Bishop Brothers Engineering Pty Ltd v Ross Bishop [1989] PGNC 2; N690 (17 March 1989)

Unreported National Court Decisions

N690

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 341 OF 1989
BETWEEN: BISHOP BROTHERS ENGINEERING PTY LIMITED
1ST PLAINTIFF
AND: BANK OF SOUTH PACIFIC LIMITED
2ND PLAINTIFF
AND: NAMBAWAN FINANCE LIMITED
3RD PLAINTIFF
AND: ROSS BISHOP
1ST DEFENDANT
AND: HUON INDUSTRIES PTY LIMITED
2ND DEFENDANT
AND: MAINTENANCE PLUMBING PTY LIMITED
3RD DEFENDANT

Waigani

Bredmeyer J
17 March 1989

CONTEMPT OF COURT - civil contempt of court - defendant does not need to be present

Cases Cited:

Churchman v Shop Stewards’ Committee (1972) 3 All E.R. 603 followed

Philip Soon Kiat Yip -v- Tin Siew Tan & Others (unreported Supreme Court judgment S.C. 340 of 3 July 1987) followed.

Counsel

R. Gunson: for the plaintiff.

L. Henao: for the defendant.

17 March 1989

BREDMEYER J: This iapplication for cont contempt of Court. Indeed I think that the statement of charge amounts to two contempts of Court, on the 10th and 11th of March. It is civil contempt of court disobeying o of a court, not criminal cnal contempt.

The salient facts are as follows. On 9 March 1989 an interim injunction was granted to the plaintiff ex parte by Woods, J. The order itself allowed for substituted service on the defendant’s lawyers and substituted service was effected by fax on Henao Cunningham on the 10th March, the next day. Later on the same day the 10 March, a Friday, Mr Wayne Bishop for the plaintiff went with several employees to serve the order on Mr Ross Bishop the first defendant who is his brother and is also a director of the other defendant companies. During the attempt to serve or execute the order Mr Wayne Bishop was assaulted. He had earlier on asked for police assistance with a letter from his lawyer asking the police to be present in case there was a breach of peace and unfortunately the police declined to attend.

On Saturday the 11th March, the next day, Mr Wayne Bishop again went to the premises of the defendant with two policemen with a copy of the order and again was denied access by Mr Ross Bishop. At that time there was no assault. On 14 March 1989 the plaintiff gave Notice of Motion for contempt of court and on the same day the charge of contempt was prepared and filed in the court. Later on that same afternoon these papers were served on the lawyers for the defendants by fax, again on Henao Cunningham, and again that substituted service was permitted by the terms of the order itself. On receipt of that order on the 14th March Mr Henao gave it to his client who had the opportunity to read it overnight and give some instructions as to how to defend it. Mr Ross Bishop left early on the next day, the 15th, on a business trip Lae/Moresby/Singapore which was a pre-arranged trip and is due back in Port Moresby on Sunday the 19th March.

The interim injunction was returnable to this court on 15 March 1989 and on that occasion the order was extended by consent by Mr Justice Kapi until the 31st March. Mr Wayne Bishop has deposed to the events which happened on the 10th and 11th of March in an affidavit, and Mr Ross Bishop and his accountant, Mr Leslie Manickam, have deposed to their version of those events.

Mr Henao strenuously opposes this application for contempt today on the following grounds:

He seeks to challenge the interim injunction on legal grounds. He says that the interim injunction was improperly granted and therefore his client has good reason to oppose its execution. I think the answer to that argument lies in a decision by Mr Justice Hinchliffe sitting as a single judge in the Supreme Court in the case of Philip Soon Kiat Yip v Tin Siew Tan and Others (unreported judgment SC340 of 3 July 1987). That case decided that it is the obligation of every person against whom an order is made to obey that order until it is discharged, and that extends to cases where the person affected by the order believes it to be irregular or void. If the person affected does not obey it, he is guilty of contempt of court.

The second matter Mr Henao raises is that this is a criminal proceeding, or it is very strongly akin to a criminal proceeding, and is only fair that his client should be present to answer the charges and to give evidence and, if needs be, to be heard on allocutus. Some support for that view might be found in s 37(2) and sub-section (4) of the Constitution dealing with the protection of the law. It refers to the offence commonly known as contempt of court and (4) says that a person charged with an offence shall be presumed innocent and shall be given adequate time and facilities to prepare his defence etc. and sub-section (4)(f) says that he shall be afforded facilities to examine in person or by counsel witnesses called by the prosecution and to testify before the court on his own behalf on the same conditions of those applying to witnesses called by the the prosecution. Despite the overriding power of the Constitution I do not think that relates to this type of civil contempt and I propose to ignore it. I think the power for me to deal with a case of civil contempt, without the defendant being present, comes from the common law and I rely on the case of Churchman v Shop Stewards’ Committee (1972) 3 All E.R. 603 at 608 where Lord Denning for the Court of Appeal discussing civil contempt and the contemnor said:

“He must be given notice of any new charge and the opportunity of meeting it. Even if he does not appear to answer it, it must be proved with all the sufficiency that we habitually require before depriving a person of his liberty.”

That phrase “if he does not appear to answer it” implies that he need not appear.

The third objection is that Mr Henao has requested that Mr Wayne Bishop be present for cross examination as to the events which happened on the 10th and 11th because obviously his client has a different version and he submits that these matters should be tested by cross examination. I think the answer to that argument is that there are sufficient admissions in the defendant’s affidavit and that of his witness to justify me hearing this case in his absence.

A fourth objection, as I understand it, is that his client should be present to give any allocutus. That is a requirement in the Criminal Code and as far as I can see it is not relevant to this common law offence of contempt.

The standard of proof is beyond reasonable doubt and on reading the three affidavits as to the factual material I am satisfied on those affidavits and in particular on the admissions made by the defendant that he is guilty of contempt of court on Saturday 11 March 1989 when he refused entry to the premises to the first defendant and his employees. I consider that there is a second charge of contempt here relating to the events of Friday 10th March and I consider it appropriate there that the parties should be present and I propose to adjourn the hearing of that charge of contempt until 31st March. So I found Mr Ross Bishop guilty of contempt of court on Saturday 11 March and I now propose to hear Mr Henao before I decide what would be an appropriate punishment.

Having heard Mr Heano on the matter of punishment I impose the following:

1. A fine 0f K5 d inultfahreethree months imprisonment with hard labour. Seven days to pay the fine to be paid to the National Court.

2. &#1#1160hsisonmisonmith habh habour, fur, fully slly suspenuspended pded providrovided thed the prisoner keeps the peace and is of good behaviour for one year.

awyerthe plaintiffs: Blake Dawson Waldron.

Lawy>Lawyers fers for the defendants: Henao, Cunningham & Co.