When Digicel entered the mobile phone market, Telikom fought it in the regulator, the appeals panel and the National Court, more than once. The Supreme Court's response set the rules on repeat litigation.
Telikom PNG Ltd v Independent Consumer and Competition Commission and Digicel (PNG) Ltd [2008] PGSC 5; SC906; [2008] PNGLR 303
Supreme Court, Waigani — Injia DCJ, Kirriwom and Cannings JJ, 28 March 2008. SCA 64 of 2007.
What happened
Telikom challenged the ICCC’s decisions permitting Digicel to operate. Having already raised the same issues before a statutory appeals tribunal and in other National Court proceedings, it commenced a further action seeking injunctions and declarations. The National Court dismissed it on three grounds: abuse of process through multiplicity of proceedings; improper commencement, because Telikom had not used Order 16; and res judicata, because the tribunal had determined the merits. Telikom appealed on all three.
What was argued
Telikom argued that each proceeding had a different focus, that Order 16 is not compulsory where no prerogative writ is sought, and that a tribunal decision cannot found res judicata, which in any event must be pleaded and tried as a defence. The respondents said the issues were the same in every forum and had been finally decided.
What the Court decided
1. A party commencing a multiplicity of proceedings concerning the same issues commits an abuse of process unless very good reasons are shown to justify it.
2. A party challenging a decision of a governmental body must use Order 16 if orders in the nature of prerogative writs are sought. Where only an injunction or declaration is sought, the plaintiff may choose Order 4 or Order 16. On this ground all three judges held the National Court had erred.
3. Res judicata operates when the issues between the parties have been finally determined by a court or tribunal having lawful authority to do so.
4. (Kirriwom and Cannings JJ.) The National Court correctly found abuse of process and res judicata; since there were good grounds for dismissal, the appeal was dismissed.
5. (Injia DCJ, dissenting.) Res judicata is a substantive and complete defence which must be pleaded and tried; the appeal should be allowed and the proceedings reinstated.
Did it make new law?
The majority affirmed the National Court on abuse and res judicata and reversed it on the mode of commencement. The decision is the leading Papua New Guinea authority on multiplicity of proceedings, and its clarification that Order 16 is mandatory only for prerogative relief resolved a recurring procedural dispute. The dissent on pleading res judicata remains a minority view but is still cited.
Why it matters
Choose one forum and finish there. A litigant dissatisfied with a tribunal’s decision should appeal or seek review of it, not relitigate the same question in a fresh action.
Pick the right originating process. Certiorari, mandamus and prohibition require Order 16 and leave. Pure declarations and injunctions do not, though the leave filter is lost by using Order 4.
Res judicata can be raised summarily on the majority view, though pleading it remains prudent.
Injia DCJ’s point was procedural rather than substantive. He accepted that a party cannot relitigate what has been finally decided, but considered that res judicata is a defence to be raised in a pleading and tested on evidence at trial, not a ground on which a claim can be dismissed at the threshold. The majority took the view that where the earlier determination is a matter of record, the Court can act on it summarily. National Court judges continue to cite both views, and a defendant who intends to rely on res judicata is well advised to plead it and to apply for summary dismissal.
What it does not decide
Telikom does not close the categories of abuse of process, as later decisions such as Telikom v Rava (2018) SC1694 make clear. Nor does it decide whether res judicata applies to interlocutory determinations, or to decisions of bodies without power to make final determinations.
Recent cases applying it
- Numu v Sia [2023] PGSC 157; SC2509 — Hartshorn J relied on paragraphs 101 and 102 of the majority judgment in refusing leave to review the dismissal of an election petition as an abuse of process.
- Ipara v Porgera Landowners Association [2020] PGSC 61; SC1969 — Telikom cited with Bean v Bean and Curtain Bros on appellate review of a trial judge’s discretion.
- Mamtirin v Donnelly [2019] PGSC 125; SC1889 — Telikom considered in an appeal by retrenched Telikom employees.
Sources
- Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (Injia DCJ, Kirriwom and Cannings JJ, 28 March 2008)
- National Court Rules 1983 — Orders 4, 16; Order 12 rule 40
- Telikom (PNG) Ltd v Rava [2018] PGSC 39; SC1694
- Numu v Sia [2023] PGSC 157; SC2509; Ipara v Porgera Landowners Association [2020] PGSC 61; SC1969; Mamtirin v Donnelly [2019] PGSC 125; SC1889
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.