SC 906

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 64 OF 2007

BETWEEN:

TELIKOM PNG LIMITED
Appellant

AND

Independent consumer and 
competition commission
First Respondent

AND

DIGICEL (PNG) LIMITED
Second Respondent

Waigani: Injia, DCJ, Kirriwom & Cannings, JJ.
2007: 1 & 2 November
2008: 28 March

PRACTICE AND PROCEDURE – abuse of process – whether multiplicity of proceedings amounts to abuse of process – discretion as to consequences of abuse.

JUDICIAL REVIEW – mode of commencement – circumstances in which Order 16, National Court Rules, must be used.

COURTS AND TRIBUNALS – res judicata – whether applicable if a previous decision on issues before a court has been made by an administrative tribunal – whether tribunal had determined merits of the issues before the court.

CIVIL PRACTICE AND PROCEDURE – Whether res judicata is a defence to an action which should be pleaded and tried.

The National Court dismissed proceedings brought by Telikom, seeking injunctions and declarations regarding the actions of ICCC and Digicel, on three grounds: (a) abuse of process (as Telikom had started a multiplicity of proceedings raising the same issues); (b) improper commencement (as Telikom did not approach the court under Order 16 of the National Court Rules); and (c) res judicata (as the merits of the issues raised had already been determined by a statutory tribunal). Telikom appealed and argued that each of the three grounds on which the National Court dismissed the proceedings involved errors of law.

Held:

(1)	A party commencing a multiplicity of legal proceedings concerning the same issues will commit an abuse of process unless very good reasons are shown to justify it.

(2)	A party wishing to challenge the decision of a governmental body or public authority must use Order 16 of the National Court Rules if orders in the nature of prerogative writs are sought. If only an injunction or declaration is sought, the plaintiff has a choice: Order 4 or Order 16 can be used.

(3)	The doctrine of res judicata operates when the issues between the parties have already been finally determined by a court or tribunal having lawful authority to do so.

(4)	Kirriwom & Cannings JJ: The National Court had correctly decided that Telikom was guilty of an abuse of process and that res judicata applied. The grounds of appeal concerning those issues were accordingly dismissed.

(5)	Injia DCJ (dissenting): The doctrine of res judicata is a substantive and complete Defence to an action which must be pleaded and tried.

(6)	Injia, DCJ, Kirriwom & Cannings JJ: The National Court erred in finding that Telikom was required to commence proceedings under Order 16 (as Telikom only sought declarations and injunctions). The ground of appeal concerning that issue was upheld.

(7)	Kirriwom & Cannings JJ: As there were good grounds for dismissing the National Court proceedings the appeal to the Supreme Court was dismissed.

(8)	Injia DCJ: (dissenting): The appeal should be allowed, the decision of the National Court should be quashed and the proceedings in WS No. 1599 of 2006 should be re-instated.

Cases cited:

Papua New Guinea Cases

Anderson Agiru v Electoral Commission and the State (2002) SC687
Birch v The State [1979] PNGLR 75
Charles Ombusu v The State [1996] PNGLR 335 
Curtain Brothers (PNG ) Ltd v UPNG (2005) SC788
Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705 
Gene v Hamidian-Rad [1999] PNGLR 444
National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264
NEC & Lucas v Public Employees Association of PNG [1993] PNGLR 264
NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135 
Niugini Mining Ltd v Joe Bumbandy (2005) SC804
Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425
PNG Forest Products Ltd v The State [1992] PNGLR 85
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812 
P.O.S.F. V Silas Imanakuan (2000) SC677
Rolf Schubert v The State [1979] PNGLR 66
Telikom PNG Ltd v ICCC and Digicel (PNG) Ltd, WS No 1599 of 2006, 05.07.07
The Administration of the Territory of Papua and New Guinea v Doriga Guba [1973] PNGLR 603
Titi Christian v Rabbie Namaliu (1996) Unnumbered and unpublished judgment in OS/SC No. 2 of 1995.
Van Der Kreek v Van Der Kreek [1979] PNGLR 185

Overseas Cases

Dianne McGrath Fingleton v The Queen [2005] HCA 34
House v King (1936) CLR 499
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 

APPEAL

This was an appeal against dismissal by the National Court of proceedings commenced in the National Court.

Counsel:

R J Webb SC, I Molloy and L Gavara-Nanu, for the Appellant
E Andersen and G Geroro, for the First Respondent
N M Cooke QC, M M Varitimos and F Griffin, for the Second Respondent

28 March, 2008 

1. INJIA, DCJ: The background of this appeal and the circumstances leading to the institution of various proceedings and the conduct of proceedings in the National Court, the grounds of appeal and the issues raised and argued in this appeal are set out in detail in the joint judgment of the majority which I adopt.

2. At the material time, Telikom was the only public entity licensed under the Telecommunication Act 1996 to operate mobile telecommunication services in Papua New Guinea. As such, Telikom enjoyed monopoly in the mobile telephone industry. On 27 March 2007, ICCC issued to Digicel a mobile telephone license, under Part VI of the Telecommunications Act, to operate a public mobile telephone network throughout Papua New Guinea. ICCC’s action introduced competition in the mobile telephone industry. ICCC’s action was purportedly taken under an agreement which ICCC claimed was reached between itself and Telikom to vary the relevant terms of a regulatory contract entered into between them. Telikom disputed such an agreement was reached to vary the terms of the regulatory contract. 

3. The relationship between Telikom and ICCC is governed by a regulatory contract entered into between them on 16 July 2002 under s 34-36 of the ICCC Act 2002. The regulatory contract is provided for in the ICCC Act and amendments made to the Telecommunications Act, which made Telikom a regulatory industry and came under the functions of ICCC. Clause 10 (a) of the regulatory contract provided that ICCC agreed not to issue any public mobile license to any person other than Telikom before 17 October 2007. Clause 11.1 provided for variation of a term of this contract by agreement between ICCC and Telikom. Certain actions taken including exchange of correspondences between ICCC and Telikom purportedly to vary clause 10 (a) to bring forward Telikom’s monopoly date from 17 October 2007 to 31 March 2006 became the subject of bitter contention between them. Several questions arose including whether there was a valid agreement reached to effect such variation. Questions concerning validity of the regulatory contract may have arisen but it was not raised and litigated in the Court below and it is not before us. 

4. There is no provision in the regulatory contract for the resolution of disputes arising under that contract. Such provisions are found in Part V of ICCC Act and Part XIX, Div. 1A of Telecommunication Act. Section 182A of the Telecommunication Act and Sections 47 of the ICCC Act both provide for the establishment of an "Appeals Panel" constituted by a panel of Experts which has power to decide such disputes. Upon application made by a regulated industry, the Appeals Panel conducts a review of the decision of ICCC and makes its own decision on the matter. Those provisions however do not preclude Court actions which may be commenced by a regulated entity in respect of the same decision. This is apparent from s 43 (1) of ICCC Act and s 182A (1) of Telecommunications Act, both of which provide that a regulated entity "may apply" to the Appeals Panel.

5. On 31 October 2006, ICCC commenced Court proceedings first in OS No. 811 of 2006 seeking declaratory relief. On 3 November 2006, Telikom responded by filing proceedings in WS No. 1599 of 2006. On 4 December 2006, the hearing of the proceedings in WS 1599 of 2006 and OS 811 of 2006 were consolidated by order of the Court. On 22 December 2006, Telikom filed judicial review proceedings in the National Court in OS No. 927 of 2006 (JR). Whilst those Court proceedings were pending determination, on 26 April 2006, Telikom applied to the Appeals Panel under s 182A of the Telecommunications Act seeking certain relief. The Appeals Panel was constituted by a one Mr R F Shrogen. On 24 May 2007, Mr Shrogen handed down his decision. He dismissed Telikom’s application and confirmed ICCC’s decision. Consequently, Digicel moved a motion in WS 1599 of 2006 seeking dismissal of the proceedings on various procedural grounds namely, Telikom abused Court process in commencing multiple proceedings over the same matter, Telikom failed to employ appropriate mode of commencement of proceedings and res judicata. On 5 August 2007, the Court granted the orders sought and dismissed the proceedings. Telikom appeals from that decision.

6. It is not contested that the Court did not determine the merits of Telikom’s case in WS 1599 of 2006. Telikom’s claim was substantive and of great commercial significance to the telecommunication industry in Papua New Guinea. The Court never got to trial to determine the merits of Telikom’s complaint. Telikom’s claim was decided wholly on procedural grounds.

7.	In this appeal, although the issues raised are simple and straightforward procedural issues, much time was spent by learned counsel on what I consider to be matters going to the merits of the substantive claim particularly. Each Counsel took us through all relevant statutory provisions in great detail and made extensive arguments on the facts and the application of the law to the facts, to support their respective positions on the key issues. Telikom says that as a result of the decision, it was prevented from litigating the merits of its case. ICCC and Digicel say Telikom did not have a case to warrant a trial on the merits. In my view, it is not necessary to consider all the material and submissions and make any determination on the merits of those substantive issues. This Court should confine its review to the procedural issues on which the proceedings in WS 1599 of 2006 was dismissed.

8.	The trial Court’s decision in an application to dismiss the proceedings on procedural grounds is an exercise of judicial discretion. Whilst this Court in cases before it has recognized the importance of protecting its process from abuse by parties and upheld dismissal of actions for this reason alone, it has also cautioned against rushing to judgment and dismissing proceedings without carefully considering the interest of justice in ensuring that parties are not disadvantaged or prevented from pursuing their rights in the matter. This Court has said that the discretion in favour of summarily dismissing a proceeding for non-compliance with procedural rules should be exercised with restraint, sparingly and in clear cases where good reasons are shown to exist: Niugini Mining Ltd v Joe Bumbandy SC 804 (2005); POSF v Silas Imanakuan (2000) SC 677, PNG Forest Products Ltd v The State [1992] PNGLR 85. 

9. There is no dispute on the three key issues which were decided against Telikom by the Court. They are:-

(1) whether Telikom abused Court process in instituting multiple proceedings; 

(2) whether Telikom abused the Court process in that it failed to employ the correct mode of commencing Court proceedings; and

(3) whether Telikom was estopped by the doctrine of res judicata and equitable estoppel from maintaining the proceedings. 

10. These are procedural issues. The first and second issues arise from an application of O 8 r 27 and O 12 r 40 of the National Court Rules. Abuse of process comes within these procedural provisions. The Notice of Motion pleaded these rules as grounds of dismissal: see Clause 8 of National Court (Motions Amendment) Rules 2005. The third issue does not come under the wording of O 8 r 27 and O 12 r 40 or under any provision of the National Court Rules. Res judicata and issue estoppel (both of which I will refer to as res judicata) are founded on the common law doctrine of res judicata. ICCC relied on all three grounds as alternative grounds of dismissal and dismissed the proceedings on each ground. 

11. I intend to first deal with res judicata because it appears from the judgment that res judicata was the main ground of dismissal. Further, res judicata is not a rule-based ground for dismissal of proceedings but founded on a substantive common law doctrine and it should be given proper attention. The common law doctrine of res judicata is recognized and adopted as part of the underlying law by Constitution, Sch. 2.8. Issue estoppel is an extension of res judicata. At common law, res judicata is a substantive plea and a complete defence to an action and it must be specifically pleaded and tried. In Halsbury’s Laws of England, 4th Ed. at par 973 the common law position is stated as follows:

"The most usual manner in which questions of estoppel has arisen on judgments inter partes has been where the defendant in an action raised a defence of res judicata, which he could do, where former proceedings for the same cause of action by the same plaintiff had resulted in the defendant’s favour, by pleading the former judgment by way of estoppel." 

12. However, depending on how narrow or wide the doctrine is viewed, the circumstances which may amount to a plea of res judicata may also constitute abuse of process and therefore fall under the provisions of O. 8 r. 27 or O. 12 r.40 of the National Court Rules. But because neither of these rules or any other provision in the National Court Rules make provision for res judicata as a basis for dismissal of the proceedings and because res judicata is a defence based on established principle of law, it is my view that res judicata should be specifically pleaded in this jurisdiction, to enable all parties and the Court to be informed of the legal and factual basis on which the defence is grounded and to give the plaintiff an opportunity to plead to the defence so that any issues raised by the defence are properly tried. 

 13. In the present case, pleadings in consolidated proceedings in WS 1599 of 2006 and OS 811 of 2006 were completed on 11 May 2007. Res judicata could not be pleaded because the Appeals Panel made its decision on 24 May 2007. On 7 June 2007, when Digicel filed its Motion, it did not raise res judicata as a jurisdictional basis for dismissing the proceedings but both parties, by agreement, introduced the issue in argument. The parties argued the issue before the Court below and there is no complaint before us that the issue was pre-maturely determined on its merits given the manner in which it was raised. The issue before us is whether the defendants established a case of res judicata and whether the Court erred. 

14. Whether the defence of res judicata is pleaded in a particular case and all the relevant issues arising from the various conditions which have to be fulfilled to establish res judicata are properly and fully argued before the Court is a matter for the parties but there is always the risk of great injustice to the merits of the issues under res judicata to be tried when res judicata is not pleaded as a defence and arguments are rushed at a preliminary hearing on an application for summary dismissal of the proceedings. There is also the risk that the Court may pre-maturely determine substantive issues raised by res judicata. 

15. There are a number of cases cited by counsel which set out the principles on res judicata as it applies in this jurisdiction. I prefer to adopt the principles laid down by the seven-men Supreme Court decision in Titi Christian v Rabbie Namaliu (1996) OS No. 2 of 1995, Unnumbered and Unpublished Supreme Court decision of Amet CJ, Kapi, DCJ, Los, Salika, Doherty and Andrew & Sevua JJ. A passage from the text The Doctrine of Res Judicata by Spencer Bower and Turner adopted by Amet CJ, contains a succinct summary of the basic principles on res judicata:

 "A final decision pronounced by a judicial tribunal having competent jurisdiction over the cause of matter and over the parties therein, disposes of once for all the matters decided so that they cannot afterwards be raised for re-litigation between the same parties or their privies. The effect of such a decision is two-fold.

In the first place, the judicial decision estops or precludes any party to the litigation from disputing, against any other party thereto, in any latter decision, the correctness of the earlier decision in law and fact. The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgment, decree or order necessarily established as the legal foundation or justification of the conclusion reached by the court. In the second place, by virtue of the decision the right or cause of action set up in the suit is extinguished, merging in the judgment which is pronounced. The result is that no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies."

16. In summary, in order for the defence of res judicata to succeed, a party relying on the doctrine must show:

1.	The parties in both matters are the same;

2.	The issues in both matters are the same;

3.	The previous judgment or decision extinguished the foundations of the claim or the right to set up an action. The result is therefore final and conclusive and it binds every other Court; and

4.	A Court of competent jurisdiction made the first decision.

17. Issue estoppel although related to res judicata arises where the causes of action are different but the parties or their privies are the same and the same issue is raised and conclusively determined by the Court. The passage from Halsbury’s Laws of England adopted by Amet CJ succinctly states the basic principle:

 "An estoppel which has come to be known as "issue estoppel" may arise where a plea of res judicata made not be established because the causes of action are not the same. A party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue has been solemnly and with certainty determined against him. Even if the objects of the first and the second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive in a second action between the same parties and their privies. This principle applies whether the point involved in the earlier decision, and as to which the parties are estopped, is on an error of fact or law, or one of mixed fact and law. The conditions for the application of this doctrine have been stated as being that:

 (1) the same question was decided in both proceedings;

 (2) the judicial decision said to create the estoppel was final; and

 (3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies". 

18. Telikom’s case on res judicata in the Court below was based on the absence of fulfilment of only one of the conditions of res judicata – the Appeals Panel did not make a final decision on the three key issues and instead left those issues to be determined by the Court in the proceedings pending before it. Telikom did not contest fulfilment of the other three conditions – the parties were the same, the key issues were the same and that the Appeals Panel was competent and had the jurisdiction to decide the key issues. From this, I would have to assume that Telikom accepted fulfilment of those three conditions of res judicata. Counsel made extensive submissions before us on those three conditions particularly on the issue of whether the Appeals Panel is a competent judicial tribunal which has jurisdiction to make a final and binding decision on the key issues but it is not necessary for this Court to determine the issues arising from those three conditions. 

19. Mr Webb submits the Court committed three errors in holding that the three key issues in WS 1599 had "read res judicata and or issue estoppel." First, the Appeals Panel did not make a final determination on the key issues. He refers to pertinent parts of the Appeal Panel’s written decision to support this submission. Secondly, there was no common cause of action. Thirdly, the Appeals Panel was not a judicial tribunal and it did not have authority to make a binding decision on any of the key issues. The first alleged error is properly raised before us because it relates to the only matter raised before the Court below. The second and third alleged errors relate to conditions of res judicata which Telikom did not advance before the Court below and it is not open to Telikom to raise them before us: Curtain Brothers (PNG) Ltd v UPNG (2005) SC 788. Therefore it is not necessary to consider extensive arguments on those matters by learned counsel. 

20. It follows that I would also refuse Telikom’s application for leave to amend ground 3 (a) of the Notice of Appeal to insert the word "judicially" before the word "determined" because to allow the amendment is to broaden the appeal grounds to permit Telikom to argue an issue which was not raised in the Court below.

21. There is no question that the appeal panel made a decision on the key issues. The issue before us is whether the Court erred in finding that the Appeals Panel made a final decision on the key issues. The answer turns on the text of the written decision of the Appeals Panel. The Appeals Panel delivered a written decision and reasons for decision as required by s 182A (6) of Telecommunications Act which provides: 
 
"(6) The appeal panel shall give the applicant written notice of the decision and the reasons for the decision, on the review".

22. The requirement to give written decision and reasons for decision is significant. The decision consists of the decision itself and the reasons for decision and they must be read and understood as a single act. The written decision is conclusive as to the matters considered and determined by the tribunal and it should speak for itself. Any subsequent attempt made by parties to the proceedings to introduce extrinsic material or accord interpretations which are inconsistent with the text of the written decision should be discouraged. 

23. The Appeals Panel delivered a 15-page written decision. The panel’s decision which appears on the last page of the written decision is set out in detail on the front cover page as follows:

"THE APPEALS PANEL DECIDES THAT:

1.	The decision of the Independent Consumer and Competition Commission to make a declaration concerning licence conditions under s 63 (1)( c ) of the Telecommunications Act 1996 is confirmed.

2.	The decision of the Independent Consumer and Competition Commission to issue public mobile telecommunications licences to Digicel (PNG) Ltd and Green Communications Ltd under s 57 of the Telecommunications Act 1996 is confirmed."

24. Pages 1 – 12 of the decision sets out introductory remarks, the background of the case, preliminary matters, the issues and submissions of the parties. Pages 12 – 15 set out analysis of submissions, the decision and reasons for decision. In the introductory remarks at par 12-13, the panel notes that the proceedings before the National Court "cover much of the same grounds as the applications for review" or "much of the same grounds as litigation that had been on foot for some time" and that Telikom sought an adjournment of the panel hearing generally or at least when judgment of the National Court was delivered. However, the panel decided against changing the timetable for submissions and hearing before the panel because it was required by the Telecommunications Act to make a decision on the application for review within four weeks of being lodged. 

25. The pertinent parts of the reasons for decision relating to the issue before us is found on pages 12-15 at par 48 – 51:-
 
"48. First, however, it appears to me that any decision I make in respect of the issue of the licences will be subject to the decision of the National Court in the proceedings referred to. If I were making a decision after the Court has handed down its decision, my decision could not be inconsistent with the decision of the National Court. However as mentioned above, I have taken the view that the Telecommunications Act requires me to make a decision within four weeks of the relevant application for review being lodged.

49. In the circumstances, I consider that I should confirm the 
Commission’s decision to issue licences. This has the effect of 
 maintaining the status quo, leaving the question to be decided by the Court.

 50. I am of the same view in respect to the question whether I should stay the operation of the Commission to issue of the licences. I will maintain the status quo by not staying the Commission’s decision.

51. In the event that for some reason these matters are not decided by the Court, and in any case because it appears that, if the applications are valid, I should decide the matters they raise, I have reached views on the material before me."

26. The panel then considered the material and determined all the key issues before it except, as submitted by Mr Andersen, the validity of the gazette notice on variation of clause 10 of the Regulatory Contract.

27. All counsel made detailed submission before us on what the above passages mean and which issues were determined. I agree with Mr Cooke and the Court below that the written decision must be read as a whole. Whilst I agree that the panel did make a decision on all the key issues and made a decision on the outcome of Telikom’s application for review, the question still remains whether it made a final and binding decision which disposed off Telikom’s claim before the panel. I accept Mr Webb’s submission. The Appeals Panel did not make a final decision because the continuance or survival of the decision as a binding one which conclusively determined once and for all the key issues before it, was made subject to or conditional upon the future decision of the National Court on the same issues. Those same issues were raised not only in WS 1599 of 2006 commenced by Telikom but also in OS 811 of 2006 commenced by ICCC thus necessitating the consolidation of the two proceedings. The Appeals Panel anticipated a trial and a decision on the same key issues made by the National Court and it was prepared to make a decision whose survival or continuance was dependant on the outcome of the National Court proceedings. I do not consider that a summary termination or dismissal of the proceedings before the National Court in WS 1599 of 2006 was in the reasonable contemplation of the Appeals Panel. I also consider that it was not in the reasonable contemplation of the Appeal Panel that its decision would provide the basis for res judicata which would result in a summary dismissal of Telikom’s proceedings in WS 1599 of 2006. In my view, the interest of justice demands that a judicial determination on the merits of the key issues must proceed in order to settle those issues conclusively. 

28. A close study of the Appeal Panel’s decision on the merits of the key issues shows that it did not make a fully and properly reasoned decision on the merits of the key issues. Rather its decision on the merits of the issues is brief and it has the appearance of a rushed decision. The decision is based largely on assumptions and supposed occurrence or non occurrence of critical events. This is apparent on the face of the record of the decision. For instance, the Appeals Panel stated at par 51 - 56:

 "51. In the event that for some reason these matters are not decided by the Court, and in any case because it appears that, if the applications are valid, I should decide the matters they raise, I have reached views on the material before me…

54. In the light of these findings, I do not need to reach a view about whether the regulatory contract has in fact been amended as set out in the Gazette Notice of 8 March 2007. If it has, the application must fail. If it has not, I consider the application fails in any case. And if it has been amended subject to Telikom’s conditions, then again I consider that the application fails….
 
55. I do not consider that Telikom’s submission that the declaration is in breach of clause 15.3 of the Regulatory contract has merit…

56. As already mentioned, the questions whether the regulatory contract has been amended and the status of any conditions on that amendment are before the National Court. It is conceivable that the Court will hold that the regulatory contract has been amended subject to the conditions that Telikom asserts (so that the conditions are part of the amended regulatory contract) but that nevertheless the issue of the licenses stands. Thus it is arguable that the question still faces the Appeals Panel whether the declaration is inconsistent with the amended regulatory contract containing conditions."

29. In my view the Court below fell into error in concluding that the Appeals Panel made a final and binding decision on the key issues. As to whether the panel’s position in making such decision is consistent with s.182A of the Telecommunications Act is a separate and substantive issue of law, and like other substantive issues relating to the conditions of res judicata, it should be properly pleaded, tried and determined. The same reasons and conclusion apply to the related doctrine of issue estoppel because finality of the decision is also a condition of issue estoppel. 

30. In relation to the two remaining grounds of dismissal, the Court treated the issues raised under O 8 r 27 and O 12 r 40 as abuse of process grounds. The second ground of dismissal is that Telikom abused the court process by commencing three separate proceedings which raised the same issues - two separate proceedings in the National Court and proceedings before the Appeals Panel. The court considered the three proceedings raised the same key question of the validity of the variation of the regulatory contract, any conditions for the variation and fulfilling those conditions and the validity of the issuance of the licenses. The pertinent part of the judgment of the Court appears at page 14 – 15, par 23 – 24 of the judgment:

 "23. The principles on abuse of the process of the Court are also necessary for the important purposes of ensuring that no party goes to Court more than one time over the same issues or relief after having failed or succeeded in an earlier action or at the same time.There must be only one action out of one cause of action. Such an action must raise all of the reliefs open to an affected party. 
Therefore it is improper and inappropriate for a party to divide or piece meal his or her cause of action and the reliefs available to him or her.
 
24. In this case, Telikom issued and maintained concurrently the proceedings under both OS 927 of 2006 and these proceedings (WS 1522 of 2006) seeking the same kinds of reliefs over the same cause of action. Then whilst these proceedings were receiving the Court attention through the various interlocutory applications and mentions, Telikom issued the proceedings before the Appeal Panel under the ICCC Act, which made its decision on 24th May 2007. In my view this is analogous to what happened in William Duma v Yehiura Hriehwazi and Pacific Star Limited Trading as "The National" (14/04/04) N2526……Accordingly, in the particular circumstances of this case, I have no difficulty in coming to the conclusion that Telikom has clearly abused the process of the Court."

31. During argument in the Court below, Telikom’s counsel had some difficulty in justifying the continuance of WS 1599 of 2006 and OS 927 of 2006 (JR) now that the Appeals Panel had made a decision. Telikom’s counsel indicated that WS 1599 of 2006 and OS 927 of 2006 (JR) proceedings had remained inactive pending the proceedings before the Appeals Panel and now that Appeals Panel had handed down its decision, Telikom had intimated to the respondents that it may withdraw both proceedings and proceed with a fresh application for judicial review under O 16 against the decision of the panel. Mr Webb now submits that "by the time the applications to dismiss, WS 1599, OS 927 was defunct" and that at the hearing before the trial judge "Telikom made it clear that it did not intend to proceed with it". He submits at the time the proceedings were instituted, they were warranted by the circumstances and understandable and not an abuse of process. 

32. Mr Cooke submits none of the grounds of appeal challenge the trial judge’s determination on multiple proceedings constituting an abuse of process and arguments cannot be advanced on an appeal ground that is not pleaded. He submits ground 3 (e) simply assumes there were multiple proceedings and challenges the trial judge’s exercise of discretion. The appeal Court should be slow to interfere with the trial judge’s exercise of discretion except where it is shown that some error is shown to have been made by the trial judge. In this case no such error has been shown.

33. In my view, appeal ground 3 (e) is adequately pleaded to challenge the trial judge’s exercise of discretion to dismiss the proceedings on the ground of multiplicity of proceedings.
 
34. In my view, it was open for Telikom to institute various proceedings at different times. It was open for Telikom to institute Court proceedings in WS 1599 of 2006 in direct response to OS 811 of 2006 commenced earlier by ICCC. The provisions of s 182A (1) of Telecommunications Act did not preclude Telikom from instituting Court proceedings seeking declaratory orders. ICCC did not raise any issues then as to abuse of process. For reasons I give below in my consideration of the third ground of dismissal, it was open for Telikom to seek declaratory orders as of right by Writ of Summons. WS 1599 of 2006 filed by Telikom and OS 811/06 filed by ICCC were consolidated for purpose of hearing. No issue of abuse of process arose then. When the proceedings before the Appeals Panel were instituted, no issue of abuse of either the Court process or the appeal panel process was raised before the panel by any party. The Appeals Panel made a decision in which the decision’s survival or validity was dependent or conditional on the subsequent determination of the merits of the same issues by the Court. By the time the Motion to dismiss the proceedings was determined, the Appeals Panel had made its decision which gave rise to new procedural issues relating to the appropriateness of judicial review procedure. One such issue is whether Telikom should challenge the Appeal Panel’s decision by way of instituting fresh judicial review proceedings against the Appeal Panel’s decision and what should become of Telikom’s earlier proceedings in WS 1599 of 2006 and OS 927 of 2006. During argument in the Court below, Telikom’s counsel stated that those earlier proceedings had become defunct and they would be withdrawn when fresh judicial review proceedings were filed. In my view, Telikom’s offer to withdraw those proceedings upon commencement of judicial review proceedings is understandable in view of the application before the Court. I consider Telikom’s position to be no more than proposing available options to enable the Court to determine the merits of the key issues. I do not think Telikom’s position to be a clear concession on abuse of process through multiple proceedings. All these relevant and important matters were not considered by the Court and consequently it fell into error. If they were considered, they would have weighed heavily against exercising discretion in favour of dismissing the proceedings on the ground of multiplicity of proceedings. 

35. The third ground of dismissal was that Telikom abused the Court process by instituting proceedings by Writ of Summons and not by judicial review under O 16 of the National Court Rules. The Court correctly outlined the relevant principles on the appropriateness of judicial review proceedings under O 16 as set out by the Supreme Court in Michael Gene v Hamidian-Rad [1999] PNGLR 444. In that case this Court stated that where a person is seeking orders in the nature of prerogative writ against a decision of a public body, O 16 provides the exclusive procedure. The Court noted that the Supreme Court in the Michael Gene case "did not follow the much earlier decision" of the Supreme Court in NEC & Lucas v Public Employees Association of PNG [1993] PNGLR 264. In that case, this Court held that where a person seeks declaratory orders against a decision of a public administrative body, it is permissible to commence proceedings by Writ of Summons. The Court applied the principles in the Michael Gene case and found that Telikom abused the Court process by commencing Writ of Summons proceedings when the only appropriate procedure was by way of judicial review. 

36. Mr Webb submits Telikom sought declaratory orders and injunctions in WS 1599 of 2006 and not orders in the nature of prerogative writs, and therefore the proceedings were permitted under the principles laid down in the NEC & Lucas case. He submits in the Michael Gene case, the plaintiff sought orders in the nature of prerogative writs by Writ of Summons and whereas in the NEC & Lucas case, the plaintiff sought declaratory relief by judicial review proceedings. He submits there is no conflict in the two decisions of this Court. Under both decisions, it is permissible for a person affected by a decision of a public administrative body to seek declaratory relief by Writ of Summons under the principles laid down in the NEC & Lucas case. In the present case, the plaintiff by Writ of Summons sought declaratory relief and injunctions only against ICCC, a public administrative body. Telikom did not seek orders in the nature of prerogative writs. Therefore WS 1599 of 2006 was competent. 

37. Mr Cooke concedes that the Court overstated the analysis of the decision in the Michael Gene case when the Court concluded that the Supreme Court did not follow the decision in the NEC & Lucas case. However he submits Telikom sought declarations in WS 1599 of 2006 which in effect it could have sought and did seek in OS 927 of 2006. Therefore there were multiple proceedings on foot claiming the same relief and this was an abuse of process. Mr Andersen adopts Mr Cooke’s submission on this point.

38. In my view, at the time the proceedings in WS 1599 of 2006 were instituted, due to the circumstances prevailing at that time, it was open to Telikom to seek declaratory orders and injunctions by Writ of Summons. Its claim arose out of the regulatory contract and actions taken by ICCC pursuant to an alleged variation of clause 10. It was not a case of ICCC exercising decision-making powers of the kind conferred by statute on administrative appeals or review tribunals, which are to be more appropriately challenged by orders in the nature of prerogative writs. In my opinion, subject to the express provisions of statute which precludes resort to Court action first, challenges to actions taken by a public authority under a public contract of a commercial or business nature such as the regulatory contract in this case, it is open for an aggrieved person to commence proceedings by Writ of Summons seeking declaratory relief and injunction. I agree with Mr Webb that the trial judge misapprehended the Supreme Court’s decision in Michael Gene’s case as not following its decision in NEC & Lucas case. This misapprehension led to the erroneous finding that the only appropriate mode of instituting proceedings open to Telikom in the circumstances was by way of judicial review. I am of the view that the Court erred in dismissing the claim on that basis.

39. The dismissal of proceedings on procedural grounds such as those in this case involves an exercise of judicial discretion. I accept Mr Cooke’s submission based on House v King (1936) 55 CLR 499 at 504 which is adopted and applied in other cases in this jurisdiction, that the trial judges decision should not be set aside readily except where an error has been shown to be made in the exercise of the discretion. Whilst this principle applies to the Court’s exercise of discretion in each ground taken separately, I consider it is also important that the dismissal of this one proceeding on three grounds constituting "abuse of process" should be considered together in the context of the whole case. Res judicata appears to be the main ground of dismissal of the proceedings in WS 1599 of 2006. I have concluded that one of the conditions for the application of the doctrine was not fulfilled in that the Appeals Panel did not make a final decision on all the key issues and left it to the Court to make that binding decision. As a result of the decision, Telikom was denied the opportunity to litigate the merits of the key issues before the Court. As the key issues raised in the proceedings commenced by Telikom in WS 1599 of 2006 and proceedings commenced by ICCC in OS 811 of 2006 were consolidated for the purpose of hearing, those issues should be properly tried and determined. Those issues relate to the interpretation and application of the relevant provisions of the ICCC Act and Telecommunications Act which relate to regulation of the mobile telephone service network in this country through regulatory contracts. These are public law issues and they are of public importance as they affect the modern telecommunication industry with the recent introduction of mobile communications in PNG. Given the nature of the decision given by the Appeals Panel on the key issues and given the restrictive nature of judicial review procedure, any future judicial review application by Telikom against the Appeal Panel’s decision may not achieve a full determination of the key issues. As intended by the Appeals Panel, a decision by the National Court on the key issues should settle the key issues conclusively.

 40. A final point needs to be made and that is the original date fixed in the regulatory contract for Telikom’s monopoly to end which is 17 October 2007, lapsed before this appeal was heard. Therefore the purpose of the proceedings in WS 1599 of 2006 may have been lost. However this point was not a relevant factor considered in the exercise of discretion by the Court below and it is not before us. In any event, notwithstanding this turn of events, in the interest of justice, the merits of the key issues still remain to be decided by the Court. 

41. For the foregoing reasons, I am of the view that the Court below erred in the exercise of its discretion in several respects as set out above. In the alternative, the end result of the decision to me is so unreasonable and plainly unjust that even if no specific error were identified, an error will have to be inferred in the exercise of the discretion on the case as a whole and it must be set aside. I simply restate what the Supreme Court said in 

Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788, at p. 8:

"The appellate Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of the discretion. Alternatively, it may be set aside if where there is no identifiable error, but the resulting judgment or order is "unreasonable or plainly unjust and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1965) 94 CLR 621 at p. 627, which was adopted by Clarkson J in Breckwoldt & Co. (N.G.) Pty Ltd v Groyke [1974] PNGLR 106 at p. 112-113:

 "The decision of the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J in Australia Coal and Shale Employees’ Union v The Commonwealth …the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgments is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may  exist where there has been an error which consists in acting on wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

42. For these reasons, I would allow the appeal, quash the decision of the National Court, and re-instate the proceedings in WS 1599 of 2006. I would award costs of the appeal to the appellant. 
__________________________________

43. KIRRIWOM AND CANNINGS JJ: This case is about regulation of the mobile telephone industry in Papua New Guinea. It is an appeal by Telikom PNG Ltd against the judgment of Kandakasi J in the National Court in which his Honour dismissed proceedings brought by Telikom against the Independent Consumer and Competition Commission and Digicel (PNG) Ltd. (Telikom PNG Ltd v ICCC and Digicel (PNG) Ltd, WS No 1599 of 2006, 5 July 2007).

44. Telikom is owned and controlled by the National Government. The ICCC is a governmental body that, together with another governmental body, PANGTEL, regulates the mobile telephone industry. Digicel is a private corporation that has been granted a licence by the ICCC to operate in the industry.

45. Telikom was aggrieved by the ICCC’s decision to issue, on 27 March 2007, a public mobile licence to Digicel and commenced proceedings in the National Court, WS No 1599 of 2006. Telikom argued that under the regulatory contract between it and the ICCC, Digicel could not be issued a public mobile licence before 17 October 2007. Telikom sought a declaration that the ICCC could not issue a licence to anyone other than it before that date and that there had been no agreement to vary the regulatory contract. Telikom also sought an injunction to restrain the ICCC from issuing any licences before 17 October 2007.

46. That critical date has now passed and Digicel has been operating for some months but Telikom wants to pursue this appeal as, if they succeed, they want to claim damages against the ICCC and Digicel.

47. Kandakasi J dismissed the proceedings for three reasons.

48. First, Telikom abused the processes of the court as they had engaged in an unjustified multiplicity of proceedings. They commenced two other legal proceedings, arguing the same key issue they were raising in WS No 1599 of 2006. One was a National Court application for leave to seek judicial review of the ICCC’s decision to issue licences to Digicel and another company, Green Communications. The other was an application to the Appeals Panel set up under the Telecommunications Act to review the ICCC’s decision to issue the licences.

49. Secondly, Telikom failed to follow the procedure prescribed by the National Court Rules for seeking judicial review of a public authority such as the ICCC. They should have applied by originating summons for leave to seek judicial review under Order 16 of the Rules, rather than seeking declarations and injunctions via a writ of summons under Order 4. 

50. Thirdly, res judicata. The Appeals Panel determined the key issues raised by WS No 1599 of 2006: whether Telikom consented to variation of the regulatory contract and whether the conditions on which it consented were complied with. Telikom’s application to the Panel was unsuccessful, the ICCC’s decisions were confirmed, so the res judicata doctrine (the thing has already been decided) prevented Telikom arguing the same issues in the National Court.

51. Telikom maintains that his Honour erred in his treatment of each of those issues. The issues we have to decide therefore are:

1	Was there an abuse of process by Telikom?

2	Did Telikom fail to follow the correct procedure?

3	Did res judicata apply?

52. More correctly, we must determine whether the primary Judge erred in answering each of those issues ‘yes’ and whether any of Telikom’s six grounds of appeal, which challenge the correctness of his Honour’s treatment of the three major issues, should be upheld.

53. Before examining each issue we will summarise the relevant law and set out the facts.

THE LAW

54. Telikom is licensed under the Telecommunications Act 1996 to provide public mobile telecommunications services as a "mobile carrier".

55. The ICCC was established by the ICCC Act 2002 and when that law was made the Parliament made significant amendments to the Telecommunications Act. The telecommunications industry was made a regulated industry (ICCC Act, Section 2); Telecommunications Act, Section 19A). Telikom was made a "regulated entity" and some of its services including mobile phone services were made "regulated services". These Acts provide for the making of "regulatory contracts" between the ICCC and regulated entities such as Telikom, which take effect as agreements between the parties and can only be varied by their agreement (ICCC Act, Section 37).

56. The power to issue, suspend and revoke licences for, amongst other things, supply of public mobile telecommunications services, has been given to the ICCC, which also sets the conditions to which a licence is subject (Telecommunications Act, Part VI, Sections 54-66).

57. Licensing decisions made by the ICCC under Part VI of the Telecommunications Act can be reviewed by an Appeals Panel, under Section 182A.

THE FACTS

2002

58. The regulatory contract between the ICCC and Telikom was made on 16 July 2002. It has 24 clauses and 10 schedules and is about 100 pages long. Two of the clauses are relevant to this case. Clause 10 deals with Telikom’s monopoly and clause 11 with amendment of the regulatory contract.

59. Clause 10.1(a)(i) states:

The Commission agrees not to issue any licence under the Telecommunications Act or any other applicable legislation which permits any person other than Telikom … to operate as a mobile carrier before [17 October 2007].

60. Clause 11.1(a) states:

Subject to clause 11.1(b) [public notice and consideration of submissions on the proposed variation] this Contract may be varied from time to time by written agreement between the Commission and Telikom but any such variation must not be inconsistent with the Regulatory Principles or the requirements of the Independent Consumer and Competition Commission Act 2002.

2005

61. On 15 November 2005, the National Executive Council made a policy decision that the end of Telikom’s monopoly should be brought forward from 17 October 2007 to 31 March 2006. 

2006

62. It was the ICCC’s task to implement that policy so on 11 January 2006 it wrote to Telikom proposing a variation of clause 10.1(a)(i) of the regulatory contract, substituting 31 March 2006 for 17 October 2007.

63. Telikom responded on 20 February 2006, saying that it "consents to the proposal to bring forward the cessation of its monopoly period" subject to three conditions:

•	Telikom be supplied in advance with full terms, conditions and regulations to be applied to the proposed competitors;
•	Telikom to be subject to fair and reasonable competition;
•	Telikom and its competitors to be required to meet similar technical standards and safety requirements.

64. The ICCC responded on 24 February 2006 and confirmed that Telikom’s proposed conditions would be met.

65. The ICCC proceeded in March 2006 to issue tenders for mobile phone licences.

66. In August 2006, Telikom wrote to the ICCC denying that it had agreed to variation of the regulatory contract.

67. On 1 September 2006, the ICCC publicly announced that it had decided to issue two new public mobile licences, one to Digicel and the other to Green Communications.

68. Soon afterwards, Telikom wrote to the ICCC again denying that it had agreed to variation of the regulatory contract and reserving its right to commence legal proceedings.

69. On 31 October 2006, Telikom filed WS 1599 of 2006 in the National Court, the proceedings from which this appeal emanates. Telikom was the plaintiff and the ICCC the defendant. Digicel was later joined as second defendant. Telikom sought four remedies:

•	a declaration that the ICCC may not issue a public mobile licence to anyone other than Telikom before 17 October 2007;

•	a declaration that Telikom has not agreed to any variations of the terms of the regulatory contract;

•	an injunction to restrain the ICCC from issuing any licence to anyone other than Telikom before 17 October 2007;

•	an injunction to restrain publication of variations of the regulatory contract.

70. The grounds on which relief was sought were:

•	under the regulatory contract no new public mobile licence could be issued before 17 October 2007;

•	Telikom had not agreed to any variation of the regulatory contract;

•	the ICCC had evinced an intention to grant new public mobile licences before 17 October 2007.

71. On 6 and 7 November 2006, the ICCC issued public notices about the proposed variations to the regulatory contract and invited submissions.

72. On 22 December 2006, Telikom filed OS 927 of 2006 in the National Court, seeking judicial review of the ICCC’s decision of 1 September 2006 to grant public mobile licences to Digicel and Green Communications. Telikom was the plaintiff and the ICCC the defendant. Telikom sought two remedies:

•	an order quashing that decision;

•	an order prohibiting the ICCC from issuing any new public mobile licences.

73. The grounds on which relief was sought were:

•	under the regulatory contract no new public mobile licence could be issued before 17 October 2007;

•	the ICCC acted ultra vires and failed to take into account relevant considerations (eg the adverse effect of a non-interconnecting network on Telikom’s customers, the financial and operational implications to Telikom of two new mobile licences);

•	the ICCC took into account irrelevant and erroneous considerations (eg that it was obliged to conduct a closed tender, that Telikom was supportive of the tender process);

•	the ICCC made its decision in breach of the rules of natural justice.

2007

74. On 8 March 2007, the ICCC published in the National Gazette a notice of variation of the regulatory contract.

75. On 27 March 2007, the ICCC issued a public mobile licence to Digicel. The licence allowed Digicel to immediately commence installation of facilities and to commence operations on 17 October 2007 or on any other date after 30 April 2007 agreed to between the ICCC and Digicel.

76. On 26 April 2007, Telikom applied to the Appeals Panel under Section 182A of the Telecommunications Act for review of the ICCC’s decision to issue the licence to Digicel. Telikom sought three decisions from the Panel:

•	that the ICCC’s decision to issue the licence was void and of no effect; and/or

•	that the ICCC’s decision be quashed; and/or

•	that the matter be remitted to the ICCC for reconsideration having regard to the findings of the Panel.

77. The main ground of challenge was that the ICCC’s decision to issue the licence to Digicel was inconsistent with the regulatory contract, which prohibited the ICCC from issuing a licence until 17 October 2007.

78. On 21 May 2007, the Appeals Panel, constituted by Mr R F Shogren, heard the review in Port Moresby. Telikom, the ICCC and Digicel were all legally represented.

79. Mr Shogren published his decision on 24 May 2007. He decided, under Section 182A(5) of the Telecommunications Act, to "confirm" the ICCC’s decision to issue the licence to Digicel. Noting that there was a dispute over whether the regulatory contract had been amended and that the National Court proceedings WS 1599/2006 covered much the same ground as the review before the Panel, Mr Shogren concluded that he did not actually have to reach a view about whether the regulatory contract had been amended.

80. He held that, on the one hand, if the regulatory contract had not been amended, the granting of a licence prior to 17 October 2007 that did not permit operations until 17 October 2007 "is not inconsistent with the unamended regulatory contract". That is, granting the licence to Digicel in March 2007 was permitted by the 2002 version of the regulatory contract, which intended that a licence could be issued before 17 October 2007. It would allow a new operator to carry out preparatory work before that date.

81. On the other hand, if the regulatory contract had been amended by bringing forward the end of Telikom’s monopoly to 31 March 2006, the grant of the licence to Digicel was in order. Mr Shogren considered that the three conditions claimed by Telikom (Telikom being supplied in advance with full terms; conditions and regulations to be applied to competitors; Telikom being subject to fair and reasonable competition; and competitors being subject to same technical and safety requirements) had been met.

82. On 21 June 2007, Kandakasi J heard motions brought by the ICCC and Digicel to dismiss WS 1599 of 2006. Those motions were the subject of his Honour’s written judgment of 5 July 2007, which is the subject of this appeal. His Honour granted the orders sought in the motions and dismissed the proceedings.

83. The appeal was filed on 10 July 2007

GROUNDS OF APPEAL

84. Telikom has put forward six grounds in its notice of appeal, which unfortunately are not set out in the same order as the issues were addressed in the primary Judge’s judgment.

85. Ground (a) deals with the res judicata issue – the third reason the primary Judge gave for dismissing the proceedings in WS 1599/2006. His Honour is said to have erred by finding that the Appeals Panel determined the merits of the issue whether Telikom and the ICCC agreed to variation of the regulatory contract.

86. Grounds (b), (c), (d) and (e) relate to the primary Judge’s finding that WS 1599/2006 was an abuse of process – the first reason his Honour gave for dismissing the proceedings in WS 1599/2006. His Honour is said to have erred by concluding that there was an unjustified multiplicity of proceedings. It is claimed that the judicial review proceedings OS 927/2006 involved a different subject matter (ground (b)) and the Appeals Panel proceedings were explicable and justifiable (ground (c)). Also, his Honour failed to recognise that the Appeals Panel expressly chose not to determine the issue of whether Telikom had agreed to a variation of the regulatory contract (ground (d)). If his Honour were correct in finding that there was an abuse of process, it is claimed that he nevertheless erred by ordering that WS 1599/2006 be dismissed as those proceedings were well advanced and raised the fundamental issue that still had to be decided: whether there had been agreement to vary the regulatory contract (ground (e)).

87. Ground (f) deals with the finding that Telikom failed to follow the procedure prescribed by the National Court Rules for seeking judicial review of a public authority such as the ICCC – the second reason the primary Judge gave for dismissing the proceedings in WS 1599/2006. His Honour is said to have erred by finding that the proceedings should have been commenced by originating summons under Order 16 of the National Court Rules.

88. We consider that it is better to deal with the issues raised by the grounds of appeal in the same order that they were dealt with by the primary Judge. We will address them in this order:

•	(b), (c), (d) and (e), which raise the issue of whether there was an abuse of process by Telikom;

•	(f), which deals with the issue of whether Telikom failed to follow the correct procedure; and

•	(a), which is about res judicata.

ISSUE NO 1: WAS THERE AN ABUSE OF PROCESS BY TELIKOM?

89. Telikom argued that the primary Judge erred by concluding that there was an abuse of process, due to there being an unjustified multiplicity of proceedings, in that his Honour:

•	should have found that the judicial review proceedings OS 927/2006 involved a different subject matter to WS 1599/2006 (ground of appeal (b));

•	should have found that Telikom’s application to the Appeals Panel was explicable and justified, and not an abuse of process (ground (c));

•	should have found that the Appeals Panel expressly chose not to determine the issue of whether Telikom had agreed to a variation of the regulatory contract (ground (d)).

90. Telikom further argues that if the primary Judge were correct in concluding that there was an abuse of process, he erred in the exercise of his discretion to dismiss the proceedings by failing to take into account that WS 1599/2006 was well advanced and raised the fundamental issue that still had to be decided: whether there had been agreement to vary the regulatory contract (ground (e)). 

91. Telikom thus raises two distinct arguments. First, that the primary Judge erred by concluding that there was an abuse of process (grounds (b), (c) and (d)). Secondly, if that argument is rejected, that his Honour erred by jumping to the conclusion that the proceedings should be dismissed (ground (e)). 

Should the primary Judge have found that the judicial review proceedings OS 927/2006 involved a different subject matter to WS 1599/2006? (ground (b))

92. No. We consider that his Honour was correct in regarding the key issues in each of the proceedings as the same. They were: whether the regulatory contract prohibited the ICCC from issuing a public mobile licence to Digicel before 17 October 2007 and whether Telikom had agreed to variation of the regulatory contract. 

93. OS 927/2006 was an application for leave to seek judicial review of the ICCC’s decision to issue the licence to Digicel. It was concerned with the tender process conducted by the ICCC whereas WS 1599/2006 could be regarded, as contended by Mr Webb for Telikom, as an action for breach of contract (ie breach by the ICCC of the regulatory contract between it and Telikom). Whatever label is put on WS 1599/2006, however, we consider that the key issues, the subject matter and the grievances being agitated by Telikom, were the same as in OS 927/2006. The remedies being sought were also the same.

94. In WS 1599/2006, Telikom wanted an injunction to restrain the ICCC from issuing a public mobile licence to Digicel before 17 October 2007. In OS 927/2006, they wanted an order prohibiting the ICCC from issuing any new public mobile licences. They were seeking declarations and other remedies in both proceedings. Though there were differences in the wording and the form of the remedies sought, the substance of the relief being sought was the same. The primary Judge correctly concluded by examining the true nature of each proceeding that OS 927/2006 was a duplication of WS 1599/2006 and that Telikom was engaging in an unjustified multiplicity of proceedings.

95. Mr Webb submitted that the mere existence of two or more proceedings in which there is an overlap of issues does not give rise to an abuse of process. Some improper, collateral purpose for bringing multiple proceedings must be shown, eg that the plaintiff has started multiple proceedings simply to harass a defendant. We agree, to some extent, with that submission. There might be a good reason in a particular case for more than one set of proceedings to be commenced over what appears to be the same subject matter. But that reason would need to be very clearly apparent. 

96. We agree with the primary Judge that a multiplicity of proceedings should be avoided as it means a multiplicity of costs to the parties and it uses up the courts’ precious time. In support of that proposition his Honour correctly referred to the decisions of Kapi DCJ (as he then was), in NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135 and Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425. Mr Webb correctly pointed out that they were not actually abuse of process cases. Nevertheless, they vividly illustrate the principle that a multiplicity of proceedings should be avoided. In safeguarding against abuse of its processes the National Court should discourage plaintiffs from bringing their grievances to the court in a piecemeal way.

97. Mr Webb emphasised that OS 927/2006 was not pursued by Telikom. The originating process was not even served on the ICCC. By February 2007, the application for leave to seek review had been abandoned as it had become a pointless case. By the time the motion for dismissal of WS 1599/2006 was heard in June 2007, OS 927/2006 was defunct. Telikom could not therefore be said to be harassing the ICCC or Digicel. Telikom was not having more than one bite at the cherry, a phrase often used to describe litigants who engage in a multiplicity of proceedings when they do not achieve the desired outcome in their first case. Mr Webb submitted that this case could be distinguished from abuse of process cases such as Anderson Agiru v Electoral Commission and The State (2002) SC687, relied on by the primary Judge. 

98. In Agiru, the plaintiff unsuccessfully sought judicial review of the decision of a leadership tribunal that resulted in his dismissal from office as a Member of Parliament. He then made an application to the Supreme Court, claiming that his human rights had been breached by the leadership tribunal. The Supreme Court ruled that the human rights application was an abuse of process, stating:

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.

99. We agree with Mr Webb that the facts in the present case are different to those in Agiru. In Agiru the other court proceedings had reached finality, whereas in the present case the other court proceedings (OS 927/2006) had not – they had not even progressed past the filing stage. However, we cannot accept that OS 927/2006 had been abandoned or that in June 2007 it was defunct. OS 927/2006 was filed in December 2006 and by June 2007 had not been discontinued. It was still alive.

100. It is important to appreciate, as the Supreme Court highlighted in National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264, that an abuse of process can exist in many different ways:

An abuse of the process of the court may arise where in an application for a remedy under Order 16 Rule 1(1) a party can also obtain a declaration or injunction but does not do so and subsequently applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under Order 16 as well as constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis. [Emphasis added.]

101. We do not consider that it is necessary for a defendant to be harassed or for one of a number of proceedings to reach finality for a multiplicity of proceedings to give rise to an abuse. It is the very existence of two or more proceedings involving the same subject matter that is noxious and gives rise to the presumption, rebuttable, of abuse of process. 

102. Once the jurisdiction of the National Court is invoked by filing a proceeding, it is incumbent on a plaintiff to prosecute it with all due dispatch; and not to commence parallel proceedings over the same subject matter. Parallel proceedings give rise to confusion and inconvenience for the defendants and the court, even where, as in the present case, one of the originating processes is not served on the defendant. Very good reasons for commencement of parallel proceedings must be given. None have been displayed by Telikom. We therefore agree with the primary Judge that the continuing existence of OS 927/2006, covering the same subject matter as WS 1599/2006, gave rise to an abuse of process.

103. Putting to one side the question of whether WS 1599/2006 was an improper originating process (which is the subject of the second major issue raised by the appeal) what Telikom should have done, having filed WS 1599/2006, was:

•	not to file OS 927/2006; or

•	file OS 927/2006, contemporaneously discontinue WS 1599/2006, then prosecute OS 927/2006 with all due dispatch. 

104. Telikom did neither of those things. Having filed WS 1599/2006, they filed separate proceedings, OS 927/2006, in the same court, seeking the same relief and raising the same issues as in WS 1599/2006. The primary Judge made no error in reaching the conclusion that this was an abuse of process. 

Should the primary Judge have found that Telikom’s application to the Appeals Panel was explicable and justified? (ground (c))

105. No. We consider that his Honour was correct in regarding the continuation of WS 1599/2006 as an abuse of process in light of the same key issues being brought before and determined by the Appeals Panel. 

106. There was nothing intrinsically wrong with the application to the Appeals Panel. It was a statutory procedure available to be invoked by Telikom under Section 182A(1)(d) of the Telecommunications Act. The primary Judge did not say that the application to the Appeals Panel was inexplicable or unjustified. However, having applied to the Appeals Panel, Telikom should have discontinued WS 1599/2006. If they were aggrieved by the Appeal Panel’s decision, as clearly they were, they could have, as pointed out by the primary Judge, sought judicial review of the decision. They did not do that, however. They persisted with WS 1599/2006, while at the same time leaving OS 927/2006 on foot, which resulted in what we consider to be the primary Judge’s inevitable conclusion that they were engaging in an unjustified multiplicity of proceedings.

107. Mr Webb submitted that Telikom’s right to apply to the Appeals Panel for relief did not exist until the licence was issued to Digicel on 27 March 2007 and that they acted promptly in exercising that right. We are not so sure about that. Telikom could have considered making an application to the Appeals Panel in September 2006, when the ICCC publicly announced that it had decided to issue a licence to Digicel to allow it to operate from the end of March 2007. Section 182A(1)(d) (review of decisions by the Commission) states:

An application may be made to the Appeals Panel … by a carrier to which a regulatory contract applies of a decision of the Commission to issue a licence under Part VI that the carrier believes is inconsistent with the requirements of Section 55 [which says that a regulatory contract may specify limitations on when the ICCC may issue a public mobile licence to another carrier]. [Emphasis added.]

108. A decision to issue a licence is one thing. The issuance of the licence is another. In this case the decision to issue the licence was made in or about September 2006. The licence was not actually issued until March 2007. Telikom believed that the ICCC’s September 2006 decision to issue the licence before 17 October 2007 was in breach of the regulatory contract and therefore in breach of the requirements of Section 55. They could have made their application to the Appeals Panel in September 2006. Instead they slept on their rights, filed WS 1599/2006 in November 2006, filed OS 927/2006 in December 2006, made the application to the Appeals Panel in April 2007, which was determined in May 2007, failed to seek judicial review of the Appeals Panel’s decision; and still pursued WS 1599/2006. 

109. The primary Judge’s conclusion that Telikom was guilty of an abuse of process, having regard to the Appeal Panel proceedings, was clearly correct. 

Should the primary Judge have found that the Appeals Panel expressly chose not to determine the issue of whether Telikom had agreed to a variation of the regulatory contract? (ground (d))

110. No. We agree with the primary Judge’s finding that the Appeals Panel determined the issue of whether Telikom agreed to variation of the regulatory contract. The Appeals Panel concluded that it did not make any difference whether Telikom agreed or not. On the one hand, if Telikom had not agreed – ie if the regulatory contract had not been amended – the granting of the licence to Digicel in March 2007 was permitted by the 2002 version of the regulatory contract. On the other hand, if Telikom had agreed – ie if the regulatory contract had been amended – the grant of the licence to Telikom was in order as the three conditions to which Telikom’s agreement had been subject, had been complied with.

111. We conclude that the primary Judge made no error in finding that the Appeals Panel did determine the key issues that were the subject of WS 1599/2006 and therefore it was an abuse of process for Telikom to continue to prosecute WS 1599/2006. Further reasons in support of this conclusion are given in our discussion of major issue No 3 – the res judicata issue – later in this judgment. 

Did the primary Judge err in the exercise of his discretion whether to dismiss the proceedings? (ground (e))

112. No. Having concluded that Telikom had abused the processes of the court by commencing two other legal proceedings (OS 927/2006 and the Appeals Panel application) concerning the same issues as in WS 1599/2006 and running them at the same time, it was a short and rational step for the primary Judge to conclude that WS 1599/2006 should be dismissed. 

113. We agree with Mr Webb who submitted that the question of whether proceedings should be dismissed for abuse of process is under Order 12, Rule 40 (frivolity etc) of the National Court Rules a matter of discretion. Conceivably the court could find that a plaintiff was guilty of an abuse but not dismiss the proceedings. But such a scenario would be rare and no case was drawn to our attention where this had occurred.

114. The specific point raised by ground of appeal (e) was:

… if his Honour were correct in finding that there was an abuse of process by the existence of more than one set of proceedings, then he erred in the exercise of his discretion in ordering that the proceedings WS 1599/2006 be dismissed when those proceedings were well advanced and raised the fundamental issue to be decided between the appellant [Telikom] and the first respondent [ICCC], namely whether there had been agreement to vary clause 10.1(a) of the regulatory contract. 

115. The argument appears to be that the primary Judge should not have dismissed WS 1599/2006 as the proceedings were well advanced and raised the fundamental issue of whether Telikom and the ICCC agreed to vary the regulatory contract. We query whether it can properly be said that WS 1599/2006 was well advanced as the discovery process was not complete. Be that as it may, the fact that proceedings are well advanced is not a sufficient reason not to dismiss them for abuse of process. As for WS 1599/2006 raising a fundamental issue, the primary Judge addressed that issue in great detail. It was one of the reasons that his Honour concluded that WS 1599/2006 should be dismissed: the fundamental issue had already been decided elsewhere, in the Appeals Panel.

116. There was one other point raised by Telikom about the exercise of the primary Judge’s discretion to dismiss the proceedings for abuse of process. It was argued that his Honour erred by saying that, even though he was dismissing the proceedings, it was open to Telikom to seek judicial review of the Appeals Panel’s decision. The error was that his Honour was creating an issue estoppel against Telikom, preventing them from seeking review of the Appeals Panel’s decision. We have carefully considered this submission but find it unfathomable and dismiss it as having no merit.

117. We conclude that the primary Judge made no error in the exercise of his discretion to dismiss the proceedings. 

Conclusion as to issue No 1

118. The primary Judge was correct in concluding that there was an abuse of process by Telikom and that the National Court proceedings WS 1599/2006 should for that reason be dismissed. 

119. We therefore dismiss grounds (b), (c), (d) and (e) of the appeal.

ISSUE NO 2: DID TELIKOM FAIL TO FOLLOW THE CORRECT PROCEDURE?

120. Telikom argued that the primary Judge erred by finding that they failed to follow the procedure prescribed by the National Court Rules for seeking judicial review of a public authority such as the ICCC. The argument is raised by ground of appeal (f). 

121. His Honour held that, as Telikom was seeking an order in the nature of a prerogative writ (eg an order in the nature of mandamus, prohibition, certiorari or quo warranto) against a public authority (the ICCC), the only procedure that could properly be used was to file an originating summons and seek leave to apply for judicial review under Order 16 of the National Court Rules. By filing a writ of summons (WS 1599/2006) under Order 4, Telikom used a wrong originating process, avoided the leave requirements of Order 16 and, again, abused the processes of the court. His Honour relied on the decision of the Supreme Court in Gene v Hamidian-Rad [1999] PNGLR 444, in which, he said, the Court had not followed its earlier decision in National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264. 

122. To determine this ground of appeal we have to look carefully at Order 16, Rule 1 of the National Court Rules, consider the Supreme Court decisions in Hamidian-Rad and Lucas and examine the nature of the relief Telikom was seeking in WS 1599/2006.

National Court Rules 

123. Order 16, Rule 1 (cases appropriate for application for judicial review) states:

(1)	An application for an order in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review in accordance with this Order. [Emphasis added.]

(2)	An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that … it would be just and convenient for the declaration or injunction to be granted on an application for judicial review. [Emphasis added.]

124. We agree with Mr Webb, for Telikom, who submitted that, the literal meaning of Rule 1 is that if a plaintiff wants to apply for orders in the nature of any of the four prerogative writs specified by Rule 1(1), the only proper procedure is to file an originating summons and seek leave for judicial review under Order 16. Further, that the wording of Rule 1(2) – in particular, the use of the word "may" – suggests that if a plaintiff wants to apply for a declaration or injunction only, the Order 16 procedure is optional.

Lucas’s case

125. That was the interpretation of Rule 1 arrived at by the Supreme Court in Lucas’s case. It was held that the filing of an originating summons under Order 4 of the National Court Rules was a proper procedure as the only relief sought by the plaintiff (the PEA) was a declaration that the appointment of Mr Lucas as Secretary for Justice was illegal and null and void. No orders of the sort referred to in Rule 1(1) were applied for so the plaintiff had a choice of procedures: Order 4 or Order 16. They chose Order 4 and the Supreme Court held there was nothing wrong with that.

Hamidian-Rad’s case

126. Did the Supreme Court depart from that approach in Hamidian-Rad? With respect to the learned primary Judge, we do not think so. In Hamidian-Rad, the Supreme Court held that when the plaintiff, Mr Hamidian-Rad, went to the National Court, seeking to nullify the decision of the Commissioner General of Internal Revenue to issue a direction to Air Niugini under the Income Tax Act not to carry him on any flight leaving PNG, he was applying for an order in the nature of certiorari (an order quashing the decision). He should have approached the National Court under Order 16 by filing an originating summons seeking leave to apply for judicial review. He did not do that. He avoided the leave requirements by filing an originating summons under Order 4. The Commissioner General had objected to the procedure in the National Court but the objection was rejected by the primary Judge and an order was made, nullifying the Commissioner General’s decision and allowing Mr Hamidian-Rad to leave the country. On appeal, the Supreme Court held that the primary Judge erred by rejecting the objection. 

127. We consider that the Court actually followed its decision in Lucas and reached a different decision because of different facts. In Lucas, the plaintiff was only seeking a declaration, so he had a choice and used a proper procedure. In Hamidian-Rad, the plaintiff was seeking an order in the nature of certiorari, so he was confined to Order 16 but used an improper procedure. 

128. We do not consider that it is correct to say that whenever a person wishes to challenge the decision of a governmental body or public authority, the challenge must be made by using Order 16. It is a matter of considering the relief being sought and applying Order 16, Rule 1, to see whether Order 16 is mandatory (Rule 1(1)) or optional (Rule 1(2)). 

129. In the present case, Telikom sought the following relief in the writ of summons:

1	A declaration that by virtue of the regulatory contract, the ICCC Act and the Telecommunications Act, the defendant [the ICCC] may not issue or purport to issue any licence under the Telecommunications Act or any other legislation to any person other than the plaintiff before 17 October 2007.

2	A declaration that the plaintiff has not agreed within the terms of clause 11.1(a) of the regulatory contract to any variations to the said regulatory contract.

3	An order by way of injunction that the defendant by its officers, employees or agents or howsoever be restrained from issuing or purporting to issue any licence under the Telecommunications Act or any other legislation to any person other than the plaintiff before 17 October 2007.

4	An order by way of injunction that the defendant by its officers, employees or agents or howsoever be restrained from publishing, giving notice of or making available to the public, any so-called proposed variations to the regulatory contract, and from doing any act purporting to give effect to or recognition to any alleged variations or proposed variations to the regulatory contract. [Emphasis added.]

130. On the face of it, Telikom was seeking only declarations and injunctions, not orders in the nature of prerogative writs, so Order 16, Rule 1(2) applies and they had an option as to the mode of commencement of the proceedings.

131. Mr Cooke, for Digicel, submitted that we should look at the substance as well as the wording of the orders sought. He submitted that, in effect, Telikom was seeking, by asking for declarations, an order in the nature of certiorari to quash the ICCC’s decision to grant a licence to Digicel; and, by asking for injunctions, an order in the nature of prohibition to prohibit the ICCC from implementing its decision. There is some force in the submission. We agree that the court should look at the substance as well as the wording of the relief being sought. That is what happened in Hamidian-Rad’s case. We have done that here and we consider that the substance of what Telikom was seeking was confined to declarations and injunctions. Therefore Order 16, Rule 1(1) did not apply and they had a choice as to mode of commencement of the proceedings.

Conclusion as to issue No 2

132. We conclude that Telikom did not use the wrong procedure and, with respect, that the learned primary Judge erred in law in concluding that they were obliged to use Order 16 and in dismissing the proceedings on that basis. 

133. We therefore uphold ground (f) of the appeal. 

ISSUE NO 3: DID RES JUDICATA APPLY?

134. Telikom says No and argues that the primary Judge erred by saying Yes. His Honour held that the Appeals Panel had decided the key issues raised by WS 1599/2006 so the res judicata doctrine prevented Telikom arguing them again, in the National Court. 

135. The res judicata argument is raised by ground of appeal (a), which states:

His Honour erred in finding that the Appeals Panel constituted under Section 182A of the Telecommunications Act 1996 had determined on the merits the issue whether the appellant [Telikom] and the first respondent [ICCC] had agreed pursuant to clause 11 of the regulatory contract made on or about 16 July 2002 between those parties to vary clause 10.1(a) as to the date that the first respondent may issue a licence to a person other than the appellant to operate as a mobile carrier and was thereby the subject of res judicata or issue estoppel. 

136. It is important to set out the precise wording of this ground of appeal as Digicel, supported by the ICCC, have objected to some of the arguments raised by Telikom on the ground that they do not fall within the ground of appeal. We heard the objection at the start of the appeal hearing and reserved our ruling on it until now. We therefore have to – before determining this ground of appeal – summarise the points that Telikom wants to argue, identify those that Digicel and the ICCC say are outside the ground of appeal and rule on the objection. 

The points Telikom wishes to raise 

137. In their written submission Telikom argues that the primary Judge made three errors when dealing with the res judicata issue.

138. First, his Honour held that the Appeals Panel had determined the key issues, when it had not decided those issues at all.

139. Secondly – even if the Appeals Panel had determined the key issues – his Honour erred by concluding that res judicata applied, in that:

(i)	it only applies when the two proceedings involve identical causes of action, which was not the case here as in WS 1599/2006 the cause of action was breach of contract, whereas the Appeals Panel proceedings were solely concerned with the question whether the ICCC was in contravention of the Telecommunications Act;

(ii)	it only applies when the earlier decision was made by a body acting as a judicial tribunal, which was not the case here as the Appeals Panel only made an administrative decision; 

(iii)	it only applies when the earlier decision resolves the dispute between the same parties on a final basis, which was not the case here as the Appeals Panel only made an interim decision to preserve the status quo, envisaging that the final decision would be made by the National Court in WS 1599/2006. 

140. Thirdly, his Honour erred by finding that the decision of the Appeals Panel created an issue estoppel as the Panel did not determine the key issues at all. 

Digicel’s objection

141. It is the second alleged error, in particular the point about the Appeals Panel not acting as a judicial tribunal (No (ii)), that Digicel take objection to. They say that it is not raised in any of the six grounds of appeal, including ground (a), which is confined to the argument that the Appeals Panel did not determine the merits of the issue of whether Telikom agreed to a variation of the regulatory contract. Digicel say that this point was not raised in the National Court and it was even conceded by Telikom in the National Court that if the Appeals Panel had made a decision on the merits, res judicata may apply and they would be bound by the Appeals Panel’s decision. 

Telikom’s response 

142. Telikom argued that the point about the Appeals Panel not acting as a judicial tribunal is covered by ground of appeal (a). However, if the court took the view that it was not, they would apply to amend ground (a) by inserting the word "judicially" before the word "determined", so the ground would read:

His Honour erred in finding that the Appeals Panel constituted under Section 182A of the Telecommunications Act 1996 had ["judicially"] determined on the merits the issue whether the appellant … had agreed … to vary [the regulatory contract]. [Emphasis added.]

Has Digicel made a valid objection?

143. We consider that Digicel’s objection was properly made as the point about the Appeals Panel not acting as a judicial tribunal is a separate and discrete issue of law, not covered by ground (a). 

144. For the doctrine of res judicata to apply it must be shown that the previous decision relied on was made by a tribunal of some sort which had jurisdiction to finally decide the question arising between the parties. Such a tribunal does not have to be a court or be called a court (The Administration of the Territory of Papua and New Guinea v Doriga Guba [1973] PNGLR 603). The primary Judge considered this issue in detail in his written judgment, stating:

Given the importance of principles of res judicata, the principles extend to and apply to all decisions of a court as well as other tribunals however constituted, which are empowered and do come to a final decision on an issue or dispute between two or more disputing parties. The authority to hear a dispute and arrive at a final decision may be based on statute or by consent of the parties as in the case of arbitration. Where the decision maker is created and empowered by statute the presumption is usually in favour of the principle of res judicata …

145. His Honour held that as the Appeals Panel was created by statute and was given power to review decisions of the ICCC and arrive at a wide range of final decisions including affirming or nullifying ICCC decisions, its decisions could set up a res judicata. That was a critical part of his Honour’s reasoning, on which, before us, Telikom made extensive written submissions, arguing that his Honour was wrong. It is, however, a separate issue of law to the question whether the Appeals Panel determined the merits of the issue of whether Telikom agreed to vary the regulatory contract, which is the only issue covered by ground of appeal (a). 

Appellant must seek leave to depart from grounds of appeal

146. It is an integral part of the appeal process that an appellant is bound in the conduct of its appeal by the grounds of appeal set out in the notice of appeal (University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481). If an appellant wants to raise an issue not covered by its grounds of appeal, leave of the court must be sought and obtained. Granting leave to amend a notice of appeal is never a formality. 

147. In Papua Club Inc v Nusaum Holdings Ltd (2005) SC812, the Supreme Court outlined the considerations to be taken into account when deciding whether to grant leave. It was pointed out that the Court has on a number of occasions voiced its strong displeasure at the practice of counsel asking for last minute amendments to a notice of appeal. Leave would only be granted in exceptional circumstances and at the discretion of the Court, eg a sudden late change of counsel for the appellant, where the point to be raised seemed broadly to have merit (Rolf Schubert v The State [1979] PNGLR 66). Leave to add new grounds of appeal should not be granted on the day set for hearing where such grounds should properly have been included in the notice of appeal and where further adjournments would unduly delay the hearing of the appeal, unless adequate reasons were shown (Birch v The State [1979] PNGLR 75). Applications to add grounds of appeal in the course of an address in reply should not be entertained (Van Der Kreek v Van Der Kreek [1979] PNGLR 185).

148. In Charles Ombusu v The State [1996] PNGLR 335 the Court indicated that the focus should be more on "special circumstances" than "exceptional circumstances".

The test is … whether there are special circumstances in a particular case, which would make the case an exceptional case that should warrant the grant of leave to amend the notice of appeal. It is not whether there are exceptional circumstances that would warrant the grant of leave. 

Should leave to amend be granted? 

149. Having regard to those considerations we make the following observations on Telikom’s application for leave to amend ground of appeal (a). 

150. First, leave has been sought very late – on the day of the hearing – and only in response to an objection by the respondents. It should have been very clear to Telikom, represented by senior counsel, that the point of law they wished to raise was not covered by their existing grounds of appeal. They could not reasonably have been taken by surprise by the objection, which we have found was properly made. 

151. Secondly, the point about the Appeals Panel not acting as a judicial tribunal was not raised before the primary Judge. That does not mean that Telikom was necessarily prevented from raising it in the Supreme Court. But even if it was included as a ground of appeal in the beginning, they required leave of the Supreme Court to argue it. Telikom has not sought leave to argue the point. This issue was discussed in the Papua Club case, in which the Court departed from the approach taken in Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705 (where the Court held that the appellant cannot raise points of law not raised in the National Court) and followed the approach it took in Van Der Kreek v Van Der Kreek [1979] PNGLR 185 and the approach of the High Court of Australia in Dianne McGrath Fingleton v The Queen [2005] HCA 34 (there is no blanket prohibition against allowing parties to raise new points at an appeal; it is a matter for the discretion of the court but the party seeking to agitate the new point must establish special or exceptional circumstances to warrant its determination). So, in addition to asking for leave to amend the ground of appeal, Telikom should have sought leave to argue the point of law that was not put before the primary Judge. 

152. Thirdly, we do not think the proposed amendment is an efficacious one. Simply inserting the word "judicially" before the word "determined" in ground (a) does not achieve very much. It does not make the point that Telikom wanted to make in its written submissions. 

153. Finally, Mr Webb, for Telikom, failed to convince us, according to the Charles Ombuso test, that there were special circumstances in this particular case that make this an exceptional case to warrant a last-minute amendment to the grounds of appeal.

154. We therefore refuse leave for Telikom to amend the notice of appeal. We will not further consider point No (ii) of the second alleged error of the primary Judge on the res judicata issue. 

Remaining issues

155. The issues we now address are:

•	Did the Appeals Panel determine the key issues that were before the National Court in WS 1599/2006? 

•	Did the two proceedings involve identical causes of action? 

•	Did the Appeals Panel decision resolve the dispute between the same parties on a final basis? 

•	Did the decision of the Appeals Panel create an issue estoppel? 
 
Did the Appeals Panel determine the key issues that were before the National Court in WS 1599/2006? 

156. The primary Judge carefully examined the Appeals Panel’s decision in his judgment. His Honour clearly appreciated the argument that Telikom was raising and acknowledged that there were passages in the Appeals Panel’s decision which suggested a reluctance to make final decisions in view of the National Court proceedings in WS 1599/2006. We have gone through the same process. We appreciate the argument being raised by Telikom and we have carefully examined the Appeals Panel’s decision. We also appreciate the peculiar position that Mr Shogren, who constituted the Panel, was put in, by being asked to determine issues that were at the same time before the National Court. 

157. Mr Shogren, at paragraphs 48-50 of his decision, said:

[48] … it appears to me that any decision I make in respect of the issue of the licences will be subject to the decision of the National Court in the proceedings referred to. If I were making a decision after the Court has handed down its decision, my decision could not be inconsistent with the decision of the Court. However, as mentioned above, I have taken the view that the Telecommunications Act requires me to make any decision within four weeks of the relevant application for review being lodged.

[49] In the circumstances, I consider that I should confirm the Commission’s decision to issue the licences. This has the effect of maintaining the status quo, leaving the question to be decided by the Court.

[50] I am of the same view in regard to the question whether I should stay the operation of the Commission [decision as] to issue of the licences. I will maintain the status quo by not staying the Commission’s decision.

158. We agree with the primary Judge who said that if those passages are considered in isolation it would seem that the Appeals Panel was not deciding the key issues that were before the National Court. But we also agree with his Honour’s view that the whole of the reasons for the Appeals Panel’s decision must be considered and that every passage of the decision must be considered in the context of the whole decision. That is a very pertinent point as, immediately after the above passages, Mr Shogren continued:

[51] In the event that for some reason these matters are not decided by the Court, and in any case because it appears that, if the applications are valid, I should decide the matters they raise, I have reached views on the material before me.

159. Thus, Mr Shogren was contemplating that the situation might arise where the issues were not determined by the courts. He was indicating that he would, therefore, decide – or "determine", to use the word in the relevant ground of appeal – the issues raised by Telikom’s application. He was also indicating that he was statutorily obliged to determine the issues, which is what he proceeded to do in the following paragraphs.

160. Mr Shogren held:

[52] I consider that the issuing of licences prior to 17 October 2007 that do not permit operations until 17 October 2007 is not consistent with the unamended regulatory contract. In my view the intent of Clause 10.1 was to prohibit competition before 17 October 2007. Issuing a licence before that date so that a new operator could take preparatory actions with a view to commencing operations on that date is reasonable and consistent with the objectives set out in Section 5 of the ICCC Act. Telikom’s economic interests are not affected until the monopoly period expires. It is also consistent with the natural meaning of the words of the clause. If the intention were to prevent preparatory work being carried out before 17 October, and hence to postpone any competitive activity until some considerable time after 17 October, I would expect the regulatory contract to have made that explicit.

[53] If the regulatory contract has been amended, subject to the conditions claimed by Telikom, then I consider that the issuing of the licences is not inconsistent with those conditions. I consider that all three conditions go to Telikom’s interest in regulation not favouring new entrants. In respect of Condition 1, having examined the materials, I am satisfied that, in advance of the new licensees commencing operations, Telikom has been provided with full details of the terms and conditions and regulations to be applied by the Commission, and that that is sufficient to meet the condition. In respect of Condition 2, I consider that the fact that the new licensees face the same regulatory obligations as Telikom is sufficient. Telikom is not subject to a situation where it must provide services in uneconomic areas to the benefit of competitors who are not obliged to do so. In respect of Condition 3, Telikom has been assured that it will be required to meet similar technical and safety requirements as those required of its competitors. This meets the condition. I do not accept that the condition requires that all such requirements be determined and promulgated prior to the issue of licences.

[54] In light of these findings, I do not need to reach a view about whether the regulatory contract has in fact been amended as set out in the Gazette Notice of 8 March 2007. If it has, the application must fail. If it has not, I consider the application fails in any case. And if it has been amended subject to Telikom’s conditions, then again I consider that the application fails.

161. We can see how Mr Shogren’s use of the words "I do not need to reach a view about whether the regulatory contract has in fact been amended" provides support for the argument that he did not determine the issue of whether the regulatory contract had been amended and that he left the issue to be determined by the National Court. But, we reiterate, the use of words must be considered in the context of the whole decision. Mr Shogren was, in effect, saying that it did not matter whether the regulatory contract had been amended as in either case Telikom’s application failed. Therefore, he did, in fact, determine the key issues that were before the National Court.

Did the two proceedings involve identical causes of action? 

162. Mr Webb submitted that in WS 1599/2006 the cause of action was breach of contract, whereas the Appeals Panel proceedings were solely concerned with the question whether the ICCC was in contravention of the Telecommunications Act. We think that that distinction is misleading and artificial. Though it is reasonable to regard WS 1599/2006 as a breach of contract action, it is equally reasonable to label it as an action for enforcement of the provisions of the ICCC Act and the Telecommunications Act. This is apparent from paragraph 8 of the amended statement of claim filed on 9 November 2006. After setting out the relevant provisions of the regulatory contract and the two Acts relied on, paragraph 8 stated:

The defendant has evinced an intention not to be bound by the said terms of the regulatory contract, and the said provisions of the ICCC Act and/or the Telecommunications Act and has expressed an intention to grant a public mobile licence to a person other than the plaintiff prior to 17 October 2007.

163. As for the Appeals Panel proceedings, while it is difficult to label it as an action for breach of contract, it clearly was a statutory procedure – an action – for enforcement of the provisions of the ICCC Act and the Telecommunications Act. In that sense, the causes of action in each proceeding were, if not identical, than certainly, in substance, the same.

164. In any legal proceeding the term ‘cause of action’ can be used to describe the basis of the remedies being sought, ie the legal ingredients or elements that the person bringing the action must prove in order to succeed. In the present case, the legal ingredients in the proceedings before the Appeals Panel were:

•	there was a regulatory contract in place between Telikom and the ICCC, entered into under the ICCC Act and the Telecommunications Act;

•	the regulatory contract prevented the ICCC from issuing a public mobile licence to anyone other than Telikom before 17 October 2007;

•	though there was provision for variation of the regulatory contract by agreement, Telikom did not consent to variation;

•	issuing a licence to Digicel in March 2007 was contrary to the regulatory contract, the ICCC Act and Telecommunications Act.

165. Those legal ingredients – the cause of action – were the same as those raised in WS 1599/2006. The two proceedings, in effect, involved identical causes of action. 

Did the Appeals Panel decision resolve the dispute between the same parties on a final basis? 

166. Yes. Though Mr Shogren contemplated that the decision he made to confirm the ICCC’s issuance of the licence to Digicel might subsequently be overturned by the National Court (if it decided WS 1599/2006 in Telikom’s favour) he appreciated that he was obliged to make a final decision, which he did. That decision resolved the dispute between the parties on a final basis.

Did the decision of the Appeals Panel create an issue estoppel? 

167. Yes. We agree with the primary Judge when he said that if for some reason res judicata did not apply, than the related doctrine of issue estoppel prevented Telikom from prosecuting the key issues determined by the Appeals Panel, in the National Court.

Conclusion as to issue No 3

168. The primary Judge was correct in concluding that the doctrine of res judicata prevented Telikom from prosecuting the key issues determined by the Appeals Panel, in the National Court.

169. We therefore dismiss ground (a) of the appeal.

RESOLUTION OF GROUNDS OF APPEAL

170. We have dismissed five of six grounds of appeal and resolved two of the three major issues against Telikom. The only ground of appeal upheld is (f) – the second major issue – about whether Telikom used the wrong procedure in the National Court.

171. We have found that the primary Judge correctly dismissed the proceedings for two reasons:

•	Telikom was guilty of an abuse of process due to the unjustified multiplicity of proceedings; and

•	Telikom was prevented by the res judicata doctrine from prosecuting issues already finally resolved in the Appeals Panel.

172. Therefore we dismiss the appeal, confirm the judgment of the National Court and order the appellant to pay the first and second respondents’ costs of these proceedings on a party-party basis, to be taxed if not agreed. In view of the complexity and significance of the case, we certify the costs of overseas counsel.
 
Appeal dismissed, by majority.
______________________________

Blake Dawson Waldron: Lawyers for the Appellant
Gadens Lawyers: Lawyers for the First Respondent
Young & Williams: Lawyers for the Second Respondent