Review under section 155(2)(b) exists for people who have no appeal. This case is about people who had one and lost it.
Jacob Popuna, the Public Curator v Ken Owa [2017] PGSC 3; SC1564
Supreme Court, Waigani — Gavara-Nanu, Kariko and Kassman JJ, 22 February 2017. SCR 40 of 2016, application under section 155(2)(b) of the Constitution.
What happened
The Public Curator and the State lost a case in the National Court on 30 September 2015. They appealed in time, as SCM 34 of 2015. On 30 June 2016 a different bench of the Supreme Court dismissed the appeal for want of prosecution.
They then filed an application under section 155(2)(b) to review the same National Court decision. The application was argued on 13 December 2016 and the Court reserved. While conferring, the judges read the file and discovered the dismissed appeal, which neither side had properly drawn to their attention. The case was recalled and the parties were asked to address the point.
What was argued
Counsel confirmed that the appeal had been competent and had been dismissed. The question the Court framed for itself was whether a review was an abuse of process when a competent appeal on the same issues had already been disposed of by summary dismissal. Only if that was answered no could the merits be reached.
What the Court decided
1. A dismissal of an appeal by the Supreme Court is a final determination. It cannot be appealed against or reviewed, except by way of a “slip” application.
2. An application for review under section 155(2)(b) that raises the same grounds of grievance as an appeal previously dismissed by the Supreme Court is an abuse of the process of the Court.
Drawing on Application by Anderson Agiru (2002) SC686 and Application by Herman Joseph Leahy (2006) SC855, the Court restated the three situations in which section 155(2)(b) may be invoked: where a party has allowed a statutory right of appeal to expire; where a right of appeal is prohibited or limited by law; and where there is no other way of bringing the matter before the Supreme Court. A party whose appeal was heard and dismissed is in none of them.
The Court also recalled Kapi DCJ’s remark in Application by Wili Kili Goiya [1991] PNGLR 170 that a litigant who has exhausted the appeal procedure cannot go back and have “a second bite” through review.
Did it make new law?
Popuna built on earlier Supreme Court authority, including Wilson v Kuburam (2016) SC1489, rather than affirming any National Court decision. Its contribution was to state, in terms that have been quoted ever since, that a summary dismissal counts. An appellant whose appeal was thrown out for want of prosecution has still had the appeal “determined”, and cannot re-run the case under a different heading.
Why it matters
Prosecute your appeal. Letting an appeal be dismissed for delay is not a procedural setback that review can cure. It ends the matter.
Disclose the history. The Court found the earlier appeal on its own file. Parties and their lawyers who fail to bring a prior appeal to the Court’s attention risk both dismissal and costs.
Later decisions, citing Popuna, confirm that the Supreme Court may raise abuse of process itself under Order 13 rule 16 of the Supreme Court Rules, without waiting for a respondent’s objection.
What it does not decide
Popuna does not close review to a party who never appealed because the time ran out; that remains governed by Avia Aihi. It does not decide what a slip application can achieve, which is the subject of Trawen v Kama (2010) SC1063. And it concerns a dismissed appeal; an appeal that was withdrawn before hearing raises a different, though related, question.
Recent cases applying it
- Kalgregos Electronics Ltd v Mamun Investments Ltd [2025] PGSC 138; SC2851 — Hartshorn J listed Popuna among the “numerous judgments” holding that review after an appeal against the same decision is an abuse of process, and raised the point of the Court’s own motion.
- Kowa v Namah [2024] PGSC 4; SC2533 — Popuna cited as one of the cases specifying recognised instances of abuse of process.
- Maliso v Marape [2021] PGSC 119; SC2306 and Ahwong v Ane [2021] PGSC 43; SC2108 — both quoted paragraph 15 of Popuna for the three categories in which review may be invoked, and dismissed leave applications that fell outside them.
- National Airports Corporation v Simitap [2019] PGSC 122; SC1883 — applied Popuna and is now cited alongside it.
Sources
- Popuna v Owa [2017] PGSC 3; SC1564 (Gavara-Nanu, Kariko and Kassman JJ, 22 February 2017)
- Constitution — s 155(2)(a), (b)
- Supreme Court Rules 2012 — Order 5; Order 13 rule 16
- Application by Anderson Agiru [2002] PGSC 23; SC686; Application by Herman Joseph Leahy [2006] PGSC 21; SC855; Wilson v Kuburam [2016] PGSC 7; SC1489
- Kalgregos Electronics Ltd v Mamun Investments Ltd [2025] PGSC 138; SC2851; Kowa v Namah [2024] PGSC 4; SC2533; Maliso v Marape [2021] PGSC 119; SC2306; Ahwong v Ane [2021] PGSC 43; SC2108; National Airports Corporation v Simitap [2019] PGSC 122; SC1883
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