Bishop Brothers Engineering Pty Ltd v Ross Bishop [1989] PGNC 4; N705 (2 May 1989)

Unreported National Court Decisions

N705

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. NO. 341 OF 1989
BETWEEN
BISHOP BROTHERS ENGINEERING PTY LTD
FIRST PLAINTIFF
AND
NAMBAWAN FINANCE LIMITED
SECOND PLAINTIFF
AND
ROSS BISHOP
FIRST DEFENDANT
AND
HUON INDUSTRIES PTY LTD
SECOND DEFENDANT
AND
MAINTENANCE PLUMBING PTY LTD
THIRD DEFENDANT
NO. 2

Waigani

Bredmeyer J
17 March 1989
1-2 May 1989

CONTEMPT OF COURT - civil contempt of court.

DISOBEDIENCE OF A COURT ORDER - 1st defendant assaulting the 1st plaintiff attempting to execute a court order - gaol term justified - six weeks imprisonment with hard labour - 2nd and 3rd defendants fined K2,500 each.

Counsel

R. Gunson, for the plaintiffs.

L. Henao, for the defendants.

Cur. adv. vult.

2 May 1989

BREDMEYER J: Thishe second contempt actt action against the defendants. In the first action I convicted the first defendant of contempt of court on 11 March 1989 and sentenced him to six months imprisonment with hard labour fully suspended provided he keeps the peace and is of good behaviour for one year. I also fined him K500. The reasons for that decision and punishment are set out in unpublished judgment N690 of 17 March 1989.

I am now dealing with an application to punish the three defendants for contempt of court on 10 March 1989. The first defendant is an individual and may be punished by committal to prison or by a fine. He is also a director and principal shareholder of the other two defendants and here the application is to punish those companies for contempt by sequestration or fine. The relevant facts are as follows: On 9 March 1989 the plaintiffs obtained an interim injunction ex parte from Woods J. against the three defendants. The order was extracted on the morning of 10th March. That order gave to the plaintiffs access and possession of certain goods listed in the Writ of Summons situated on the premises of the defendants at Josey Street Lae. It restrained the defendants and their servants and agents from in any way interfering with the plaintiff’s access, possession and use of those goods. Para 3 provided that the order was to be served together with the notice of motion and supporting affidavits by facsimile on the defendant’s lawyers on or before 13 March 1989 or personally. That order and the supporting documents was faxed through to the office of Henao Cunningham & Co., the defendant’s lawyers in Lae at 1 p.m. on the afternoon of the 10th. At about 1.30 p.m. on that day those papers were placed on the desk of a lawyer in that firm Mrs. Lata Milner. She immediately telephoned Mr. Ross Bishop but he was out and she could not contact him.

At about 2 p.m. Mr. Wayne Bishop who was the general manager, company secretary and a shareholder of the first plaintiff, Mr. Richard Green one of his senior employees, and about twelve national employees went to the premises of the defendants. I should add that Huon Industries Pty Ltd and Maintenance Plumbing Pty Ltd have their registered office and operate out of the same premises in Josey Street Lae and that Mr. Ross Bishop is the general manager of those companies and is 75% shareholder of those companies. Wayne Bishop and his party entered the office. Ross Bishop was out at the time and Wayne left a copy of the order with the Sri Lankan accountant, Leslie Manickam. He told him that it was his intention to carry out the terms of the order. He then went through the office and into the machine shop whereupon he was assaulted by Ross Bishop and his employees.

As there is a conflict of evidence as to the nature and extent of this assault it is necessary for me to say something about the evidence which I heard. On the prosecution side I have affidavit and sworn evidence from Wayne Bishop and affidavit and sworn evidence from Richard Green. On the defendants’ side I have read two affidavits from Ross Bishop and heard his sworn evidence. I have also read an affidavit and heard sworn evidence from Leslie Manickam. In terms of eye-witness testimony, Manickam was not an eye witness to the assault so it is two witnesses, Wayne Bishop and Mr. Green, against Ross Bishop. Annexed to Mr. Wayne Bishop’s affidavit is a hand written statement signed by three of his employees giving their version of the assault. I did not notice this when the affidavit was first tendered and read and I have problems with its admissibility. This court normally only hears sworn oral evidence or affidavit evidence and this is neither. It is a combined statement of three men and, obviously, three separate statements would tell a more accurate story. It was not objected to and therefore I will not reject it completely but I do not give it the same weight as sworn oral and affidavit evidence.

I was impressed by the evidence of Wayne Bishop and Richard Green and I was less impressed with the evidence of Ross Bishop. I was impressed by the evidence of Mr. Green. He is an independent witness. I know that he works for the plaintiff, but he was not emotionally involved as were the two brothers. He chose his words carefully, he was not given to exaggeration and I consider him a witness of truth. I consider that the evidence of those two for the prosecution side far outweighs that of Mr. Ross Bishop and I make the following findings beyond reasonable doubt.

Wayne Bishop came into the office of the two defendant companies about 2 p.m. and he handed a copy of the court order to Leslie Manickam and explained its contents and that he and his party would be proceeding to take possession of the equipment mentioned in the order. Ross Bishop at the time was not there. Wayne Bishop and his party then entered into the workshop area. At that time Ross Bishop returned to the premises having been at the bank. He saw some of the plaintiff’s workers setting up some oxy-welding equipment and he assumed that they were there to cut through the front door which he had welded up a few days before. He also saw Bishop Brothers employees putting machinery into baskets so it could be removed. He walked up to his brother Wayne and said “What are you doing here?” Wayne Bishop showed him a copy of the court order which he had in his hand and commenced to read it to him. He said words to this effect “I have a court order here, and I believe it is valid” and he was attempting to say more and to read the order to him when he was punched in the face by Ross Bishop. Prior to this assault Ross Bishop had walked through his workshop and had signalled with a gathering motion of both arms for his workers to come and assist him. Ross Bishop then got a head lock on his brother and continued to punch him in the head and body with his free hand. At that time six or seven of Ross Bishop’s employees came to his aid and proceeded to kick, punch and hit Wayne around the head and the body. Some of the blows were struck with iron bars. Ross called out for his employees to assault Wayne and he said words to the effect “You bastard, I will kill you, you fucking bastard”. At that time a large number of Ross Bishop’s employees some armed with iron bars were trying to get into the area and Wayne Bishop’s men could do nothing to assist so they retreated from the area.

Following that Wayne Bishop was driven to the Police Station and from there to the hospital. No medical report of his injuries at that time has been produced to me but photos have and they show that he was severely cut and bruised about the face. Three days later a doctor in Dr. Jacobi’s clinic noticed that he had marked bruising around both eyes. He had bruising and abrasions of the nose, bruisings on both sides of the upper skull and jaw, bruising of the left upper arm and left side of the chest, a puncture wound on the upper lip, and abrasions inside the lower lip. Dr. Jacobi referred him to a doctor to Australia for a further examination and for a brain scan and he was seen by that doctor on the 14th March. The doctor there noted periorbital bruising and mild swelling in the left temple region; the C.N.S. examination was normal with no localising signs. There had been haematuria twice since the injury but this had settled down and the first plaintiff had no other injuries. A scan of the head was carried out and this showed no abnormality. The doctor advised him to rest as much as possible and said that the symptoms should slowly subside over a month or two.

The procedural law of contempt is found in Order 14 Division 6 of the National Court Rules and the rules which are of special application to this case are Rules 41-50. We are here concerned with civil contempt of court in particular disobedience to an order of the court. As required by Order 14 Rule 43 Mr. Gunson has prepared a statement of charge. At the outset of the hearing of this motion to punish for contempt, Mr. Gunson said that he would be leading evidence of the assault on 10th March and also of further acts of contempt in that on later days, when the plaintiff sent his staff to take possession of the equipment mentioned in the order of Woods J., the defendant continually frustrated the plaintiff in his actions. Evidence was led on these matters. For example Mr. Green gave evidence that on 17th March he and a party went to the defendant’s premises with a large crane to execute the order. They commenced to shift machinery around with the crane where Mr. Ross Bishop said to the crane driver “Show me your work permit? Have you a licence to drive this crane?” This action frustrated the execution of the order and Green and the crane driver retreated to the Labour Department to resolve the problem. Before doing so, Ross Bishop took the key out of the crane and put it in the top pocket of a constable and said, “This crane driver is not licenced to drive this crane and if there is any injury to my men or equipment I do not want to be held responsible.” Later on that day Mr. Green said that there was a ten-ton roller to be removed and the defendant had put some steel plate in front of it blocking access to the machine. They could not get the crane or a forklift in that area to remove the steel plate to get at the roller. Mr. Green asked Ross Bishop if he could use the overhead crane to shift the steel and the latter said he did not have the time or the manpower available to do that as “we are very busy”. He also said that you can shift it later. Although I consider these acts may well amount to further acts of contempt - and I thought Mr. Green a very credible and truthful witness - these acts are not itemized in the statement of the charge. Neither was any attempt made at the beginning, during, or at the end of the hearing to amend the statement of charge. I suspect that an amendment is necessary because, although this is a case of civil contempt, it is necessary to give the defendant the benefits and safeguards of the criminal law. I therefore consider that an amendment, as is done in criminal trial upon indictment under s. 535 of the Criminal Code, should have been made. I therefore propose to ignore that evidence of later acts of contempt.

With regard to the assault on the 10th March Mr. Henao argued that his client had not been properly notified of the order. He said the crucial issue was whether his client had been properly notified of the order and whether the order was being read out to his client at the time of the assault. Volume 12 Atkin’s Court Forms (2nd ed.), p. 109 states:

“No order for attachment or committal will be made for disobedience to an order unless the disobedience is wilful. It is therefore a defence to show that the respondent had no knowledge of the order (b) or that the breach was accidental (c).”

The letters (b) and (c) in that quote refer to footnotes. Footnote (b) states “i.e. in cases where actual service is not required: see Halsbury’s Laws (3rd ed), p. 36.” That reference to Halsbury deals with evidence and procedure for contempt of court. Omitting footnotes the relevant passage on p. 36 is as follows:

para 64. Service of order. Personal service of the order or process to be enforced is essential except in the following cases:

(1) &#16ohibitory orders the drhe drawing up of which is not completed;

(2) ټ orders ders embodying an undertaking to do an act by a day named;

(3) &&#160ers do anso answer iner interrogatories or fscove inspn of documents;

(4) &160; ҈ where an order for for for substsubstituted service has been made; and

5)҈& &160; #16er whhe the respondent dent has evaded service of the order.

In this case substitute serivce was allowed and effected bu any , I am satisfied beyond reasonable doubt that, although Mr. Ross Bishop had no prno prior nior notice of the order of 10th March, Wayne had the order in his hands and said a few words of explanation about it as I have found above. I do not believe Ross Bishop’s evidence that he struck him before he had read out any part of the order. Thus Wayne Bishop was in the act of serving the order upon him when he was assaulted. I consider that the defendant thus had knowledge of the order, or, if he did not have knowledge of its contents, it was because he chose to assault his brother at the very moment that his brother was serving the order upon him and explaining it to him. I cannot see how Mr. Ross Bishop can claim that he had no knowledge of the order when it was his own actions which deprived him of that knowledge.

I am satisfied on the whole of the evidence and beyond reasonable doubt that Mr. Ross Bishop is guilty of contempt of court on the 10th March. The position is even stronger in relation to his two companies. A copy of the order had been served at the registered office of both companies some minutes prior to the assault and I consider that those companies are guilty of contempt of court in that they did not obey the order on the 10th March. Instead their general manager and director interfered with and prevented the implementation of that order on that day. I therefore find each company also guilty of contempt of court.

ON SENTENCE

The first defendant is aged 44 and lives in Lae. He is at present general manager and 75% shareholder in the two defendant companies. He has no prior convictions. He is active in charity work and is also a diabetic. I consider that the appropriate penalty in this case is a gaol term and that a fine would have no impact on him personally. I consider that the fact of the assault when his brother was attempting to read and to implement a court order, and the severity and brutality of that assault, justifies a gaol sentence to deter him and others from similar actions. I impose a jail term on him of six weeks imprisonment with hard labour. In respect of the defendant companies I impose a fine of K2,500 each to be paid to the National Court within seven days.

Mr. Henao for the defendants has advised me that he has instructions to appeal and has asked for bail. In the circumstances, which include the fact that the first defendant is not present in court today because he has returned to Lae, I think it appropriate to give him bail. After hearing Mr. Henao’s argument on bail I make the following orders.

Bail will be granted on the following conditions:

1. & T60; That the appeal is lodged by 4 p.m. on Thursday 4 May 1989.

2. 䃘 Khat 0 ,000 cash bash bail is paid by that time.

3. ټ&##160&#160 Th0; That the appeal be h be heard by the end of August 198 thatappelis to be present at the hearing of that that appe appeal. Ial. If the appeal is not heard by then, or the appellant is not present, bail will bfeited and the appellant isnt is to surrender to the custody of the police at Lae at 9 a.m. on 2 September 1989.

4. ـ L60; Liberty to apply.

On the matter of costs there has been a wilful and deliberate defiance of thet order in this case and I consider it appropriate to award costs on a solicitor-client bast basis. I award the cost of this motion for contempt and the earlier contempt action to the plaintiffs on a solicitor-client basis.

Lawyer for the plaintiffs: Blake, Dawson Waldron.

Lawyer for the defendants: Henao Cunningham & Co.