SC2505

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 100 OF 2023

BETWEEN:
TALIBE HEGELE
as Chairman of Yumbi Incorporated Land Group
First Appellant

AND:
YUMBI INCORPORATED LAND GROUP
representing members of the Yumbi Clan
Second Appellant

AND:
DAVID MANAU
Secretary, Department of Petroleum and Energy
First Respondent

Et al
Second to Tenth Respondents

Waigani: Hartshorn J
2023: 12th September, 27th October

SUPREME COURT APPEAL– practice and procedure - Application for leave to appeal – whether an abuse of process

Cases Cited:
Lomai v. Seal (Manus) Ltd (2008) SC1326
Nae Limited v. Curtain Bros Papua New Guinea Ltd (2015) N6124
Michael Newell Wilson v. Clement Kuburam (2016) SC1489
Solomon Tato v. Samson Akunai (2016) SC1511
Ian Smith Ikowari v. Minister for Foreign Affairs (2022) SC2340
Jeffery Dean Kennedy v. Adam Cheah (2022) SC2479
Kenken v. National Airports Corporation (2022) SC2247

Counsel:
Mr. H. Pora, for the Appellants
Mr. C. Kopunye, for the Second and Third Respondents
Mr. W. Mininga, for the Fourth Respondent
Mr. M. Kombri, for the Tenth Respondent

27th October 2023

1. HARTSHORN J: The appellants filed this application for leave to appeal two interlocutory decisions which were made in the same National Court proceeding (referred to as the two decisions or the first decision and the second decision). These two decisions are concerned with amongst others, costs to be paid by the appellants.

2. What is before this court for determination is the objection to competency of the tenth respondent to the application for leave to appeal.

3. In the course of the hearing of the objection to competency, the court requested to hear submissions from the parties on whether the substantive application for leave to appeal should be dismissed as being an abuse of process of the court. The court heard the submissions of the parties on this point and reserved its decision which is now delivered.

Background

4. In the application for leave to appeal, the appellants set out the two decisions in National Court proceeding OS 236 of 2022 in respect of which leave is sought to appeal. In the order of 6th June 2023 which comprises the first decision, there is reference to previous court proceedings and final orders and previous proceeding orders. The appellants submit that these are references by the primary judge to an order made by another primary judge on 19th November 2021 in another proceeding, being OS 173 of 2020 (IECMS) (CC1), Talibe Hegele and Yumbi Incorporated Land Group v. State and Ors.

5. The order made in OS 173 of 2020 (173/20 Order) is as follows:

(i)	Leave is granted to the Plaintiff to discontinue these proceedings forthwith.
(ii)	The Plaintiff shall pay full indemnity costs to all Defendants.
(iii)	Such costs of these proceedings shall be paid before the Plaintiff files any other legal proceedings.
(iv)	Time is abridged to the date of these orders to take effect forthwith.

6. In the application for leave to appeal, the appellants state amongst others, that 
they reinstituted the same proceeding on 9th November 2022, almost one year 
after the 173/20 Order. That proceeding is OS 236 of 2022, the proceeding from 
which the application for leave to appeal herein emanates. It is not controversial
that the costs of OS 173 of 2020 referred to in [3] of the 173/20 Order have not 
been paid. The appellants submit that this is because the amount of those costs was 
not agreed. As those costs are not agreed, the costs are subject to taxation and the 
taxation has not occurred.

7. The status of the application for leave to appeal therefore, is that the appellants 
are seeking leave to appeal two decisions which were made in a National Court 
proceeding, which was filed contrary to another National Court Order being [3] 
173/20 Order. Further, this application for leave to appeal was filed contrary to [3] 
173/20 Order.

Consideration

8. This court has the power of its own volition to determine whether a proceeding 
is an abuse of process. In Michael Newell Wilson v. Clement Kuburam (2016) 
SC1489, Gavara Nanu J. stated at [33]:

“33. It is an established principle of law that the Court has a duty to protect its processes from being abused. Where there is such abuse, the Court has the inherent power to deal with it. The Court can exercise this power even without an application being made by a party. This is necessary for the fair and proper administration of justice by the Court.”

9. In Ian Smith Ikowari v. Minister for Foreign Affairs (2022) SC2340 at [8] and [9], the Court said:

“8. In Don Polye v. Jimson Papaki & Ors (2000) SC637, the Court said:
“This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly, any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process.”

9. In ensuring the integrity of its processes this Court may exercise that power of its own volition: Moime v. National Housing Corporation (2012) SC1191; Minicus v. Telikom (2014) SC1368; Amben v. Telikom (2015) SC1422; National Airports Corporation v. Simitap (2019) SC1883; State v. Nimbituo (2020) SC1974 - see also Don Polye v. Jimson Papaki (supra); Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978; Rimbao v. Pandan (2011) SC1098 and Mendepo v. National Housing Corporation (2011) SC 1169.”

10. I also refer to a similar statement of the law in Jeffery Dean Kennedy v. Adam Cheah (2022) SC2479 at [7]:

“7. As to whether a single judge of the Supreme Court should consider whether an application for leave to review is an abuse of process when an application seeking such redress is not before the court, notwithstanding that the applicant did not take issue with this court’s authority to do so, I refer to the Supreme Court judgment of Independent State of Papua New Guinea v.  Hon. Belden Namah (2020) SC2037, in which at [9] and [10] the Court said:

“9. In regard to there not being an application before the court seeking redress for abuse of process, we reproduce [27] of Amet v. Yama (2010) SC1064 from the decision of Salika DCJ (as he then was) and Batari J:

“27.	The issue of competence is to do with legal and jurisdictional aspects of the court process.  More often than not, this concerns the validity of the very proceedings before the court.  Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held: 

“It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court.””

10. Further, in Wilson v. Kuburam (2016) SC1489, Gavara Nanu J with whom Bona J agreed, said at [31]:

“In any event, this Court has the inherent jurisdiction to consider and determine the issue of abuse of process on its own initiative as it is a relevant issue which has arisen before the Court: Anderson Agiru v. The Electoral Commission (supra)”””

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

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

12. In this instance, the appellants commenced a National Court proceeding contrary to the order of another National Court. There is no evidence that the 173/20 Order has been stayed, set aside or successfully appealed and so it remains in force.

13. An order of the Court must be obeyed even if it is thought to be wrong. In Solomon Tato v. Samson Akunai (2016) SC1511 at [53] the Court said:

“53. As Wood V-C stated in Spokes v Banbury Board of Health [1865] UKLawRpEq 38; (1865) LR 1 Eq 42:

The simple and only view is that an order must be obeyed, that those who wish to get rid of the order must do so by the proper course.

54. That is, of course, an appeal or, in the case of interim orders, an appeal or application to vary or discharge them.” 

14. Further I reproduce the following passage from Lomai v. Seal (Manus) Ltd (2008) SC1326 at [14]:

“14. Litigants and especially lawyers representing their clients must take heed of court orders and comply with them. Orders or directions given by the court are to be obeyed by all parties who seek redress through the courts and all persons to whom the order relates. A party may not like an order made but as long as it remains in force, he must obey its command. This has been emphasized many times over in this jurisdiction in reported and unreported cases including Patterson v PNG Law Society (supra) where the Court said when quoting the often cited principle of Hadkinson v Hadkinson [1952] 2 All ER 567 which states (per Lomer LJ) at p 569:
It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham LC, said in Chuck v Cremer (1846) 1 Coop T Cott 205; [1846] EngR 924; 47 ER 820: "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.”

15. This passage was reproduced with approval in Kenken v. National Airports Corporation (2022) SC2247 at [30]. 

16. The appellants concede that they commenced OS 236 of 2022 even though the costs referred to in [3] 173/20 Order had not been paid. They submit that they had and continue to have reasons for doing so. However, the fact remains that the appellants filed other legal proceedings before the costs referred to in [3] 173/20 Order had been paid and also have filed this application for leave to appeal. The filing of both of these proceedings is contrary to a valid National Court Order which remains in force.

17. To commence a National Court proceeding contrary to a current National Court order, to my mind constitutes an abuse of process. Further, to appeal a decision made in a National Court proceeding which has been commenced contrary to a National Court order also constitutes an abuse of process as does filing an application for leave to appeal proceeding contrary to a National Court Order.

18. The above scenarios have all occurred in this instance.

19. Consequently, given the above, this application for leave to appeal should be dismissed as an abuse of process. Given this, it is not necessary to consider the other submissions of counsel.

Orders

20.    The Court orders that:

a)	This application for leave to appeal is dismissed as it is an abuse of the Court’s process.

b)	The costs of and incidental to the said application for leave to appeal shall be paid by the appellants to the second, third, fourth and tenth respondents to be taxed if not otherwise agreed.	

__________________________________________________________________
Henry Pora Lawyers: Lawyers for the Appellants                                          
Solicitor General: Lawyers for the First, Fifth and Sixth Respondents     
Mineral Resources Development Company Limited: Lawyers for the Second and Third Respondents          
Bradshaw Lawyers: Lawyers for the Fourth Respondent                             
Kombri and Associates: Lawyers for the Tenth Respondent