Telikom PNG Limited v Independent Consumer and Competition Commission and Digicel (PNG) Limited (2007) N3144

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 05 July 2007
• Court: National Court
• Citation: (2007) N3144
• Docket Number: WS NO 1599 of 2006
• Year: 2007
• Judgement Number: N3144

Full Title: WS NO 1599 of 2006; Telikom PNG Limited v Independent Consumer and Competition Commission and Digicel (PNG) Limited (2007) N3144

National Court: Kandakasi, J

Judgment Delivered: 5 July 2007

N3144

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1599 of 2006

BETWEEN

TELIKOM PNG LIMITED

Plaintiff

AND

INDEPENDENT CONSUMER AND COMPETITION COMMISSION

First Defendant

AND

DIGICEL (PNG) LIMITED

Second Defendant

Waigani: Kandakasi, J.

2007: 21 June

: 5 July

PRACTICE & PROCEDURE – Mode of commencement of proceedings – Relief sought – Seeking declaration that a decision by a public authority as invalid or null and void -Originating Summons seeking judicial review only proper mode of commencement and maintenance of proceedings under O 16 r 1 of the National Court Rules, which is an exclusive process – Issuance of writ of summons an abuse of process of the Court – Proceedings dismissed for abuse of process of the Court – Order 12 r 40 and Order 8 r 27 National Court Rules.

PRACTICE & PROCEDURE – Issuance and maintenance of three separate proceedings by one party against the same party or parties out of a decision of a public authority – One for judicial review by Originating Summons and another for declaration and damages by Writ of Summons and third by way of appeal to administrative tribunal whilst Court proceedings pending – Whether this constitutes abuse of process of the Court – Essentially same main issue in all proceedings – Proceeding by originating summons for judicial review under O16 r 1 only correct mode of proceedings open – Issuance other proceedings amounts to an abuse of the process - Proceedings dismissed for abuse of process of the Court – Order 12 r 40 and Order 8 r 27 National Court Rules.

PRACTICE & PROCEDURE – Application for judgment in default of discovery – Party requiring discovery foreshadowing amendment to its pleadings – Requiring opposing party to give discovery amounts to an abuse of the process of the Court – Applicant failing to demonstrate repeated default or the opposing party trying to avoid an expedited trial and likely prejudice to party applying for default judgment – Application dismissed as having no merit – Order 9 r 15 National Court Rules.

Cases Cited

Papua New Guinea Cases

The Administration of the Territory of Papua and New Guinea v Doriga Guba [1973] PNGLR 603.

The State v. Peter Painke [1976] PNGLR 210.

National Capital District Interim Commission v. Bogibada Holdings Pty Ltd Pty Ltd [1987] PNGLR 135.

Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425.

The National Executive Council, the Attorney-General and Luke Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264.

NEC and Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264.

Tulom Abai and 765 others v. The State (20/12/95) N1402.

Michael Gene v. Hamidian-Rad [1999] PNGLR 444.

AGC (Pacific) Limited v. Sir Albert Kipalan & Ors (24/02/00) N1944.

Koitaki Farms Ltd v. Kemoko Kenge & Ors (2001) N2143.

Anderson Agiru v Electoral Commission and The State (2002) SC687.

Ace Guard Dog Security Services Ltd v Yama Security Services Ltd & Linday Lai Lai (2003) N2459.

Mark Ekepa & ors v. William Gaupe & ors (re Porgera Landowners Association) (2004) N2694.

Barclay Bros (PNG) Ltd v. The Independent State of Papua New Guinea (09/12/05) SC813.

Curtain Bros (PNG) Limited and Curtain Bros (Qld) Pty Limited v. University of Papua New Guinea (2005) SC788.

Naima Investments Ltd v. The State [OS 653 of 2006], 28 March 2007.

Overseas Cases cited:

Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273.

Counsels:

Mr. J.A., Griffin, M.M. Varitimos and Mr. F. Griffin, for the Second Defendant/ Applicant/Respondent.

Mr. E. Anderson and Mr. Holingu, for the First Defendant/Applicant.

Mr. I.Molloy, Mr. I. R. Shepherd and Mr. L. Gavara-Nanu Jnr, for Plaintiff/Respondent/Applicant.

5 July, 2007

1. KANDAKASI J: By two separate notices of motions, the Independent Consumer and Competition Commission (“the Commission”) and Digicel (PNG) Limited are seeking a dismissal of these proceedings claiming that it is an abuse of the process of the Court or otherwise its frivolous, vexatious, an embarrassment and in breach of O.12 r.40 or O.8 r.27 of the Rules of the Court. They submit that is the case because (1) Telikom has issued more than one lot of proceedings over the same key issues; (2) only one lot of proceedings by originating summons seeking judicial review instead of by way of a writ seeking declaratory orders seeking to nullify a decision of a public authority would have been appropriate and (3) an Appeals Panel established under the Independent Consumer & Competition Commission Act, did determine the key issues raised in these proceedings. Hence, the Commission and Digicel argue that, Telikom is precluded from further litigation by operation of the principles of res judicata or alternative issue estoppel.

2. Telikom’s response is firstly that, the issuance of the three separate lots of proceedings, do not amount to an abuse of the process of the Court given the particular circumstances in which it issued the separate proceedings. Secondly, given the other relieves it is seeking in these proceedings, judicial review proceedings are inappropriate. Therefore, even though judicial review proceedings have been filed, Telikom has not pursued them. Thirdly, in relation to the res judicata and issue estoppel arguments, it submits that, the Appeals Panel has not determined the key issues and as such those issues have not reached either res judicata or issue estoppel. Accordingly, Telikom argues for a dismissal of the Commission and Digicel’s application and in its stead argues for a dismissal of Digicel’s defence and judgment in favour of Telikom for Digicel’s failure to give discovery. Further and in the alternative, Telikom by another motion is seeking a set of directions aimed at expediting this matter to trial in the event of the Court refusing either or both the Commission and Digicel’s application or that of Telikom itself.

3. The Commission and Digicel do not contest the alternative application by Telikom for directions. Hence, if we get to that level, it will only be a matter of formality. Digicel however, strongly argues against the application for a dismissal of its defence for its failure to give discovery. It maintains an argument it earlier put to Telikom that, giving any discovery is too premature and an unnecessary costs running exercise especially, when Telikom did foreshadow a further amendment to its pleadings which is yet to occur.

Relevant Issues

4. From these arguments, the following issues are present for the Court to determine:

(a) What is or are the key issues in these proceedings?

(b) Do the separate lots of proceedings issued by Telikom raise the same issues and therefore amount to an abuse of the process of the Court?

(c) Did the Appeals Panel determine the key issues in these proceedings?

(d) If the Appeals Panel determined the key issues, have those issues reached res judicata or issue estoppel so as to prevent Telikom from further litigating those issues?

(e) Subject to an answer to the foregoing issues, are these proceedings frivolous, vexatious and an embarrassment contrary to O. 12 r. 40 and or O 8 rule 27 of the Rules of the Court?

(f) Subject to a determination of all of the foregoing issues, is Digicel in default of giving discovery pursuant to the notice served on it?

(g) If Digicel is in default of giving discovery, is this an appropriate case to sign judgment against Digicel for its default in giving discovery?

Factual Context

5. The relevant facts giving rise to these issues are not much in contest between the parties. They are essentially set out in my earlier decision dismissing Telikom’s application for injunctive orders, the oral version of which I delivered on 18 May with the written version delivered on 22 June 2007.

6. As may be apparent from that decision, this case arises out of a decision the Government of Papua New Guinea (PNG) made to allow competition in the mobile telecommunications industry in the country. That was after many years of Telikom’s monopoly in the industry amongst others. Under its enabling legislation the Independent Consumer and Competition Commission Act 2002 (the ICCC Act), the Commission regulates the industry and can enter into regulatory contracts with parties other than Telikom.

7. On 27 March 2007, the Commission issued Digicel with a Public Mobile Licence. Clauses 3.1 and 3.2 of the Licence, state the commencement date for the Licence as 17 October 2007, or such earlier date, (not being a date prior to 1 May 2007) as shall be agreed between the Commission and Digicel. However, under an earlier regulatory contract between Telikom and the Commission, the Commission agreed not to issue any licence under the Telecommunications Act to any person, other than Telikom, before 16 October 2007. Clause 11 of the regulatory contract between Telikom and the Commission allowed for variations to that contract by written agreement between Telikom and the Commission. In pursuance of the NEC decision, the Commission informed Telikom by letter dated 11 January...