Vua v Mavu [2008] PGNC 20; N3294 (26 March 2008)

N3294

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 29 OF 2008

MOSES VUA, GERARD SOU & PAUL PHILIP,
representing Evusovul clan
Plaintiffs
V
FRANCIS MAVU & ALFRED MAVU
Defendants

Kimbe: Cannings J
2008: 20, 26 March

PRACTICE AND PROCEDURE – motion to dismiss proceedings for disclosing no reasonable cause of action – National Court Rules, Order 12, Rule 40.

CONTEMPT – elements of contempt committed in connection with court proceedings – alleged breach of court order – whether order was clear and unambiguous.

The plaintiffs commenced contempt proceedings against the defendants, alleging that the defendants breached an order of the National Court concerning receipt of timber royalties. The plaintiffs obtained an ex parte order preventing the defendants from collecting royalties, pending determination of the substantive matter. The defendants responded by moving a motion that the proceedings be dismissed for disclosing no reasonable cause of action.

Held:

(1) Where it is alleged that a person has committed contempt of court for breaching a court order, three things must be proven:

• the order was clear and unambiguous;
• it was properly served; and
• there was a deliberate failure to comply.
  

(2) Here, the order was not clear and unambiguous as it was not clear on the face of the order whether the land to which it related included the land in respect of which the defendants have been receiving timber royalties.

(3) Furthermore, it could not be said that there has been a deliberate failure to comply with the order.

(4) The contempt proceedings have no reasonable prospect of success and therefore the originating summons discloses no reasonable cause of action and should be dismissed.

Cases cited:

Francis Mavu v Mathias Moto and Others (2005) N2879
Newsat Ltd v Telikom PNG Ltd and Others, WS No 1350 of 2006, 07.05.07

NOTICE OF MOTION

This was a motion for summary dismissal of contempt proceedings.

Counsel
G Linge, for the plaintiffs
M Titus, for the First Defendant
B Abraham, for the Second Defendant

26 March, 2008

1. CANNINGS J: This is a ruling on a motion brought by the defendants, Francis Mavu and Alfred Mavu, to have contempt of court proceedings commenced against them summarily dismissed.

THE CONTEMPT PROCEEDINGS

2 The contempt proceedings were initiated by the plaintiffs, Moses Vua, Gerard Sou and Paul Philip, who argue that the defendants have been receiving timber royalties over customary land in defiance of a National Court order. The plaintiffs say that the order, which I made on 8 September 2005 in OS No 590 of 2004, appointed them (the plaintiffs) as clan agents for the Evusovul clan, for the purposes of receiving royalty payments in respect of customary land in the Hoskins area of West New Britain known as Gimomi-Lapo. That order followed a hotly contested case involving the first defendant: Francis Mavu v Mathias Moto and Others (2005) N2879.

3 The plaintiffs say that in 2006, Stettin Bay Lumber Company started logging in areas of Gimomi-Lapo covered by the court order and this has generated timber royalties of about K124,000.00 for the Evusovul clan. All of that money has been received by the defendants, who have no right to it; and this breaches the order of 8 September 2005, say the plaintiffs.

4 The plaintiffs filed an originating summons on 29 January, 2008 seeking orders that:

• the defendants be charged with contempt of court;
• the defendants be imprisoned or fined;
• a Mitsubishi truck believed to have been purchased with the royalties be impounded and transferred to the plaintiffs;
• the defendants be restrained from acting as agents for Evusovul clan.
  

5 On 13 February, 2008, the plaintiffs sought and obtained an ex parte order from the National Court (Gabi J) in Kimbe, restraining the defendants from acting as clan agents for Evusovul and putting a stop to the imminent payment of a further K177,000.00 in royalties and transferring that money into the National Court Trust Account, pending the hearing of the substantive matter.

THE DEFENDANTS’ POSITION

6 The defendants say that the contempt proceedings are based on a false premise and that the order of 13 February, 2008 was improperly obtained and that the originating summons has no reasonable prospect of success and should be struck out.

7 They say that the royalties they have received since 2006 relate to a TRP area called AWM (Ainbul Weipo Melei), which is completely different to the Gimomi-Lapo TRP, which was the subject of the court order of 8 September 2005.

8 The defendants bring their motion under Order 12, Rule 40 of the National Court Rules, which states:

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1).

9 The defendants argue that the originating summons discloses no reasonable cause of action, and that the proceedings are frivolous, vexatious and/or an abuse of process.

10 Mr Titus, for the first defendant, and Mr Abraham, for the second defendant, also marshalled an array of procedural points to argue that the proceedings are defective but I have found it unnecessary to deal with them. The motion can be resolved by determining whether the proceedings fail to disclose a reasonable cause of action and that is the issue I am going to focus on.

THE PLAINTIFFS’ POSITION

11 The plaintiffs assert that the customary land called Gimomi-Lapo includes not only the Gimomi-Lapo TRP area but also part of the AWM TRP, which extends into the Gimomi-Lapo customary land.

WHICH IS THE CORRECT VIEW?

12 Does the 8 September 2005, order cover, as the plaintiffs say, all the customary land called Gimomi-Lapo? Or only, as the defendants assert, the Gimomi-Lapo TRP area?

13 The order stated:

Clan agents for the purposes of receiving royalty payments in respect of Gimomi-Lapo are appointed as follows:

(a) Evusovul clan: Moses Vua, Gerard Sou and Paul Philip. ...

14 As the order refers to Gimomi-Lapo in general terms, without mentioning the TRP, it is arguable – as submitted by the plaintiffs – that it relates to the customary land called Gimomi-Lapo and not only to the Gimomi-Lapo TRP.

15 However, when the order is put in the context of the judgment which led to it, a different picture emerges. In the opening paragraph I stated:

This case is about a dispute over customary land and who are the right clans and individuals to receive timber royalties. The land is called ‘Gimomi-Lapo’. It is a large tract of land in the Hoskins district of West New Britain Province. It is a designated timber rights purchase area under the Forestry Act.

16 That passage would appear to support the defendants’ submission that the order relates only to the Gimomi-Lapo TRP.

17 I conclude that it cannot be said with certainty, without further inquiry, which interpretation of the court order is the correct one. Though that might sound wishy-washy, it is a significant point to make and one which will bring the defendants’ motion to a speedy conclusion.

THE ELEMENTS OF CONTEMPT

18 As I pointed out in Newsat Ltd v Telikom PNG Ltd and Others, WS No 1350 of 2006, 07.05.07, where it is alleged that a person has committed contempt for breaching a court order, three things must be proven:

• the order was clear and unambiguous;
• it was properly served; and
• there was a deliberate failure to comply.
  

19 Here, the order is not clear and unambiguous as it is not clear on the face of the order whether the land to which it related included the land in respect of which the defendants have been receiving timber royalties. Furthermore it cannot be said that there has been a deliberate failure to comply with the order.

20 I therefore consider that the contempt proceedings have no reasonable prospect of success. It follows that the originating summons discloses no reasonable cause of action and should be dismissed under Order 12, Rule 40(1)(a) of the National Court Rules.

EFFECT OF DISMISSAL

21 There is one thing I need to emphasise about the dismissal of the proceedings. I am not making a finding that the order of 8 September 2005 only relates to the Gimomi-Lapo TRP. I am only finding that it is not clear on the face of the order whether it relates only to the Gimomi-Lapo TRP or whether it relates to all of the customary land known as Gimomi-Lapo. Therefore it is open to the parties to have those issues resolved in fresh proceedings.

22 As for the order of 13 February, 2008 which has suspended the payment of about K177,000.00 in timber royalties, I will let it continue for a further seven days, during which time the parties can assess whether it should continue any longer than that and whether any fresh proceedings will be commenced. To that end, I will direct that the order of dismissal not be entered until seven days after today and that this matter and any fresh proceedings emanating from it be mentioned seven days after today.

COSTS

23 Costs normally follow the event, ie the party that loses a case has to pay the costs of the winning party. I see no reason for that rule of thumb not applying in this case. However, this is not an appropriate case in which solicitor-client costs should be payable.

ORDERS

(1) The proceedings OS No 29 of 2008 are dismissed, generally, pursuant to Order 12, Rule 40(1)(a) of the National Court Rules.

(2) Costs of these proceedings shall be paid by the plaintiffs to the defendants on a party-party basis, to be taxed, if not agreed.

(3) The order of 13 February 2008 shall continue in force until 2 April 2008 but not after 2 April 2008 without a further order of the National Court.\

(4) This matter and any fresh proceedings emanating from it shall be set down for mention and hearing of any related motions at Kimbe on 2 April 2008 at 9.00 am.

(5) This order shall not be entered, for the purposes of Division 12.2 of the National Court Rules, until the court directs that it be entered.

Orders accordingly.

____________________________

Linge & Associates: Lawyers for the Plaintiff
Titus Lawyers: Lawyers for the First Defendant
Nelson Lawyers: Lawyers for the Second Defendant