SC2785
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCCA NO. 2 OF 2024

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY 
THE HON. DOUGLAS TOMURIESA MP

WAIGANI: MANUHU J, DAVID J, HARTSHORN J, YAGI J, MAKAIL J,
KARIKO J, TOLIKEN J

    29 SEPTEMBER, 10 OCTOBER 2025

CONSTITUTION – s 18 application - practice & procedure – application to summarily dismiss - Supreme Court Rules, O13 r16 – whether abuse of process 

The first intervener in an application under s 18 of the Constitution applied to have the proceeding summarily dismissed after his objection to competency was dismissed for being incompetent. The question arose whether the application to dismiss was itself an abuse of process. 

Held 

An application to summarily dismiss an application under s 18 of the Constitution on grounds that raise competency issues which were raised in an objection to competency which was dismissed earlier, constitutes an abuse of process. 

Cases cited
Amet v Yama (2010) SC1064
Application by Hon. Douglas Tomuriesa (2024) SC2610
Application by the Hon. Douglas Tomuriesa MP (2024) SC2645
Application of Hon. Peter O’Neill (2023) SC2400 
Michael Wilson v Clement Kuburam (2016) SC1489 

Counsel
L Giyomwanauri for the applicant
N Onom and A Serowa for the first intervener
W Mapiso for the second intervener

1.	BY THE COURT: On 28 October 2024, the Leader of the Opposition was by consent declared to have standing to pursue this application under s 18(1) of the Constitution (the Application). The first intervener then moved his objection to the competency of the Application (the Objection) which was dismissed as incompetent for not being filed within the time-limit prescribed by the Supreme Court Rules. See Application by the Hon. Douglas Tomuriesa MP (2024) SC2645.

2.	On 5 November 2024, the first intervener filed an application principally under O13 r16 of the Supreme Court Rules, seeking to summarily dismiss the Application as being an abuse of process as it does not raise questions of interpretation or application of a constitutional law as required under s 18(1) (the Dismissal Application). 

JURISDICTION

3.	The Supreme Court’s jurisdiction to summarily dismiss a proceeding is found in O13 r16 which states (with emphasis added): 

16. 	(1) 	The Court or a Judge may summarily determine a matter: 
		(a)	on application by a party; or
		(b)	on referral by a Judge; or 
		(c) 	on the Court’s or Judge’s own initiative; or 
		(d) 	upon referral by the Registrar in accordance with the procedure set out in sub-rule (2) below or pursuant to s 11 of the Act.

4.	The first intervener also relies on the court’s inherent jurisdiction to control its proceedings from being abused. 

5.	We are satisfied we have jurisdiction to hear the application.

FIRST INTERVENER’S SUBMISSIONS

6.	The first intervener submits that the Application does not raise constitutional issues necessary to invoke the jurisdiction of the Supreme Court under section 18(1) of the Constitution and this amounts to an abuse of process. 

7.	Whilst he acknowledges that this claim formed the basis for the Objection, he nevertheless contends that for the same reason, the Application is an abuse of process and ought to be summarily dismissed. The first intervener also requests the Court to consider that the Objection was not decided on its merits and that the question of competency may be raised at any stage of the proceedings (Amet v Yama (2010) SC1064).   

ABUSE OF PROCESS

8.	As to what constitutes an abuse of process, we respectfully endorse the observations of Gavara-Nanu, J in Michael Wilson v Clement Kuburam (2016) SC1489 at [25]:

The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v Public Employees Association [1993] PNGLR 264 and The State v Peter Painke [1976] PNGLR 210.

(Emphasis added)

9.	We are not persuaded by the first intervener’s argument the Application is an abuse of process. With respect, the grounds upon which the Attorney General seeks summary dismissal are matters concerning the merits of the Application and these may be argued at the substantive hearing of the Application. 

10.	Further, it is our view that the Dismissal Application itself constitutes an abuse of process. It is an attempt by the first intervener, after failing to move the incompetent Objection, to argue the issue of competency under the guise of an application for summary dismissal. This is a clear case where “the processes of the court have been improperly used”. 

11.	It is immaterial that the Objection was not dismissed on its merits. The right of the first intervener to challenge the competency of the Application has been exhausted. He was late in exercising his right. He cannot now reagitate the issue. Although the Court may raise the issue of competency at any stage of proceedings, the same does not apply to a party in a s 18 application. An objection to competency of a s 18 application is governed by O11 r28(a) and O7 r15(a) of the Supreme Court Rules the combined effect of which is that the objection must adopt Form 9 and be filed within 14 days of service of the application: Application by the Hon. Douglas Tomuriesa MP (supra) at [10].  At [15], the Court explained:

However, Amet v Yama refers to the Court’s power to raise competency issues, and it is not authority for the proposition that an objection to competency may be made outside any time limit for objecting. 

12.	We respectfully agree with the statement. 

13.	Accordingly, we dismiss the Dismissal Application. 

CONFLICT OF PRECEDENTS

14.	It was considered necessary to empanel a seven-member Supreme Court to hear this matter to settle the conflict of precedents of the Supreme Court between the case authorities of Application of Hon. Peter O’Neill (2023) SC2400 and Application by Hon. Douglas Tomuriesa (2024) SC2610. Both cases concerned s18 applications decided by five-member benches.

15.	In the first case, the Supreme Court held amongst others that entertaining an objection to competency after standing has been determined is effectively requesting one Supreme Court to review the final order of another Supreme Court, which the Supreme Court has no jurisdiction or power to do. In the later case however, the Supreme Court (by majority) decided that there is no rule of practice or procedure requiring an objection to competency to be heard and determined before the declaration on standing. 

16.	In the present case, the Objection was heard and decided on 29 October 2024 after the declaration as to standing was granted by consent. In the circumstances, we consider it improper for us to resolve the conflict of precedents described above. To do so would in effect amount to a review of the earlier Supreme Court final orders in this Application made in October.  

17.	In any case, the issue of the conflict of precedents is not properly raised by the Dismissal Application. 

18.	We therefore decline to give an opinion on the issue. 

ORDER

19.	The Court orders that:

(1)	The application for summary dismissal Objection to competency filed 5 November 2024 by the first intervener is dismissed for being an abuse of process. 
(2)	Costs will follow the event.
(3)	The proceedings are adjourned to the Registry to be listed for further directions to progress the substantive application to hearing. 
________________________________________________________________
Lawyers for the applicant: Young & Williams Lawyers
Lawyers for the first intervener: Palem Onom Lawyers
 Lawyers for the second intervener: Guardian Legal Services