Telikom PNG Limited v Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906

• Jurisdiction: Papua New Guinea
• Judge: Injia, DCJ, Kirriwom J & Cannings J.
• Judgment Date: 28 March 2008
• Court: Supreme Court
• Citation: (2008) SC906
• Docket Number: SCA NO. 64 OF 2007
• Year: 2008
• Judgement Number: SC906

Full Title: SCA NO. 64 OF 2007; Telikom PNG Limited v Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906

Supreme Court: Injia, DCJ, Kirriwom J & Cannings J.

Judgment Delivered: 28 March 2008

SC 906

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 64 OF 2007

BETWEEN:

TELIKOM PNG LIMITED

Appellant

AND

INDEPENDENT CONSUMER AND COMPETITION COMMISSION

First Respondent

AND

DIGICEL (PNG) LIMITED

SecondRespondent

Waigani: Injia, DCJ, Kirriwom & Cannings, JJ.

2007: 1 & 2 November

2008: 28 March

PRACTICE AND PROCEDURE – abuse of process – whether multiplicity of proceedings amounts to abuse of process – discretion as to consequences of abuse.

JUDICIAL REVIEW – mode of commencement – circumstances in which Order 16, National Court Rules, must be used.

COURTS AND TRIBUNALS – res judicata – whether applicable if a previous decision on issues before a court has been made by an administrative tribunal – whether tribunal had determined merits of the issues before the court.

CIVIL PRACTICE AND PROCEDURE – Whether res judicata is a defence to an action which should be pleaded and tried.

The National Court dismissed proceedings brought by Telikom, seeking injunctions and declarations regarding the actions of ICCC and Digicel, on three grounds: (a) abuse of process (as Telikom had started a multiplicity of proceedings raising the same issues); (b) improper commencement (as Telikom did not approach the court under Order 16 of the National Court Rules); and (c) res judicata (as the merits of the issues raised had already been determined by a statutory tribunal). Telikom appealed and argued that each of the three grounds on which the National Court dismissed the proceedings involved errors of law.

Held:

(1) A party commencing a multiplicity of legal proceedings concerning the same issues will commit an abuse of process unless very good reasons are shown to justify it.

(2) A party wishing to challenge the decision of a governmental body or public authority must use Order 16 of the National Court Rules if orders in the nature of prerogative writs are sought. If only an injunction or declaration is sought, the plaintiff has a choice: Order 4 or Order 16 can be used.

(3) The doctrine of res judicata operates when the issues between the parties have already been finally determined by a court or tribunal having lawful authority to do so.

(4) Kirriwom & Cannings JJ: The National Court had correctly decided that Telikom was guilty of an abuse of process and that res judicata applied. The grounds of appeal concerning those issues were accordingly dismissed.

(5) Injia DCJ (dissenting): The doctrine of res judicata is a substantive and complete Defence to an action which must be pleaded and tried.

(6) Injia, DCJ, Kirriwom & Cannings JJ : The National Court erred in finding that Telikom was required to commence proceedings under Order 16 (as Telikom only sought declarations and injunctions). The ground of appeal concerning that issue was upheld.

(7) Kirriwom & Cannings JJ: As there were good grounds for dismissing the National Court proceedings the appeal to the Supreme Court was dismissed.

(8) Injia DCJ: (dissenting): The appeal should be allowed, the decision of the National Court should be quashed and the proceedings in WS No. 1599 of 2006 should be re-instated.

Cases cited:

Papua New Guinea Cases

Anderson Agiru v Electoral Commission and the State(2002) SC687

Birch v The State[1979] PNGLR 75

Charles Ombusu v The State [1996] PNGLR 335

Curtain Brothers (PNG ) Ltd v UPNG (2005) SC 788

Fly River Provincial Government v Pioneer Health Services Limited(2003) SC705

Gene v Hamidian-Rad[1999] PNGLR 444

National Executive Council and Luke Lucas v Public Employees Association[1993] PNGLR 264

NEC & Lucas v Public Employees Association of PNG [1993] PNGLR 264

NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135

Niugini Mining Ltd v Joe Bumbandy (2005) SC 804

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

PNG Forest Products Ltd v The State [1992] PNGLR 85

Papua Club Inc v Nusaum Holdings Ltd(2005) SC812

P.O.S.F. V Silas Imanakuan (2000) SC 677

Rolf Schubert v The State[1979] PNGLR 66

Telikom PNG Ltd v ICCC and Digicel (PNG) Ltd, WS No 1599 of 2006, 05.07.07

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

Titi Christian v Rabbie Namaliu (1996) Unnumbered and unpublished judgment in OS/SC No. 2 of 1995.

Van Der Kreek v Van Der Kreek[1979] PNGLR 185

Overseas Cases

Dianne McGrath Fingleton v The Queen[2005] HCA 34

House v King (1936) CLR 499

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481

APPEAL

This was an appeal against dismissal by the National Court of proceedings commenced in the National Court.

Counsel:

R J Webb SC, I Molloy and L Gavara-Nanu, for the Appellant

E Andersen and G Geroro, for theFirst Respondent

N M Cooke QC, M M Varitimos and F Griffin, for the Second Respondent

28 March, 2008

1.INJIA, DCJ: The background of this appeal and the circumstances leading to the institution of various proceedings and the conduct of proceedings in the National Court, the grounds of appeal and the issues raised and argued in this appeal are set out in detail in the joint judgment of the majority which I adopt.

2. At the material time, Telikom was the only public entity licensed under the Telecommunication Act 1996 to operate mobile telecommunication services in Papua New Guinea. As such, Telikom enjoyed monopoly in the mobile telephone industry. On 27 March 2007, ICCC issued to Digicel a mobile telephone license, under Part VI of the Telecommunications Act, to operate a public mobile telephone network throughout Papua New Guinea. ICCC’s action introduced competition in the mobile telephone industry. ICCC’s action was purportedly taken under an agreement which ICCC claimed was reached between itself and Telikom to vary the relevant terms of a regulatory contract entered into between them. Telikom disputed such an agreement was reached to vary the terms of the regulatory contract.

3. The relationship between Telikom and ICCC is governed by a regulatory contract entered into between them on 16 July 2002 under s 34-36 of the ICCC Act 2002. The regulatory contract is provided for in the ICCCAct and amendments made to the Telecommunications Act, which made Telikom a regulatory industry and came under the functions of ICCC. Clause 10 (a) of the regulatory contract provided that ICCC agreed not to issue any public mobile license to any person other than Telikom before 17 October 2007. Clause 11.1 provided for variation of a term of this contract by agreement between ICCC and Telikom. Certain actions taken including exchange of correspondences between ICCC and Telikom purportedly to vary clause 10 (a) to bring forward Telikom’s monopoly date from 17 October 2007 to 31 March 2006 became the subject of bitter contention between them. Several questions arose including whether there was a valid agreement reached to effect such variation. Questions concerning validity of the regulatory contract may have arisen but it was not raised and litigated in the Court below and it is not before us.

4. There is no provision in the regulatory contract for the resolution of disputes arising under that contract. Such provisions are found in Part V of ICCC Act and Part XIX, Div. 1A of Telecommunication Act. Section 182A of the Telecommunication Act and Sections 47 of the ICCC Act both provide for the establishment of an “Appeals Panel” constituted by a panel of Experts which has power to decide such disputes. Upon application made by a regulated industry, the Appeals Panel conducts a review of the decision of ICCC and makes its own decision on the matter. Those provisions however do not preclude Court actions which may be commenced by a regulated entity in respect of the same decision. This is apparent from s 43 (1) of ICCC Act and s 182A (1) of Telecommunications Act, both of which provide that a regulated entity “may apply” to the Appeals Panel.

5. On 31 October 2006, ICCC commenced Court proceedings first in OS No. 811 of 2006 seeking declaratory relief. On 3 November 2006, Telikom responded by filing proceedings in WS No. 1599 of 2006. On 4 December 2006, the hearing of the proceedings in WS 1599 of 2006 and OS 811 of 2006 were consolidated by order of the Court. On 22 December 2006, Telikom filed judicial review proceedings in the National Court in OS No. 927 of 2006 (JR). Whilst those Court proceedings were pending determination, on 26 April 2006, Telikom applied to the Appeals Panel under s 182A of the Telecommunications Act seeking certain relief. The Appeals Panel was constituted by a one Mr R F Shrogen. On 24 May 2007, Mr Shrogen handed down his decision. He dismissed Telikom’s application and confirmed ICCC’s decision. Consequently, Digicel moved a motion in WS 1599 of 2006 seeking dismissal of the proceedings on various procedural grounds namely, Telikom abused Court process in commencing multiple proceedings over the same matter, Telikom failed to employ appropriate mode of commencement of proceedings and res judicata. On 5 August 2007, the Court granted the orders sought and dismissed the proceedings. Telikom appeals from that decision.

6. It is not contested that the Court did not determine the merits of Telikom’s case in WS 1599 of 2006. Telikom’s claim was substantive and of great commercial significance to the telecommunication...