170. The Court held that:

(a)	s.155 (2) (a) of the Constitution prohibits any further or other right of appeal.

(b)	s.155 (4) of the Constitution does not permit a differently constituted Supreme Court to review that determination.

We agree wholeheartedly with those principles of law and apply adopt and apply them in the present case. 

The Court in TST Holdings also cited Isidore Kaseng (No. 2) (supra), where another similar issue was considered. The facts are not relevant here, but the decision of the Court is. The Court held that the application was incompetent and an abuse of the process.

Given the persuasive nature of those decisions, we have no valid reason to depart from the law as established in this jurisdiction by those cases. We therefore uphold the position in law that where a Supreme Court has previously dismissed a case, a differently constituted Supreme Court has no jurisdiction to review the decision of that Supreme Court. That is trite law.

As we adverted to earlier, in the present case, the applicant had appealed to the Supreme Court against the National Court decision of 8 February 2002. The Supreme Court dismissed that appeal for want of prosecution on 3 March 2003. Now the applicant seeks a purported review of that dismissal under s.155 (2) (b) Constitution. On the authority of the Supreme Court cases that have established the law on this issue, the dismissal of the appeal by the Supreme Court on 3 March 2003 was a final disposition of that matter. There is no right of appeal or review to another differently constituted Supreme Court. We find that the present application by the PNG Waterboard is a frivolous, vexatious and an abuse of the Court process, which should be stopped on its tracks.

It is our humble opinion that the application by the PNG Waterboard has no legal or constitutional basis. It is misconceived, unmeritorious, and a clear abuse of the process of the Court. The authorities which we have cited are quite clear therefore there was no basis at all for the applicant to file this application.

In the final analysis, we order that the application for review is dismissed with costs to the respondent on an indemnity basis. 

In relation to the question of costs on a solicitor client basis, the applicant had been forewarned by the respondent that if the application proceeded, the respondent would claim costs on a solicitor client basis. We are therefore of the view that the respondent is quite entitled to costs on an indemnity basis. Of course the applicant did not appear so in our view, it has waived its right to be heard on costs. It is therefore unnecessary to reserve on the question of costs.

Accordingly we make the following orders:- 

1.	That the application to review is dismissed. 

2.	That the applicant pays the respondent’s costs on an indemnity basis.

Orders accordingly.

Lawyer for Applicant		:	Young & Williams
Lawyer for Respondent	:	Poro Lawyers