Jeffery Dean Kennedy v Adam Chin Cheah and Others

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Neutral Citation: SC2479
• Counsel: Mr. S. Dewe, for the Applicant,Mr. G. Purvey, for the First, Second and Third Respondents
• Citation: SC2479,
• Docket Number: SCREV 5 OF 2022
• Hearing Date: 19 May 2022,06 June 2022
• Court: Supreme Court

SC2479

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV 5 OF 2022

Between:

Jeffery Dean Kennedy

Applicant

v.

Adam Chin Cheah

First Respondent

and

Marilyn Espolong

Second Respondent

and

Alexis Samuel Alaistair Tam

Third Respondent

and

Julian Peter Bianko in his capacity as the Liaison Officer of the Australian Federal Police in Papua New Guinea

Fourth Respondent

Waigani: Hartshorn J

2022: 19^th May, 6^th June

SUPREME COURT — Practice and Procedure — Application for directions — whether substantive proceeding an abuse of process

Cases Cited:

SCR No 4 of 1990; Application by Wili Kili Goiya [1991] PNGLR 170

Anderson Agiru v. Electoral Commission (2002) SC687

Application by Herman Joseph Leahy (2006) SC855

Pokia v. Yallon (2014) SC1336

Jacob Popuna v. Ken Owa (2017) SC1564

Telikom (PNG) Ltd v. Kila Ravu and Ors (2018) SC1694

National Airports Corporation v. Simitap (2019) SC1883

Independent State of Papua New Guinea v. Hon. Belden Namah (2020) SC2037

Jim Tapako v. KS Akusa Ltd (2021) SC2159

John Darrel Ahwong and Ors v. Ala Ane and Ors (2021) SC2108

Counsel:

Mr. S. Dewe, for the Applicant

Mr. G. Purvey, for the First, Second and Third Respondents

Jema Lawyers: Lawyers for the Applicant

Young & Williams Lawyers: Lawyers for the First, Second and Third Respondents

6^th June 2022

1. Hartshorn J: The applicant filed an application in which he sought an order or direction that the application for leave to review filed, be deemed appropriate and proper.

2. During the course of the application being moved, counsel for the first, second and third respondents (respondents) raised a preliminary issue that this proceeding is an abuse of process.

3. I consider this issue first as a finding in favour of the respondents will be determinative of the substantive application for leave to review and the current interlocutory application therein.

Background

4. The applicant has filed this application for leave to review an interlocutory decision of the National Court (subject decision). The subject decision stayed the National Court proceeding pending the hearing and final determination of certain criminal proceedings against the applicant in Australia.

Abuse of process

5. The respondents submit that the applicant filed an appeal against the subject decision on 27^th June 2021. That appeal was dismissed on 24^th February 2022 for being incompetent. The applicant has therefore already exercised his primary right to appeal the subject decision. To seek to review the subject decision pursuant to s.155(2)(b) Constitution is an abuse of process, the respondents submit.

6. The applicant submits that he is entitled to review the subject decision pursuant to s. 155(2)(b) Constitution. This section of the Constitution is the final avenue to be relied upon if appeal rights have been exhausted. That the applicant filed an appeal before, does not preclude an application to review pursuant to s. 155(2)(b) Constitution. Further, there is no other recourse available to the applicant, the applicant submits.

Consideration

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)””

8. In this circumstance therefore, I am satisfied that this Court has the authority to proceed to hear whether the substantive...