Every court has an inherent power to protect its own process from misuse. In the Supreme Court that power sits alongside section 155(4) of the Constitution and the summary determination procedure, and it is invoked most often against litigants who will not accept that a dispute has ended.
What the phrase means
The Supreme Court held that 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; that 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; and, by majority, that the National Court had correctly found Telikom guilty of an abuse of process in bringing fresh proceedings about matters already litigated: Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906.
| Category | Example |
|---|---|
| Multiplicity | An appeal and a section 155(2)(b) review against the same judgment; two appeals from the same order; a fresh National Court action while the appeal is pending |
| Relitigation | A second application on the same material after the first was refused; an appeal that reargues a point finally decided in an earlier appeal between the parties |
| Collateral purpose | An appeal filed to obtain a stay and delay enforcement, with no intention of prosecuting it; a review filed to keep a public office pending its outcome |
| Circumvention | A review under s 155(2)(b) where an appeal lay and was not taken, without explanation; an application to a second single Judge after the first refused, instead of renewal before the full Court under s 10(2) of the Act |
| Wrong forum or process | Asking the Supreme Court to decide at first instance what the National Court should decide; raising in the Supreme Court a complaint that should have been made to the trial Judge |
| Oppression | Repeated applications, adjournments or amendments designed to exhaust the other side |
Raise it promptly, and in the right court
In Wartoto v The State (2015) SC1411 the Supreme Court refused to use section 155(4) to stop a criminal prosecution before trial, holding that the National Court is duty-bound to conduct the trial fairly and has the safeguards to do so, and that any complaint of irregularity or abuse of process must be raised promptly before the trial Judge. The principle carries over: an abuse in the National Court is for the National Court to correct first, and an abuse of the Supreme Court’s process is raised there at the first opportunity, by objection to competency in Form 9 or by application under Order 11 Rule 25, not at the hearing.
How the Court deals with it
Constitution section 155(4): the Supreme Court has an inherent power to make, in such circumstances as seem proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. Order 13 Rule 16: the Court may summarily determine a matter on application, on referral by a Judge or the Registrar, or on its own initiative. Section 11 of the Act: summary dismissal of a frivolous or vexatious appeal referred by the Registrar. Order 12 Rules 11 and 30: costs against the party and, where responsible, the lawyer.
The usual order is dismissal of the abusive proceeding with costs, sometimes on an indemnity basis. Where two proceedings are on foot the Court requires the party to elect which to pursue and dismisses the other. A stay obtained through an abusive appeal is discharged. See frivolous and vexatious appeals and summary determination.
What is not an abuse
Filing an application for leave and a conditional notice of appeal together is not multiplicity; Order 7 Rule 11 deems the notice given when leave is granted. Pursuing an appeal against the substantive judgment and a separate application about costs is not, because the costs order needs leave under section 14(3)(c). Filing a review after an appeal has been dismissed as incompetent may be permitted where the incompetency was technical and the merits were never heard, though leave is needed and delay counts against it. And a losing party is entitled to one appeal as of right; exercising it, however weak, is not an abuse. See applying for leave and appealing at the same time and filing two proceedings about the same judgment.
Avoiding the label
Choose the correct process before filing: appeal under Order 7 or Order 10 if an appeal lies, review under Order 5 only if it does not. Put every ground in one notice. If circumstances change, amend rather than file afresh. Renew a refused application before the full Court, not before another Judge. And if a proceeding has lost its purpose, discontinue it under Order 7 Rule 20 or withdraw it under Order 11 Rule 29.
Sources
- Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906
- Wartoto v The State (2015) SC1411
- Constitution — s 155(2)(b), (4)
- Supreme Court Act (Chapter 37) — ss 10, 11, 14
- Supreme Court Rules 2012 — O 5; O 7 rr 11, 15–19, 20; O 11 rr 25, 29; O 12 rr 11, 30; O 13 r 16; Form 9
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. 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.