Kenehe v Pearson [2009] PGNC 158; N3763 (26 October 2009)

N3763

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NOS 95-101 OF 2007

MARTIN KENEHE, AITA SANANGKEPE, SAKIUSA DONNIS, JOAN
KALAMA, ANDREW NUABO, BENJAMIN YALO & SYNELL KALOU
Plaintiff

V

MICHAEL PEARSON, CHAIRMAN, TEACHING SERVICE COMMISSION
First Defendant

ROSE AUGUST, COMMISSIONER – OPERATIONS, TEACHING SERVICE COMMISSION
Second Defendant

DR JOSEPH PAGELIO, SECRETARY, DEPARTMENT OF EDUCATION
Third Defendant

Waigani: Cannings J
2009: 18 June, 26 October

VERDICTS

CONTEMPT – disobedience contempt – alleged failure to comply with court order re reinstatement of members of the Teaching Service to their substantive positions with full entitlements – whether the order was clear and unambiguous – whether order served on contemnors – whether contemnors failed to comply – whether failure to comply was deliberate .

The National Court made orders in judicial review proceedings commenced by various teachers (the plaintiffs) who had been dismissed from the Teaching Service or demoted for involvement in a strike. The Court quashed the decisions to dismiss or demote the plaintiffs and ordered amongst other things that they remain suspended from duty pending the result of an investigation, be reinstated to their substantive positions with full entitlements and be paid back-pay in respect of the periods after they were demoted or dismissed. The plaintiffs were paid back-pay but remained suspended without further pay. They claimed that this amounted to a breach of the order that they be reinstated with full entitlements. They commenced proceedings against two Commissioners of the Teaching Service Commission and the Secretary of the Department of Education, seeking orders that they be punished for contempt of court for disobeying the court’s orders.

Held:

(1) Proceedings for contempt are criminal in nature and the court must be satisfied beyond reasonable doubt that the three elements of the offence have been proven to exist:

- the order was clear and unambiguous;

- it was properly served; and

- there was a deliberate failure to comply.

(2) The orders were not clear and unambiguous as the provision of the Teaching Service Act under which the plaintiffs were suspended stated that suspension was to be without pay.

(3) The orders were properly served on the contemnors.

(4) There was no failure to comply with the orders as a reasonable interpretation of it was that the plaintiffs were required to be reinstated and paid back-pay but would remain suspended without pay.

(5) Two essential elements of the offence of contempt were not proven and all defendants were found not guilty.

Cases cited

The following cases are cited in the judgment:

Martin Kenehe & 6 Others v Allan Jogioba and 2 Others, OS Nos 95-101 of 2007, 11.07.08, unreported
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Ome Ome Forests Ltd v Ray Cheong (2002) N2289
Peter Luga v Richard Sikani and The State (2002) N2286
Richard Sikani v The State and Peter Luga (2003) SC807
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572
The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303

Abbreviations

The following abbreviations appear in the judgment:

DCJ – Deputy Chief Justice
Dr – Doctor
ICCC – Independent Consumer and Competition Commission
J – Justice
Ltd – Limited
N – National Court judgment
No – number
OS – originating summons
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
Pty – Proprietary
SC – Supreme Court judgment
Sr – Sister
v – versus

NOTICE OF MOTION

This is a ruling on a motion for contempt of court.

Counsel

C A Kuira, for the plaintiffs
G Korei, for the defendants

26 October, 2009

1. CANNINGS J: There are seven plaintiffs in this case and they are all teachers by profession. They have commenced contempt of court proceedings against two Commissioners of the Teaching Service Commission – the Chairman Mr Michael Pearson and the Commissioner Operations Ms Rose August – and the Secretary for Education, Dr Joseph Pagelio. The plaintiffs allege in a statement of charges filed on 4 February 2009 that those three defendants have deliberately disobeyed orders of the National Court made on 11 July 2008 in a case in which they challenged their demotion or dismissal from the Teaching Service for involvement in a nationwide strike in 2006.

2. This is the ruling on whether any one or more of the three defendants is guilty of contempt.

THE ORDERS OF 11 JULY 2008

3. The orders were made by Injia DCJ, as he then was, in judicial review proceedings commenced by the plaintiffs. His Honour delivered a written judgment (Martin Kenehe & 6 Others v Allan Jogioba and 2 Others, OS Nos 95-101 of 2007, 11.07.08, unreported). He quashed the decisions to dismiss or demote the plaintiffs and ordered amongst other things that they remain suspended from duty pending the result of an investigation, be reinstated to their substantive positions with full entitlements and be paid back-pay in respect of the periods after they were demoted or dismissed.

4. The orders stated:

1. The application for judicial review in each matter is granted.

2. An order in the nature or certiorari is granted quashing the decision of the Defendants in respect of each Plaintiff, the subject of the review in each matter.

3. The "investigations and hearing" proceedings purportedly conducted by the Independent Investigation Team appointed by the Secretary for Education under Section 95(2) of the Teaching Service Act 1988 and the findings and penalty imposed by the Teaching Service Commission pursuant to those "investigation and hearing" are all declared null and void.

4. Each Plaintiff shall remain suspended pursuant to the notice of suspension issued by the authorised officer until the matter is properly heard and determined by a duly constituted Teaching Service Commission under Section 95(2) and Section 11 of the Teaching Service Act 1988.

5. The notices of suspension issued to each Plaintiff are remitted back to the Teaching Service Commission for rehearing before a duly constituted Teaching Service Commission.

6. Each Plaintiff is reinstated to his or her substantive position with full entitlements. They are also to pay their entitlements which he or she received on their substantive positions immediately before the penalty was imposed, if any, which they are lawfully entitled to receive, which they missed out between the date of those decisions and the date of this judgment. [sic]

7. If there is any dispute between the parties as to the outstanding entitlements to be paid which cannot be amicably settled through meaningful dialogue and compromise, then either party is given liberty to apply to this Court for assessment of damages, by giving one (1) month notice to the other party.

WHAT HAS HAPPENED SINCE 11 JULY 2008?

5. The plaintiffs were in August 2008 paid back-pay in respect of the period since mid-2006, the period of two years during which they had not been paid. But they were not paid anything after August 2008. They were reinstated as members of the Teaching Service to the substantive positions that they held at the time of their dismissal or demotion but suspended without pay. It is the decision of the Teaching Service Commission, aided and abetted by the Secretary for Education, not to pay them after August 2008, which the plaintiffs say puts the defendants in contempt of court.

ELEMENTS OF CONTEMPT

6. The plaintiffs claim that the defendants have committed a ‘disobedience’ contempt: they have deliberately failed to comply with (or disobeyed) a court order. To succeed with this claim they must prove three things:

- the order was clear and unambiguous;

- the order was properly served on the contemnors (those charged with contempt: the defendants); and

- the contemnors deliberately failed to comply with it.

7. Contempt of court is a criminal matter and the plaintiffs must prove the existence of the three elements beyond reasonable doubt. Each contemnor must be treated separately. If one element is not proven against a contemnor that person will be not guilty. If all elements are proven against any contemnor, he or she will be guilty and I will hear the parties on the question of punishment. (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533; The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303; Peter Luga v Richard Sikani and The State (2002) N2286; Ome Ome Forests Ltd v Ray Cheong (2002) N2289; Richard Sikani v The State and Peter Luga (2003) SC807; Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447; Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572.)

8. I now consider the three elements of the offence.

FIRST ELEMENT: WERE THE ORDERS OF 11 JULY 2008 CLEAR AND UNAMBIGUOUS?

9. Mr Kuira, for the plaintiffs, submits that the orders were very clear especially the first part of Order No 6, which stated:

Each Plaintiff is reinstated to his or her substantive position with full entitlements.

"Full entitlements" means that they had to be reinstated with pay, Mr Kuira submitted.

10. I would agree with Mr Kuira that that would be the proper interpretation of Order No 6 if it were a stand-alone order. But it was not the only order made so it must be read in context. Order No 4 qualifies the meaning of Order No 6 substantially by stating:

Each Plaintiff shall remain suspended pursuant to the notice of suspension issued by the authorised officer until the matter is properly heard and determined by a duly constituted Teaching Service Commission under Section 95(2) and Section 11 of the Teaching Service Act 1988.

11. Section 95 makes it a disciplinary offence for a teacher to go on strike and prescribes special procedures for dealing with teachers allegedly involved in strike action. These procedures are separate and distinct from those that apply to other sorts of disciplinary offences. One of the procedures under Section 95(1) is that the teacher is suspended without pay. The Teaching Service Commission is then required to conduct an investigation and hearing into the matter. In the present case his Honour found no fault with the suspension of the plaintiffs but held that serious errors were subsequently committed as there was no proper investigation or hearing and the plaintiffs were denied natural justice.

12. In summing up the case his Honour stated:

It follows that the decisions made by the Teaching Service Commission after investigation and hearing conducted by the Independent Strike Investigation Team appointed by the Secretary for Education must be quashed by an order for certiorari. As for the suspension under Section 95(1) I do not find any error or fault. Serious allegations have been made against the plaintiffs for their involvement in the May and July 2006 strikes and those allegations should be properly investigated and determined by the TSC. The plaintiffs will remain suspended and the matter will now go before the TSC to conduct a proper hearing in accordance with this decision. Each plaintiff will be restored to his or her substantive position prior to the decision and paid their full entitlements backdated to the time of the decision. [Emphasis added.]

13. His Honour’s finding that there was nothing wrong with the suspension notices is reflected in order No 4. Although the plaintiffs had a substantial victory in that they got their jobs back and were paid back-pay his Honour was saying that the allegations against them still had to be investigated properly and though they would be reinstated they would "remain suspended pursuant to the notice of suspension".

14. Each suspension notice said that the suspension was without pay. Therefore the effect of the order was that upon reinstatement to the Teaching Service to the same positions that they held prior to their dismissal or demotion, each plaintiff would be suspended without pay. It is possible to read the first part of order No 6 and the first part of order No 4 the other way so that the suspension is to be with pay. But having carefully considered the whole judgment and particularly the summing up, I really do not think that it is what his Honour intended.

15. I conclude that the orders were not clearly and unambiguously ordering that the plaintiffs would be reinstated with pay. The first element of the offence of contempt has not been proven and therefore the prosecution will fail. I will, however, briefly consider the other elements.

SECOND ELEMENT: WERE THE CONTEMNORS PROPERLY SERVED?

16. Yes. They have not taken issue with the question of service so the second element is proven.

THIRD ELEMENT: WAS THERE A DELIBERATE FAILURE TO COMPLY WITH THE ORDERS OF 11 JULY 2008?

17. As I indicated in Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572 this element gives rise to three issues:

- was there a failure to comply?

- who failed to comply?

- was it deliberate?

18. Here there was no failure to comply as the combined effect of order Nos 4 and 6 was that the reinstatement and suspension of the plaintiffs was to be without pay. The second part of order No 6 – that the plaintiffs be paid back-pay – has been complied with. There is a suggestion in Mr Kuira’s submission that one of the plaintiffs, Mr Synell Ko’ou, has not been paid his back-pay but there is insufficient evidence to support this allegation and I am deciding this case on the basis that all plaintiffs have been paid their back-pay.

19. If I had accepted the plaintiffs’ arguments about the interpretation of order Nos 4 and 6 and found that the suspensions were required to be with pay and that there had been a failure to comply I would have not have found that Dr Pagelio had failed to comply. Responsibility for implementing the Court’s orders of 11 July 2008 rested with the Commissioners of the Teaching Service Commission, not the Secretary for Education. Mr Pearson and Ms August made the decision in their deliberate judgment, and acted on legal advice. Their failure to comply would have been deemed wilful.

20. However I reiterate that none of the defendants disobeyed the orders so the third element has not been proven.

VERDICTS

21. The following verdicts will be entered in relation to the statement of charges filed on 4 February 2009:

(1) The first defendant, Mr Michael Pearson, is adjudged not guilty of contempt of court and is acquitted accordingly.

(2) The second defendant, Ms Rose August, is adjudged not guilty of contempt of court and is acquitted accordingly.

(3) The third defendant, Dr Joseph Pagelio, is adjudged not guilty of contempt of court and is acquitted accordingly.

Verdicts accordingly.

____________________________

Ketan Lawyers: Lawyers for the Plaintiffs
Solicitor- General: Lawyer for the Defendants