Papua New Guinea University of Technology v National Academic Association of the University of Papua New Guinea [2007] PGNC 270; N3877 (22 March 2007)

N3877

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. 804 of 2006

THE PAPUA NEW GUINEA UNIVERSITY OF TECHNOLOGY

AND

NATIONAL ACEDAMIC ASSOCIATION OF THE UNIVERSITY OF PAPUA NEW GUINEA

AND

RE CONTEMPT OF COURT; PULAS YOWAT, ROBERT SONGAN, RAYMOND BURE AND GIBSON TITO

Waigani: Kandakasi, J.
2007: 22nd March

CONTEMPT - Contempt of Court – Deliberate disobedience of Court order – Members of a trade union consciously and deliberately decided to disobey court orders – Earlier Court order not obeyed – Subsequently order requiring them to comply also not following – Contempt running for over 8 days - No satisfactory explanation – Plea of guilty – First time offenders – Real victims and not parties to dispute likely suffered if prison term imposed - Strong deterrent punishment called for – K2,500 less costs of airfares and bail already paid imposed to be paid within two months with additional conditions for good behaviour imposed.

Cases Cited

Papua New Guinea Cases:

Andrew Kwimberi of Paulus M. Dowa Lawyers v. The State (1998) SC 545
Park Sung Soo & 2 Ors. v. Hankin Emboge & 4 Ors. (2002) N2248
The Public Prosecutor v. Nahau Rooney (No. 2) [1979] PNGLR 448
Kalip Salo & 3 Ors. v. Peter Terry Gerari & 5 Ors (2005) N2923
Concord Pacific Limited & Anor v. Thomas Nen & 2 Ors (2000) N1981

Overseas Cases cited:

Re. Bramblevale Ltd [1970] Ch 178
Knight v. Clifton [1971] Ch 700 at 707; [1971] 2 All ER 378
Dean v. Dean [1987] 1 FLR 517
Attorney General v. Times Newspapers [1974] AC 273

Counsel:

Mr. G. Epor, for the Plaintiff/Complainants
Mr. R. Bradshaw, for the Defendant/Contemnors

22nd March, 2007

1. KANDAKASI J: On 22nd March 2007, I heard and delivered extempore judgment in relation to the contemnors' penalty after they pleaded guilty to a charge of contempt brought against them. I promised to provide my full reasons for my judgment. This constitutes the full reasons for my judgment.

The Relevant Facts

2. There is no contest on the material facts giving rise to the charge of contempt against the contemnors. There has been an ongoing dispute between the plaintiff and the defendant in relation to certain issues from better terms and conditions of employment to allegations of corruption in the plaintiff's administration. This led to an issuance of court proceedings which resulted in initial interim restraining orders obtained on 17th November 2006 by the plaintiff. Those orders, ordered the defendant, its executives and its members to perform their academic and administrative duties under their respective employment contracts with the plaintiff and see to a successful competition of the 2006 academic year. The defendant, its executives and its members complied with those orders.

3. According to the university, its 2007 academic year was due to commence on 26th February 2007. A few days before that, defendant's executives took out a newspaper advertisement on 15th February 2007, saying they would take industrial action by going on strike due to plaintiff's allegedly failure to meet their log of claims. In a bid to prevent the strike action, the plaintiff attempted compulsory conference with the defendant through its executives in consultation with the Industrial Registrar according to provisions of Industrial Relations Act. However, negotiations undertaken by the parties failed.

4. The failure to reach any negotiated outcome caused the plaintiff to go to Court on 23rd February 2007 and obtained interim restraining orders in the following terms:

1. The defendant, its members and executives be restrained from taking any strike action; and

2. Resume classes/lecturers on 26th February 2007.

5. The interim restraining orders of 23rd February 2007 were made returnable on 5th March 2007.

6. The orders of 23rd February 2007, together with the relevant notice of motion for those orders, Affidavit of George Epor and Steeles Lawyers Notice of Change of Lawyers were served by a Peter Iroro on 24th February 2007 upon Pulas Yowat, who told Peter Iroro that, service on him was for and on behalf of himself and his executives. Despite the service of the orders, the defendant's executives and its membership did not comply with the orders of 23rd February 2007, come 26th February 2007. The non compliance continued upon the return of the interim restraining orders on 5th March 2007.

7. On 5th March 2007, the Court extended the interim restraining orders of 23rd February 2007 to 6th March 2007at 8.00 am with orders for full compliance of the earlier orders. The Court then adjourned to 7th March 2007, to see if the defendant and its executives and its membership would comply with the orders of 23rd February and extended on 5th March 2007. The plaintiff took out formal minutes of the orders of 5th March 2007, and served the defendants lawyers with sealed copies of the same. By 8:00am on 6th March 2007, the defendant's membership and its executive had still not complied with the orders of 23rd February as extended by the orders of 5th March, despite service of the orders on them.

8. The plaintiff university therefore, decided to bring contempt proceedings against the defendant union's executives. Consequently, on 7th March 2007, the Court cited the contemnors for contempt and ordered them to be taken into custody of the police and for them to be held in custody and brought before the Court. On 10th March, 2007 at around 2.00am, the police acted on the Court's orders of 7th March and took the contemnors into their custody. However, around 10.00pm on the same day, the contemnors successfully applied for their bail before Manuhu J. in the National Court in Lae and were released on a cash bail of K300.00 each.

9. Whilst the contemnors were in custody for a brief period of about 20 hours, the caretaker president of the defendant union, Mr Loko Anota signed "an interim" concession with the Chancellor of the plaintiff for classes to resume on 12th March 2007. However, classes did not resume on 12th March 2007 and the members of the defendant, with its executives being the contemnors, remained defiant. So on 15th March 2007, the Court issued a bench warrant for the re-arrest of the contemnors on the plaintiff's allegations that the contemnors breached their bail conditions. However, later that day, the contemnors voluntarily appeared in Court to answer to the charges so the Court revoked the bench warrants.

10. The plaintiff's allegations of contempt by the contemnors was from 26th February 2007 to 7th March 2007.

Procedure

11. Bearing the above facts in mind, I now turn to the practice and procedure concerning contempt of court. Division 6, of Order 14 provides for contempt proceedings in two settings, contempt in the face of the Court,[1] which is a summary process[2] and contempt in connection with proceedings in the Court.[3] The rules then provide for the procedure to follow in relation to contempt in connection with proceedings in Court. They generally provide that, contempt proceedings can be instituted by a notice of motion or separate originating summons supported by a statement of charge specifying the alleged contempt.[4] They go on to provide that, the charge must be put to the alleged contemnor, who has a right to make his defence and have a hearing to establish his guilt or innocence.[5] Further, the rules provide that, the motion for contempt may be pursued by the Registrar of the Court or any other person.[6] The rules also make provision for warrants of arrest, arrest, punishment and discharge of contemnors.[7]

12. The rules do not unfortunately provide as to the particular procedure to follow in terms of actually putting the contempt charge to an alleged contemnor and taking his or her plea, and depending on the plea, the kind of hearing there should be, find of guilt or innocence, administration of the allocutus, and the principles governing a determination of penalty once guilt is established. The Supreme Court decision in Andrew Kwimberi of Paulus M. Dowa Lawyers v. The State,[8] held that, contempt proceedings are criminal in nature. Therefore, the procedure for contempt should be similar to the one applying in criminal cases. This accorded well with the established view at common law as represented by the decisions in Re. Bramblevale Ltd;[9] Knight v. Clifton;[10] and Dean v. Dean.[11] Proceeding on that basis, I held in Park Sung Soo & 2 Ors. v. Hankin Emboge & 4 Ors.,[12] that, in the absence of anything to the contrary in the National Court Rules, the procedure as it applies in criminal proceedings apply. It follows therefore that, the process as it applies in criminal cases with regard to the actual process of putting a contempt charge to an alleged contemnor, taking his or her plea, a hearing depending on the plea, administration of allocutus and the principles governing a determination of appropriate penalty once guilt is established, equally applies here, with appropriate modification where required to reflect the fact that, this is a contempt of court charge.

13. At the commencement of the hearing, I outlined the above procedure to the contemnors and they took no issue. Accordingly, the charges of contempt and the facts in support of the charge as outlined in the foregoing summation of the facts were put to the contemnors. Each of the contemnors was separately arraigned and they separately pleaded guilty to the charge. I then administered their allocutus or address before sentence. They all elected to leave it all to their lawyer, Mr. Bradshaw.

14. Counsel for the contemnors, Mr. Bradshaw, ably outlined with the support of an affidavit deposed to by each of the contemnors the contemnors' respective personal and family backgrounds as well as their personal attitude to the contempt they all committed and the kind of penalty they respectively prefer the Court to impose against them. I will return to these aspects when considering the appropriate penalty. For now, I wish to turn to a consideration of the principles governing the exercise of Court's power to impose punishment for contempt.

Relevant Principles on Determining Penalty

15. This is not the first time a contempt of Court has occurred and the Court has to deal with it. Many cases have already come before the Court starting with the notorious cases of The Public Prosecutor v. Nahau Rooney (No. 2)[13] with the latest one of Kalip Salo & 3 Ors. v. Peter Terry Gerari & 5 Ors.[14] The decision in the Kalip Solo case, reviewed nearly all of the cases that were dealt with prior to that decision. From that review, it is clear that, penalties for contempt have varied from fines to imprisonment. With respect, none of these cases succinctly state the guiding principles in relation to determining an appropriate penalty in contempt cases. I will therefore endeavour to extrapolate the relevant principles from the past cases.

16. The first principle I note is the fact that, there is clear agreement from all of the authorities that,given that contempt is criminal in nature, a Court considering penalty for contempt as the same discretion as does a Court considering sentence in a criminal case.[15] I add however, that since there is no prescription of the kind of penalty that a Court can impose on a contemnor, the discretion the Court has is a much broader and wide one than the kind of discretion a criminal court has. This is because, in most criminal offences, the legislature provides for a maximum penalty, which a criminal court is obliged to observe.

17. The second thing I note is that, the penalty for contempt of court must reflect the fact that, contempt of court is a serious affront to the whole justice system. Therefore the penalty must be stern and decisive so as to ensure that contemnors cannot and be allowed to trample on the authority of the Court. A failure to do that presents the risk of adding to a mockery of the authority of the court and the administration of justice by or through judicial proceedings and the due process of law.[16] Such punishment is necessary to ensure that the society functions in an orderly manner. This, accords well with long established principles at common. Lord Morris in Attorney General v. Times Newspapers[17] summarized the law in these terms:

"In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperiled and that recourse to them should not be subject to unjustified interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibility of administering justice are concerned with their own dignity: it is because the very structure of ordered life is at risk if the recognized courts of the land are so flouted and their authority wanes and is supplanted."

18. Lord Diplock in the same case pointed out that, there is a public policy consideration in punishing contemnors in these terms:[18]

"One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a "civil contempt". The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement .........criminal contempt of court resembles many ordinary criminal offences, such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large."

19. The Supreme Court effectively approved and adopted these principles initially in the Nahau Rooney (No. 2) case and subsequently in the Andrew Kwimberi Case.

20. The third principle I notice standing out from the cases on point is the fact that, the question of what is an appropriate penalty is dependant on whether the contempt is deliberate and international or was a mere oversight or inadvertence, lacking of understanding or not being aware of the existence of the Court orders. Where the contempt is not a deliberate breach of the Court's order but rather it was due to ill advise, that might attract very little or no punishment, as was the case in Concord Pacific Limited & Anor v. Thomas Nen & 2 Ors.[19] However, where the contempt has been deliberate and or intentional, the Courts have imposed various sentences from fines to suspended sentences and imprisonments for certain fixed periods. Sevua J., summarized the cases on point in his decision in the Kalip Salo case, which I need not repeat suffice only to refer to the judgment. This summary of the kind of penalties imposed shows variances in the penalties imposed for contempt of Court, depending on the nature of the contempt and how serious the Court took them to be, and reasons provided by the contemnors for their actions.

21. Finally, I notice that, as is the case in ordinary criminal cases, the Court considering penalty for contempt has a duty and obligation to administer the contemnors, their allocutus, receive their submissions on penalty, take into account their personal antecedents and circumstances in which they committed the contempt and then arrive at a penalty that best be fits the offence.

22. Bearing in mind the above principles, I proceeded to consider an appropriate penalty for each of the contemnors. I took into account each of their personal backgrounds which were similar and as were set out in their respective affidavits sworn and filed in Court on 22nd March 2007. In summary, they are highly educated with second or third postgraduate degrees in their respective and various fields. They were and are all married with children and have not been in trouble with the law before. This is their first ever offence. They held and continue to hold responsible positions with the plaintiff university and the latter would be hard placed to readily replace the contemnors if the Court imposed a prison term. That obviously had the risk of affecting the learning of innocent students of the university, whose parents have worked hard to get them to that level and have a legitimate expectation that they would be taught well. Further, all of the contemnors pleaded guilty, thereby saving time and money for all including the Court's time. Also, they said sorry for disobeying the Court's orders and promised not to be in breach of any Court orders in the future. These factors operated in the contemnors favour.

23. There were however, serious aggravating factors against the contemnors. First and foremost was the fact that, each of the contemnors together with other members of the defendant union, made, informed and deliberate decision to disobey the Court orders of 23rd February 2007. These orders were reinforced by the orders of 5th March 2007. The contemnors were fully aware of the terms of the orders and were also aware of what was required of them. Despite that, they made deliberate and informed decisions to act against the terms of the orders. Hence this was a worse form of contempt of court, requiring a much sterner punishment than the kind of punishment other contemnors have received in the past. Such a penalty was considered necessary and imperative to show and protect the authority of the courts and protect and suppress any unjustified interference with that authority. The authority of the Courts and the role they play in a democratic society such as ours is a necessary must to have for the organised and orderly functioning of our society. Such a penalty was not out of a concern for the protection of the Court's own dignity and integrity but it was also because of the very structure of ordered life being put at risk, if the recognized courts of the land were allowed to be so flouted and their authority waned and supplanted.

24. Further, a sterner penalty was considered necessary to send out a strong message to people like the contemnors themselves and any other person who might be disposed to disobeying Court orders. The need to send that message was far more appropriate in this case because of the kind of influence the contemnors and the defendant union's actions would have on the young students attending the plaintiff university. If the contemnors were allowed to get away lightly with their contemptuous actions, which were in the presence and witness of the students, the Court would easily lose not only its integrity and dignity but also more importantly the important role courts play in society. The students are the future leaders of our country and they need to be educated and or trained with right kind of knowledge and skills as well as influences. The nation cannot afford bad influences such as the ones that the contemnors displayed.

25. Secondly, following on from the first point, each of the contemnors were highly educated. They understood, read and wrote in the English Language very well. That was the language in which the relevant Court orders were. The contemnors therefore, read and understood very well what was required of them. This was not a case of each of the contemnors not being aware of what the orders said and required of them. This was also not a case of the orders not being served on them. Further, it was not a case of the contemnors not being aware of the existence of the orders in question.

26. Thirdly, the contemnors tried to justify their actions by saying that the defendant union's membership voted to disobey the Court orders. Therefore, as leaders, they were under an obligation to stand by the members of the union as they felt their lives were at risk if they failed to stand by the decision of the union members. However, they produced no evidence of any basis for holding such a fear, for example they produce no evidence of any direct treats level against all or anyone of them and such treats being taken seriously. They were not even able to produce any evidence of trying to seek police protection if indeed the decision to disobey the Court orders made by the union members were without any encourage from them or with their involvement. In the absence of any evidence to the contrary, I found that the position taken by the contemnors and the members of the defendant union was a play out of the well known principle in union circles "united we stand, divided we fall". It was a decision for and to act in solidarity. I therefore rejected this explanation as a reasonable explanation for the contemnors' actions.

27. Finally, the contemnors were the leaders of the defendant union and its membership. Although they claimed that it was the defendant's membership that decided to defy the Court orders, they produced no evidence of the position they themselves as leaders took toward a recognizance and acceptance of the Court orders and complying with the Court orders. More importantly, the contemnors did not place before the Court any evidence of each of the contemnors advising the members of the defendant union to comply with the orders. What was, however, clearly in evidence was that, a decision was deliberately arrived at to defy the Court orders. Hence, I was of the view that, in the absence of any evidence to the contrary, the contemnors led the members of the defendant union, by their actions or inactions to defy the Court orders.

Decision on Penalty

28. Carefully weighing the factors for and against the contemnors as well as the kinds of penalties imposed in past cases of contempt of court, I expressed the view that, the present case warranted an imprisonment term of more than twelve months. However, given that the plaintiff university would not be in a position to immediately and easily replace the contemnors, and more importantly that, the students of the plaintiff would be the immediate, innocent and main victims in terms of their learning being jeopardized; I was persuaded to consider an alternative penalty.

29. In the circumstances, I considered fining each of the contemnors would be appropriate. Accordingly, I decided to fine each of the contemnors in the sum of K2, 500 each. From that amount, I ordered a deduction of K1,518.00, being the sums they already spend in airfares to and from Port Moresby. I also ordered a further deduction of K300.00 each being the amounts each of the contemnors paid toward their bail pending a hearing and conclusion of the contempt charges against them. I then ordered that the balance of K682 be paid within two months. Additionally, I placed the contemnors on good behaviour for twelve months from the date of the decision and restrained them from engaging in, participating or encouraging any industrial action within that twelve months period. Further, I made an order restraining the defendant union from engaging in any industrial action for twelve months from the date of the decision. I considered the last two orders necessary and appropriate, given the seriousness of the contempt by the contemnors as well as the defendant union and the need to avoid further jeopardy to learning of the students of the University.
_______________________________________________________

Steeles Lawyers: Lawyers for the Plaintiff/ Prosecution
Bradshaw Lawyers: Lawyers for the Defendant/Contemnors

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^[1] O.14 r.38.
^[2] Andrew Kwimberi of Paulus M. Dowa Lawyers v. The State (1998) SC 545.
^[3] O.14 r.42.
^[4] O.14 rr. 42 & 43.
^[5] O.14 r. 39.
^[6] O.14 r. 47.
^[7] O.14 rr. 48, 49 & 50.
^[8] Opt cit note 2.
^[9] [1970] Ch 178.
^[10] [1971] Ch 700; [1971] 2 All ER 378.
^[11] [1987] 1 FLR 517.
^[12] (2002) N2248.
^[13] [1979] PNGLR 448.
^[14] (2005) N2923.
^[15] See for example the decision in the Kalip Salo case.
^[16] See the decision in Kalip Salo case.
^[17] [1974] AC 273 at 302.
^[18] At pp 307& 308.
^[19] (2000) N1981.