A senior lawyer lost a small debt claim by ignoring the court, missed the appeal deadline, and asked the Supreme Court to review the judgment instead. The Court used the case to say something lasting about abuse of process.
Michael Newall Wilson v Clement Kuburam trading as CK Valuers and Realtors [2016] PGSC 7; SC1489
Supreme Court, Waigani — Gavara-Nanu, Logan and Bona JJ, 11 March 2016. SC Review 30 of 2014.
What happened
Mr Kuburam, a valuer, sued Mr Wilson and a Mr Kambori for K35,280 for valuing a property said to belong to Mr Wilson. Mr Wilson denied liability. At the directions stage he and his lawyers ignored court orders, missed return dates, and did not answer the other side’s calls and emails. The National Court made self-executing orders, and when those were not met, entered judgment for the claim with interest.
Mr Wilson applied for leave to appeal, but out of time, and the application was dismissed as incompetent. He then applied for leave to review the National Court judgment under section 155(2)(b) of the Constitution.
What was argued
Mr Kuburam objected to competency. He said the Supreme Court, as the final court of appeal under section 155(2)(a), had already disposed of the same issues when it dismissed the leave application, so it had no jurisdiction to hear a review. Mr Wilson said the review jurisdiction is inherent and independent of the appeal that failed.
What the Court decided
1. The Court had jurisdiction to hear the application for leave to review. Application by Anderson Agiru (2002) SC686 and Application by Herman Leahy (2006) SC855 applied.
2. Leave should nonetheless be refused. The conduct of the applicant and his lawyers was the main reason the appeal was late, and no reasonable explanation was given. Application by Jeffery Balakau [1998] PNGLR 437 and Avia Aihi v The State [1981] PNGLR 81 referred to.
3. (Gavara-Nanu and Bona JJ; Logan J dissenting on this point.) The conduct was dilatory and contumelious and directly caused the late appeal. In those circumstances the review application was an abuse of process.
4. (Gavara-Nanu and Bona JJ.) Although abuse of process had not been pleaded as a ground of objection, the issue had been raised and fully argued, and the Court could decide it in the exercise of its inherent power to protect its processes.
5. (Logan J.) The conduct did not amount to abuse of process, but was so dilatory, particularly for a senior practitioner, that leave should be refused in any event.
Logan J made a point that has since been quoted independently of the result: an objection to competency must go to the jurisdiction of the Court to entertain the proceeding at all. Arguments about whether a discretion should be exercised in the applicant’s favour are not competency points.
Did it make new law?
The jurisdictional holding applied existing Supreme Court authority, and the Court referred to the National Court decision in The State v Peter Painke [1976] PNGLR 210 on abuse of process without needing to affirm it. The new ground was the majority’s conclusion that a party can disqualify itself from the review jurisdiction by its own conduct in the court below. That extended abuse of process beyond duplicated proceedings to the manner in which the earlier proceeding was conducted.
Why it matters
Review is not a remedy for one’s own default. Losing the right of appeal through neglect will count heavily against the exercise of the discretion, and may itself make the application abusive.
The Court can raise abuse of process itself. A respondent’s failure to plead it is no protection once the point has been aired.
Frame competency objections correctly. They are about jurisdiction, not merit. A misdirected objection wastes the hearing and can attract costs.
What it does not decide
Wilson does not hold that a review is always barred after a failed appeal; the majority tied abuse of process to the applicant’s contumelious conduct, and Logan J did not find abuse at all. The broader rule that review after a dismissed appeal on the same grounds is abusive was stated a year later in Popuna v Owa (2017) SC1564.
Recent cases applying it
- Kowa v Namah [2024] PGSC 4; SC2533 — Wilson listed among the judgments that specify recognised instances of abuse of process.
- Simon v The State [2022] PGSC 100; SC2301 — an applicant granted leave to review sentence only could not argue against conviction; doing so was an improper use of process, Wilson referred to.
- Motor Vehicles Insurance Ltd v Susana [2022] PGSC 8; SC2194 — Logan J repeated that an objection to competency must go to jurisdiction; whether leave should be granted is not a competency question.
- Igime v Motor Vehicle Insurance Ltd [2021] PGSC 37; SC2111 — a review filed without first obtaining leave was dismissed as an abuse of process, citing Wilson at paragraph 25.
Sources
- Wilson v Kuburam [2016] PGSC 7; SC1489 (Gavara-Nanu, Logan and Bona JJ, 11 March 2016)
- Constitution — s 155(2)(a), (b), (4)
- Application by Anderson Agiru [2002] PGSC 23; SC686; Application by Herman Joseph Leahy [2006] PGSC 21; SC855; Avia Aihi v The State [1981] PGSC 9; [1981] PNGLR 81
- Kowa v Namah [2024] PGSC 4; SC2533; Simon v The State [2022] PGSC 100; SC2301; Motor Vehicles Insurance Ltd v Susana [2022] PGSC 8; SC2194; Igime v Motor Vehicle Insurance Ltd [2021] PGSC 37; SC2111
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.