Popuna v Owa said a dismissed appeal is final. A year later Telikom asked the Court to make an exception where the appeal had never been argued. The answer was no.
Telikom (PNG) Ltd v Kila Rava and 26 other ex-employees [2018] PGSC 39; SC1694
Supreme Court, Waigani — Injia CJ, Hartshorn and Higgins JJ, 13 July 2018. SCR 84 of 2017.
What happened
In a 2011 restructure, Telikom made a number of employees redundant. The National Executive Council approved a tax exemption on their redundancy entitlements, but the payments were taxed anyway. The former employees sued, and on 6 March 2015 the National Court granted them relief against Telikom.
Telikom appealed (SCA 35 of 2015). On 1 September 2017 the appeal was dismissed for want of prosecution. Telikom then applied under section 155(2)(b) of the Constitution to review the same National Court decision.
What was argued
Telikom said the appeal had been dismissed without the substantive issues being considered; that exceptional circumstances existed because it was being made to pay double the tax; that it had an arguable case; that the interests of justice favoured a hearing; and that the Court’s review power is unfettered. The respondents relied on Popuna v Owa (2017) SC1564.
What the Court decided
It is an abuse of process for an applicant who has exhausted the right of appeal to seek review of the same decision between the same parties. Injia CJ agreed with Hartshorn J that this is an abuse “per se”, and that the point had been squarely decided in Popuna, where, as here, the appeal had been dismissed without a determination of the merits. The application was dismissed with costs.
Hartshorn J observed that if a substantial miscarriage of justice had occurred, the question was why Telikom had conducted its appeal so as to have it dismissed: it was “the author of its own misfortune”.
At paragraph 21 he held that abuse of process does not require two proceedings on foot at once, and that the kinds of circumstances in which an abuse may arise are not closed, reproducing Lord Diplock’s statement in Hunter v Chief Constable of the West Midlands [1982] AC 529 on a court’s inherent power to prevent misuse of its procedure.
Injia CJ raised, without deciding, whether a dismissal for want of prosecution or breach of directions, being a case-management decision, should be treated as binding on the merits of the appeal, and whether court policy should override an important point of law. He said the point had not been fully addressed in Popuna or by the parties, and remained for an appropriate case. Until then, Popuna stands.
Did it make new law?
Telikom applied and confirmed Popuna. On the open-ended nature of abuse of process, Hartshorn J expressly followed what he had said as a National Court judge in Nae Ltd v Curtain Bros Papua New Guinea Ltd (2015) N6124 and Ere v National Housing Corporation (2016) N6515. In Nae the National Court dismissed proceedings as an abuse where the relief pleaded in the statement of claim was not supported by the originating process; the Supreme Court had upheld that decision on appeal in 2015. The Hunter formulation was thereby adopted at the Supreme Court level.
Why it matters
There is no merits exception. An appellant cannot let an appeal lapse and then argue that, because nothing was decided, the review jurisdiction is open. The exercise of the right of appeal, however it ended, closes the door.
Abuse of process is a flexible doctrine. Courts will look at whether a proceeding is manifestly unfair to a party or would bring the administration of justice into disrepute, not only at whether it duplicates another proceeding.
What it does not decide
Telikom leaves untouched the three situations in which review is available: where the appeal period expired without an appeal, where appeal is prohibited or limited by law, and where there is no other way to reach the Supreme Court. It also leaves open Injia CJ’s question about case-management dismissals, which no later bench has yet taken up.
Recent cases applying it
- Kalgregos Electronics Ltd v Mamun Investments Ltd [2025] PGSC 138; SC2851 — Telikom among the “numerous judgments” that review after an appeal against the same decision is an abuse of process.
- Kowa v Namah [2024] PGSC 4; SC2533 — quoted paragraph 21 for the proposition that the categories of abuse are not closed.
- Maliso v Marape [2021] PGSC 119; SC2306 and Ahwong v Ane [2021] PGSC 43; SC2108 — leave to review dismissed as an abuse of process where the applicant had already appealed.
- National Airports Corporation v Simitap [2019] PGSC 122; SC1883 — applied Telikom and Popuna.
Sources
- Telikom (PNG) Ltd v Rava [2018] PGSC 39; SC1694 (Injia CJ, Hartshorn and Higgins JJ, 13 July 2018)
- Popuna v Owa [2017] PGSC 3; SC1564
- Nae Ltd v Curtain Bros Papua New Guinea Ltd [2015] PGNC 229; N6124; on appeal [2015] PGSC 87; SC1620; Ere v National Housing Corporation [2016] PGNC 311; N6515
- Constitution — s 155(2)(b)
- 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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