Application under Section 155(2) (B) of the Constitution, between Michael Newall Wilson and Clement Kuburam trading as CK Valuers and Realtors (2016) SC1489

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J, Logan & Bona JJ
• Judgment Date: 11 March 2016
• Citation: (2016) SC1489
• Docket Number: SC REVIEW No 30 of 2014
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1489

Full Title: SC REVIEW No 30 of 2014; Application under Section 155(2) (B) of the Constitution, between Michael Newall Wilson and Clement Kuburam trading as CK Valuers and Realtors (2016) SC1489

Supreme Court: Gavara-Nanu J, Logan & Bona JJ

Judgment Delivered: 11 March 2016

SC1489

PAPUA NEW GUINEA

[IN THE SUPREME COURT JUSTICE]

SC REVIEW No. 30 OF 2014

APPLICATION UNDER SECTION 155(2) (b) OF THE CONSTITUTION

BETWEEN

MICHAEL NEWALL WILSON

Applicant

AND

CLEMENT KUBURAM trading as CK Valuers AND REALTORS

Respondent

Waigani: Gavara-Nanu J, Logan & Bona JJ

2015: 31st August

2016: 11th March

JUDICIAL REVIEW – Application for leave to review – Constitution; s. 155 (2) (b) - Jurisdiction of the Supreme Court to review a judicial act – Objection to competency of the application for leave to review – Application for leave to review filed after an application for leave to appeal dismissed for being incompetent – Application for leave to appeal decision of the National Court filed out of time – Applicant and his lawyers not complying with Court orders – Applicant by his conduct allowing the statutory appeal period to run out –Whether the dismissal of the application for leave to appeal by the Supreme Court as the final court of appeal a bar to a subsequent application for leave to review – Constitution; s. 155 (2) (a) - Whether application for leave to review an abuse of process.

Facts

By a writ of summons, the respondent claimed the sum of K35, 280.00, against the applicant and Mr Valentine Kambori for valuation services he performed on a property allegedly belonging to the applicant after Mr Kambori commissioned him to do the valuation. The respondent claimed Mr Kambori was an agent of the applicant at all relevant times and that the applicant had agreed to pay for the valuation. The applicant denied the respondent’s claim.

At directions stage, the applicant and his lawyers failed to comply with orders and directions issued by the primary judge, and failed to attend court hearings on return dates. They failed to return numerous phone calls made to them by the respondent’s lawyers and also failed to respond to telephone messages and emails by the respondent’s lawyers. Such conduct of the applicant and his lawyers subsequently resulted in the judgment being entered for the respondent in the amount claimed with interest.

The applicant filed an application for leave to appeal against the National Court decision to enter judgment for the respondent. However, the application was filed out of time and was dismissed for being incompetent. The applicant then filed an application for leave to review the decision of the National Court to enter judgment for the respondent under s. 155 (2) (b) of the Constitution.

The respondent filed an objection to competency against the applicant’s application for leave to review claiming that this Court has no jurisdiction to hear the application because, the Supreme Court which is the final court of appeal as stated under s. 155 (2) (a) of the Constitution had dismissed the same issues raised in the applicant’s application for leave to appeal.

Held:

1. The Court has jurisdiction to review the applicant’s application for leave to review filed under s. 155 (2) (b) of the Constitution: Application by Anderson Agiru (2002) SC686 and Application by Herman Leahy (2006) SC855 applied.

2. The applicant’s application for leave to review should be dismissed because the conduct of the applicant and his lawyers were the main contributing factors to the applicant’s application for leave to appeal being filed out of time. No reasonable explanation was given by the applicant for failing to file his application for leave to appeal within time: Application by Jeffery Balakau [1998] PNGLR and Avia Aihi v. The State [1981] PNGLR 81 referred to.

3. (Per Gavara-Nanu and Bona JJ, Logan J dissenting). The conduct of the applicant and his lawyers were dilatory and contumelious which directly resulted in the applicant filing his application for leave to appeal out of time. The applicant’s application for leave to review under s. 155 (2) (b) of the Constitution was in those circumstances an abuse of process: Anderson Agiru v. The Electoral Commission (2002) SC687; and The State v. Peter Painke [1976] PNGLR 210 referred to.

4. (Per Gavara-Nanu and Bona JJ). Although abuse of process was not a ground relied on by the respondent seeking to dismiss the applicant’s application for leave to review, the issue having been raised in Court and addressed fully by the parties in their respective submissions, the Court in the exercise of its inherent power could decide the issue to protect its processes from being abused: Breckwoldt & Co. (N.G.) Pty v. Gnoyke [1974] PNGLR 106 and PNG Forest Products and Inchcape Berhad v. The State & Jack Genia, Minister for Forests [1972] PNGLR 85 and NAE Limited (1-21320) v. Curtain Bros & Ors – OS 225 of 2014 (12 March, 2014) referred to.

5. (Per Logan J) Even though the conduct of the applicant and his lawyers did not amount to an abuse of process, it was nonetheless so dilatory, particularly given that the applicant was a senior legal practitioner, that the case was not one for the exercise of the discretion to grant leave to review.

6. The applicant to pay the respondent’s costs of and incidental to the applicant’s application for leave to review. In regard to the respondent’s objection to competency of the applicant’s application for leave to review, the dilatory and contumelious conduct of the applicant and his lawyers was what really necessitated or forced the respondent to file the objection, thus occasioning the respondent unnecessary litigation and expense. Therefore although the objection to competency had been dismissed, the fair order was for the parties to bear their own costs. Keddie v. Faxall [1955] VLR 320 and Donald Campbell Co v. Pollack [1927] AC 732; All ER Rep. 1 referred to.

Cases cited:

Papua New Guinea Cases

Ace Guard Dog Security Services Ltd v. Yama Security Services Ltd and Lindsay Lai Lai (2003) N2459

Anderson Agiru v. The Electoral Commission (2002) SC687

Application by Anderson Agiru (2002) SC686

Application by Herman Leahy (2006) SC855

Application by Jeffery Balakau [1998] PNGLR 437

Application by Joseph Kintau (2011) SC1125

Avia Aihi v. The State (No.1) [1981] PNGLR 81

Avia Aihi v. The State (No.2) [1982] PNGLR 44

Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106

Coca Cola Amati (PNG) Ltd v. Yanda (2012) SC1221

Curlewis & Reuben Renagi v. Protect Security and Communications Limited and David Yuapa (2013) SC1274

Curtain Bros (PNG) Ltd v. University of Papua New Guinea (2005) SC788

NAE Limited (1-21320) v. Curtain Bros &Ors – OS 225 of 2014 (12th March, 2015)

National Executive Council v. Public Employees Association [1993] PNGLR 264

PNG Forest Products and Inchcape Berhad v. The State & Jack Genia, Minister for Forests [1972] PNGLR 85

Porgera Joint Venture & Placer (PNG) Ltd v. Joshua Siau Yako & Ors (2008) SC916

SCR No. 5 of 1987; re Central Banking (Foreign Exchange and Gold Regulations) [1987] PNGLR 433

Steven Punagi v. Pacific Plantation Timber (2011) SC1153

The State v. Peter Painke [1873] PNGLR 210

Waghi Savings and Loan Society Ltd v. Bank South Pacific Ltd (1980) SC185

Other cases

Bringinshaw v. Bringinshaw (1938) 60 CLR 336

Donald Campbell Co v. Pollack [1927] AC 732; All ER Rep. 1

Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC 529

Keddie v. Faxall [1955] VLR 320

Counsel

S.Wanis, for the Applicant/Respondent

D.Mel, for the Respondent/Applicant

19th March, 2016

1. GAVARA-NANU J: On 4 February, 2014, the respondent, Mr Clement Kuburam, a qualified valuer, commenced proceeding in WS No. 61 of 2014 against Mr Michael Wilson (the applicant) and Mr Valentine Kambori, claiming K35, 280.00 in unpaid costs for valuation services. It was claimed by the respondent that he had carried out a valuation on a property belonging to the applicant described as Portion 252 Granville Port Moresby, at the instruction of Mr Kambori, who according to the respondent was acting as an agent for the applicant. He further claimed that the applicant undertook to pay for the valuation. The applicant was served with the writ first. Mr Kambori was served later, however he has not filed a notice of intention to defend or a defence. The claim by the respondent was for breach of contract resulting from the alleged failure by the applicant and Mr Kambori to pay his costs.

2. In the defence filed by the applicant to the Statement of Claim, the applicant denied having any association with Mr Kambori. He also denied that Mr Kambori had acted as his agent at the material time, even if Mr Kambori had instructed the respondent to do the valuation as alleged. The applicant denied being aware of any contract between him, Mr Kambori and the respondent for the valuation services.

3. The applicant is a very senior litigation lawyer with many years of experience. He is also a principal of the firm, Warner Shand Lawyers, which is the solicitor on record for the applicant.

4. The case was first mentioned in...