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Dengo v Tzen Niugini Ltd [2011] PGNC 255; N5043 (31 August 2011)

N5043


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO. 901 OF 2006


BETWEEN:


BENNY DENGO, RHYNOLD GUBARA & KEVIN GUBA AS EXECUTIVES & REPRESENTATIVES OF SHAREHOLDERS OF YEMA GAIAPA DEVELOPERS LIMITED
First Plaintiff


AND:


YEMA GAIAPA DEVELOPERS LIMITED
Second Plaintiff


AND:


TZEN NIUGINI LIMITED
Defendant


Waigani: Davani, J
2011: 14th July
31st August


CONTEMPT PROCEEDINGS – alleged breach of consent orders by plaintiffs – contempt proceedings filed by defendant


CONTEMPT PROCEEDINGS – filed upon Plaintiffs proceedings – application filed by plaintiffs to dismiss contempt charges filed by defendants, as disclosing no cause of action, for being frivolous and vexatious and for being an abuse of process.


PRACTISE AND PROCEDURE – Plaintiffs' allege breach of consent orders by defendant – Court reviewed terms of consent orders to determine whether there was a breach – No breach of consent orders – contempt proceedings dismissed.


Facts


The Plaintiffs are the shareholders and directors of Yema Gaiapa Developers Ltd the named second plaintiff. They filed proceedings seeking orders to effectively prevent the defendants from dealing with the plaintiff company and the Registrar of Companies.


Consent orders of 24th September, 2010 were taken out by all parties in nearly the same terms as the orders sought in the Originating Summons, one of which was that the defendant company could seek the services of a new Contractor to log. When the plaintiffs did that, the defendants filed these contempt proceedings claiming that the plaintiffs had breached the consent orders.
The plaintiffs filed application to dismiss the contempt proceedings on the basis that there was no cause of action, that it was frivolous and vexatious and that it was an abuse of process.


Held


That based on the orders taken out, there was no cause of action because the plaintiffs had not breached any orders.


Counsel:


L. Kari, for the First and Second Plaintiffs
I. Shepherd, for 6 alleged Contemnors
F. Griffin, for the Defendant, Tzen Niugini Limited and applicant for contempt orders


DECISION
31st August, 2011


  1. DAVANI .J: In appearance before me are Mr L. Kari of PNG Legal Services for the first and second plaintiffs, Mr F. Griffin of Young & Williams Lawyers for the defendant and applicant for contempt orders and Mr I. Shepherd for the alleged contemnors.
  2. The applications before me are by the first and second plaintiffs who are the alleged contemnors, to have the contempt proceedings dismissed.
  3. The contempt proceedings filed by way of Notice of Motion filed by Young & Williams Lawyers on 5th April, 2011, names the following persons as alleged contemnors. They are:

all being the registered directors of Yema Gaiapa Developers Limited ('Yema Gaiapa') for having been in contempt of orders made on 13th April, 2007.


  1. In the same Notice of Motion, the applicant names Mr Leslie Ako Kari, lawyer, to be in contempt of orders made on 13th April, 2007. A Victor Eu, registered proprietor of Uni Rise Limited is also alleged to be in contempt of Court Orders of 13th April, 2007. A further Notice of Motion filed on 5th April, 2011, names Kanawi Pouru to be in contempt of the orders of 13th April, 2007.
  2. On 10th May, 2011, Blake Dawson Lawyers filed Notice of Intention to Defend for and on behalf of alleged contemnors, Kevin Guba, Kendo Gigera, Lucas Bidapie and Bathol Mokare. On 16th May, 2011, Blake Dawson Lawyers filed a further Notice of Intention to Defend for and on behalf of Uni Rise Limited. On 12th April, 2011, Blake Dawson Lawyers filed further Notice of Intention to Defend for and on behalf of Kanawi Pouru.
  3. By Notice of Motion filed on 14th April, 2011, Blake Dawson Lawyers seek orders that the Notice of Motion dated 29th March, 2011 naming Kanawi Pouru as contemnor, be dismissed for not disclosing a cause of action, for being frivolous and vexatious and/or for being an abuse of the Court's process. It also seeks orders that the defendants pay the alleged contemnors' costs on an indemnity basis.
  4. By further Notice of Motion filed on 17th May, 2011, the contemnors seek orders pursuant to O.12 r.40 of the National Court Rules ('NCR') that the defendants' Notice of Motion for contempt dated 20th March, 2011 be dismissed as being frivolous and vexatious and/or being an abuse of process of the Court and for not disclosing a reasonable cause of action. They also ask for orders that the defendants pay the costs of the application on an indemnity basis.
  5. Mr Leslie Ako Kari, lawyer for the first and second plaintiffs, also seeks orders that the contempt proceedings be dismissed for being an abuse of process, pursuant to O.12 r.40 of the NCR. He also seeks further orders that Young & Williams Lawyers be restrained from acting as the defendants' lawyers as having a conflict of interest. These orders are sought by PNG Legal Services' Notice of Motion filed on 16th April, 2011.

The application


  1. The Notice of Motion for contempt against the named multiple contemnors, is for alleged breach of the Court Orders of 13th April, 2007.
  2. The various Statement of Charges filed against each contemnor is in relation to the following alleged breaches:
(i) Background Facts
  1. Yema Gaiapa is the holder of Timber Permit No. LF 5-1 for the Yema Gaiapa LFA, Morobe Province, issued to it by the PNGFA.
  2. On 29th October, 2004, Yema Gaiapa entered into an LMA with the defendant, Tzen Niugini, whereby Yema Gaiapa contracted Tzen Niugini to undertake the harvesting and extraction of timber for export and to convert some logs into sawn timber (the '2004 LMA').
  3. Soon thereafter in 2004, Tzen Niugini commenced its operations under the 2004 LMA.
  4. On 5th June, 2007, the 2004 LMA was reviewed and superseded by a further LMA between Yema Gaiapa and Tzen Niugini, which had a duration of four (4) years from 5th June, 2007 (the '2007 LMA').
  5. On 14th December, 2006, the plaintiffs instituted these proceedings (OS 901 of 2006) against Tzen Niugini.
  6. On 13th April, 2007, the National Court made orders by consent of the parties.
(ii) Consent Orders of 13th April, 2007
  1. This is the order that is in contention and which is alleged to have been breached by the alleged named contemnors. It is necessary that I set out the full terms of these orders; It reads:

"1. That the premium and Levies payable monthly after every shipment to the second plaintiff company by the defendant under a Logging and Marketing Agreement dated 29th October 2004 be paid in the following manner:-


1.1 That 50% of the premium and the levies due to the second plaintiff company using rates as stated in the Logging and Marketing Agreement be paid to the second plaintiff's account at the Waigani Brach of ANZ Bank Limited.

1.2 That 25% of the total sum due as premiums and levies stated above be retained by the defendant company to offset and reduce the advances paid to the plaintiffs and their agents and employees without any interest until fully reduced.

1.3 That 25% of the total amount of premiums and levies due to the second plaintiff company per shipment be paid to the Trust Account of PNG Legal Services to be used to settle all outstanding legal fees of all lawyers the plaintiffs have engaged since 1995 including itself until such time as all creditors are paid in full.

2. That all such payments referred to paragraph 1 above, be made within twenty-one (21) days after each shipment of logs is cleared for export and the ship and logs leave/departs PNG.


3. That unless frustrated by the weather and/or the plaintiff and their agents, the defendant shall cut and export the minimum monthly cubic meters of logs required under the Logging and Marketing Agreement and the Permit and the annual logging plan and the five year forest working plan.


4. The plaintiffs, their servants and agents including Bathol Mokare, Romas Mokare and members of the Lerewa Sub-Clan and Smith Aima and Nicholas Jigede from the Dengo Sub-Clan and Tony Guba and Cecil Guba from Yaravi Clan and all landowners from the Jinagisi, Yaravi, Kaemo, Ega Bawa, Ega Moinai, Ririu Clans and John Wesley from the Eruatutu Clan the Eruatutu Clan members and Lucas Bidapie of the Kaemo Clan and all landowners and persons within or from nearby the Timber Permit Area be restrained from interfering with the project and operations of the defendant company either within the project area or outside of same.


5. That from the date of these orders, the first defendant company is restrained from paying any advances either in kind or cash or otherwise to any person whether they be landowners or the second plaintiff company executives or any other persons directly or indirectly associated with the plaintiffs.


6. That the defendant or any person affected by these orders are at liberty to apply to the National Court to set aside or vary the said orders after giving all parties 3 days notice.


7. That the entry of these orders are abridged to the date of settlement by the Registrar which shall take place forthwith."


(iii) OS 708 of 2008
  1. The other proceedings mentioned in this application is OS 708 of 2008.
  2. By proceedings OS 708 of 2008 filed on 19th November, 2008 by PNG Legal Services, the following persons and entities are named:
  3. The Originating Summons in OS 708 of 2008 seeks the following orders:

"1. That the meetings conducted by the Second Defendants on the 1st of April 2008 and 14th September 2008 and any related or subsequent resolutions thereafter be declared null and void.


2. That any subsequent agreements, engagements or actions taken by the Second Defendants to commit the Plaintiff be declared null and void.


3. That the First Defendant be restrained from accepting and endorsing any changes to the Companies records held at the Company's Office.


4. That if it has then the Company remove such endorsement and changes.


5. That Tzen Niugini Ltd be restrained from removing any vehicle and logging equipment it has currently at the Wuwu base camp and that it be restrained from funding and taking any steps to financially support the Second Defendants.


6. That all documents lodged with the Registrar of Companies pursuant to the purported meeting of shareholders of Yema Gaiapa Developers Limited held on the 1st of April 2008 and 15th September 2008 are unlawful and void and shall not be registered by the Registrar of Companies and if already registered shall be de-registered forthwith.


7. That the Registrar of Companies being implicated in the proceedings, PNG Legal Services be granted leave pursuant to the Companies Act to charge and prosecute those involved in the fraudulent alterations.


8. The costs be met on a solicitor-client basis by the Tzen Niugini Ltd & John Guba & Lucas Bidaipie.


9. Such other and further Orders as the Court deems fit.


10. The time for the entry of Orders be abridged."


  1. It was on these proceedings that Consent Orders of 24th September, 2010 were taken out. These orders read:

"1. The Plaintiffs including Kendal Gegera and the Second Defendants namely


  1. John Guba
  2. Lucas Bidapie
  1. Bathol Mokare
  1. Bendick Boebae
  2. Alban Adari
  3. Davis Tovebae
  4. Ian Borere
  5. Helen Colin
  6. Aston Yaviro
  7. David Birigi and
  8. John David Orere

are all accepted as Directors and Executives and representative of shareholders of Yema Gaiapa Developers Ltd.


2. That John Guba and Bathol Mokare are appointed as Chairman and Deputy respectively and together with the directors to run the affairs of Yema Gaiapa Developers Ltd together with Second Plaintiffs on an interim basis to appoint a new contractor then conduct elections.


3. The position of Company Secretary will be decided during the First Meeting of the above shareholders and Directors.


4. That all documents filed to date with the Registrar of Companies ware withdrawn and fresh documents will be filed to reflect the Orders.


5. The proceeding herein (OS No. 708) is dismissed with the Plaintiff to meet any of the affected Defendants' costs on a party-party basis to be agreed unless agreed.


6. Time is abridged to the time of settlement by the Registrar which shall take place forthwith."


(iv) Logging and Marketing Agreement
  1. These are the 2004 LMA and 2007 LMA:

Clause 23 of the LMA provides for termination. It states at par.23.3 that;


"This Agreement shall terminate upon the termination for the Permit without prejudice to any right a party may have where such termination results from an expiration of a term referred to in clause 6."


(ii) 2007 LMA

Clause 6 of that LMA also states that the contractor will be given the first option to extend its LMA in the event that Permit is further extended. The contractor in this case is Tzen Niugini.


(v) Submissions by all parties
  1. Submissions by all counsel fall under several parts. These are:

According to the affidavit of Kevin Atkinson Guba sworn on 13th May, 2011 and filed on 17th May, 2011 by Blake Dawson Lawyers, the 2007 LMA was terminated pursuant to clauses 22 and 23 of the LMA. The termination notice is dated 25th February, 2008 and outlines the reasons why Yema Gaiapa terminated the LMA. These reasons were basically because of Tzen Niugini's non-compliance with the 2004 LMA where it did not build certain permanent structures; it logged without a Permit; it logged outside the LMA Permit Area and other general conditions. This notice of termination was served on Tzen Niugini on 26th February, 2008 at its Head Office located at Andakelka Village, Waigani. The copy of the acknowledge receipt note is also attached to the affidavit of Kevin Atkinson Guba.


(b) Court Proceedings and Consent Orders
  1. The affidavit of Jackie Lee, sworn on 25th March, 2011 and filed on 5th April, 2011 by Young & Williams Lawyers for and on behalf of Tzen Niugini Limited, deposes to the Court proceedings that were filed.
  2. The first Court proceedings are these proceedings OS 901 of 2006.
  3. In these proceedings OS 901 of 2006, the Originating Summons filed on 14th December, 2006, seeks orders in the exact same terms as the Consent Orders of 13th April, 2007, set out in full above.
(c) Contempt Proceedings
  1. In the earlier part of this decision, I set out a summary of the contempt proceedings against each contemnor and the orders they were alleged to have breached.
  2. Tzen Niugini alleges that since the order of 24th November, 2010 in proceedings OS 708 of 2008, and whilst the Court Order of 13th April, 2007 on OS 901 of 2006 are current and effective, and whilst the 2007 LMA was current, the plaintiffs took deliberate steps to interfere with Tzen Niugini's operations and signed another LMA with Uni Rise Ltd. Tzen Niugini alleges that this agreement interferes with its operations as it effectively replaces Tzen Niugini as the contractor whilst the 2007 LMA is current and has not expired.
  3. Tzen Niugin alleges that the plaintiffs and their lawyers had interfered with its operations when they deliberately breached the orders of 13th April, 2007 and that therefore, they should be punished for contempt.
(d) Application to dismiss
  1. Blake Dawson Lawyers filed 2 Notices of Motions seeking dismissal of the contempt proceedings. On 14th April, 2011, it seeks a dismissal of the contempt proceedings against Kanawi Pouru, application made pursuant to O.12 r.40 of the National Court Rules ('NCR'), that the Notice of Motion for contempt dated 29th March, 2011 be dismissed in that it does not disclose a cause of action, is frivolous or vexatious and/or is an abuse of the process of the Court.
  2. The Motion also seeks costs of the application on a full indemnity basis.
  3. On 17th May, 2011, Blake Dawson Lawyers filed a further Notice of Motion seeking a dismissal of the defendants' Notice of Motion for Contempt dated 28th March, 2011, such dismissal made pursuant to O.12 r.40 of the NCR, that it be dismissed on the grounds that it does not disclose a cause of action, that it is frivolous or vexatious and/or that it is an abuse of the process of the Court.
  4. The Notice of Motion also seeks payment of costs on a full indemnity basis.
  5. The Contemnors named in that Notice of Motion are:
  6. O.12 r.40 of the NCR reads:

"40. Frivolity, etc. (13/5)


(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 –

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)."
  1. The Courts have, in this jurisdiction, continuously held that the Court is entitled to dismiss any claim or action if it is an abuse of process under this provision and numerous cases have been so dismissed.
  2. What constitutes an abuse of process is determined on the facts of each case and there is no set criteria. There have also been definitions of such, as set out in the case of Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8, where His Honour Sevua .J defined "frivolous" and "vexatious" by adopting the definitions in the text, Supreme Court Civil Procedure New South Wales, 2nd Edition, by Young, O'Leary & Hogan, 1987, Butterworths, at pp 130-133 as follows:

"Frivolous", by its ordinary meaning means, "not worth serious attention or manifestly futile." Proceedings which disclose no reasonable cause of action as well as proceedings which are otherwise unsustainable are frivolous in this sense. In its ordinary meaning, "vexatious" means, "causing vexation or harassment." It is used to describe the harassment of a defendant being put to the trouble and expense of defending proceedings which are either a mere sham, or which cannot possibly succeed. As to the abuse of process argument, it is said on p131 that the use of the Court process to pursue proceedings which disclose no reasonable cause of action, or which are frivolous or vexatious, is clearly an abuse of process."


  1. In the case of Don Polye v Jimson Papaki & Ors (2000) SC 637, the Court said:

"This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly, any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process."


  1. Both Messrs Kari and Shepherd submit that the contempt proceedings are an abuse of process, frivolous and vexatious and that no cause of action is disclosed.
  2. For the Court to determine one way or another, the Court must revisit the Notices of Motion for Contempt filed against the alleged contemnors. These are the Notices of Motion filed on 5th April, 2011 by Young & Williams Lawyers which names alleged contemnors whose names I have already stated above, 15 in all. The next Motion is that also filed on 5th April, 2011 by Young & Williams Lawyers, naming Kanawi Pouru as the alleged contemnor. He is also alleged to have breached the Court Orders of 13th April, 2007.
  3. Both Leslie Kari, lawyer and Victor Eu, Director of Uni Rise Ltd, are named as alleged contemnors in the Notice of Motion filed by Young & Williams Lawyers on 5th April, 2011, for having allegedly breached Court Orders of 13th April, 2007.
  4. I again reiterate what I stated above which is that Tzen Niugini alleges that whilst the 2007 LMA was current, all alleged contemnors executed the LMA of 19th November, 2010 between Yema Gaiapa and Uni Rise Ltd.
  5. I have heard submissions from Messrs Shepherd and Kari that the allegations in the Statement of Charge are not correct; that the Court Order of 13th April, 2007 was not current as alleged by Tzen Niugini and that therefore there is no cause of action, that the contempt proceedings are frivolous and vexatious and also an abuse of process.
  6. The orders of 13th April, 2007 are by consent. They are in the exact same terms as the Originating Summons. After the orders were made, the action was brought to an end. The orders did not state that Yema Gaiapa was to continue to engage Tzen Niugini for the duration of the project, nor did it say that Tzen Niugini will be the only contractor for the project. In fact, the 2007 LMA was not affected by the orders of 13th April, 2007.
  7. Thereafter, the 2007 LMA was terminated pursuant to clauses 22 and 23. This Notice of Termination is before me in evidence dated 25th February, 2008. It is attached to the affidavit of Kevin Atkinson Guba sworn on 13th May, 2011 and filed on 17th May, 2011. Tzen Niugini did not challenge the termination.
  8. Subsequently, in proceedings OS 708 of 2008 and Court Order of 24th September, 2010, all parties to those proceedings, who are also parties to these proceedings, were ordered to comply with the Consent Orders of 13th April, 2007 which included the recognition of Kevin Atkinson Guba as Director together with other named plaintiffs. Other persons named in the orders were also named as Directors of the second plaintiff. There was a further order also that the second plaintiff or Yema Gaiapa, appoint a new contractor to develop the Yema Gaiapa LMA area. Tzen Niugini was named as fourth defendant in those proceedings.
  9. This was followed by the execution of the LMA with Uni Rise Ltd on 19th November, 2010.
  10. As far as I can tell, the orders of 13th April, 2007 had long ceased. I do not see how Tzen Niugini can maintain that the orders of 13th April, 2007 had been breached.
  11. I say this because Tzen Niugini did not challenge the termination of the LMA. Although, it did take out restraining orders, it withdrew the case. The Consent Orders in OS 708 of 2008, allowed or permitted Yema Gaiapa to secure the services of a new developer. When it did that, the Orders of 13th April, 2007 were not current. The plaintiffs need not have taken steps to vary the orders because there was no need to.
  12. Principles on dismissal of proceedings are well settled in the Common Law jurisdiction of which PNG is a part of. There are numerous cases dealing with staying or dismissal of proceedings based on O.12 r.40(1), which is identical to O.25 r.4 of the English Rule of the Supreme Court 1803 and NSW Supreme Court Rules 1970.
  13. Lindley, MR, in Hubbuck & Sons Ltd v. Wilkinson Heywood & Clark Ltd [1989] 1 QB 86 at 90-91, [1895-9] All ER Rep 244 at 247, in discussing the two courses open to a defendant in a situation where the pleadings show no cause of action or defence, said of the second option, which is the summary procedure as in the present application; "it is only appropriate to cases which are plain and obvious so that the master or Judge can say at once that the Statement of Claim as it stands, is insufficient, even if proved, to entitle the plaintiff to what he ask." I note this case was referred to by Sheehan .J in PNG Forest Products Pty Ltd & Inchape Berhad v. The State and Jack Genia [1992] PNGLR 85.
  14. In Dyson v. Attorney-General [1910] UKLawRpKQB 203; [1911] 1 KB 410 at 414, 419, Fletcher Moulton LJ was of the view that it should be confined to cases where the cause of action was obviously and almost incontestably bad. He said, "To my mind, it is evident that our judicial system should never permit a plaintiff to be driven from the judgment seat in this way without any Court having considered his right to be heard, except in cases where the cause of action was obviously and almost incontestably bad." In Nagle v. Feilden [1966] 1 All ER 689 at 697; [1966] 2 QB 633 at 651, Salmond LJ said, "It is well settled that a Statement of Claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable. Accordingly, it is necessary to consider whether or not this plaintiff has an arguable case."
  15. Lord Wilberforce said in Allen v. Gulf Oil Refining Ltd [1980] UKHL 9; [1981] 1 All ER 353 at 355; [1981] AC 1000 at 1010-111, "My Lords, I and other of your Lordships have often protested against the procedure of bringing, except in clear and simple cases, points of law for preliminary decision. The procedures indeed exist and are sometimes useful. In other cases,...they do not serve the cause of justice...".
  16. An order dismissing proceedings on the ground that no reasonable cause of action is disclosed will be made only in plain and obvious cases where the claim is obviously unsustainable. That, in essence, is the principle in Hubbuck's case. It is not a sufficient ground to dismiss cases where the proceedings disclose some cause of action, even though the case may be weak or not likely to succeed. (See Wenlock v. Moloney [1965] 2 All ER 821).
  17. Tzen Niugini submits through its lawyer that it was whilst the order of 13th April, 2007 was current, that the plaintiffs and alleged contemnors then terminated the 2007 LMA and entered into the agreement with Uni Rise (my emphasis). When the Consent Orders were issued on 24th September, 2010, the plaintiffs named in these proceedings were not named as directors of Yema Gaiapa. But even if they were still directors and shareholders, the Consent orders of 13th April, 2007 had brought the proceedings to an end. Additionally, clause 2 of the Consent Orders of 24th September, 2010 in OS 708 of 2008, "allowed" Yema Gaiapa to appoint a new contractor, which it did on 19th September, 2010. Tzen Niugini was a party to those Consent Orders as fourth defendant. The evidence and good records in the Court file show that Tzen Niugini did not challenge those orders. (my emphasis)
  18. Another leg of submissions brought by Mr Kari is that Tzen Niugini has not come to Court with clean hands, having attempted in other proceedings to raise the same issues. These were proceedings MP 8 of 2011 where Tzen Niugini attempted to wind up Yema Gaiapa, alleging monies totalling K1. 014 million were owed to it. This matter went before His Honour Justice Kandakasi who refused to grant the winding up orders finding that Yema Gaiapa had not breached the orders and that Tzen Niugini was abusing the Court's process. Another set of proceedings OS 348 of 2008, Tzen Niugini Ltd v Yema Gaiapa Developers Ltd, Kanawi Pouru as Managing Director of PNG Forest Authority and PNG Forest Authority was filed where Tzen Niugini sought a Declaration in one of its reliefs, that the termination of the LMA was contemptuous. This action was not pursued any further.
  19. According to Mr Kari, this is third time Tzen Niugini has brought contempt proceedings against all former directors, directors and the Managing Director of the PNG Forest Authority. It clearly raises the argument that there is a multiplicity of proceedings covering the same issues. Obviously, this is an abuse of process.
  20. Another factor that stands out is that Kanawi Pouru, the Managing Director of the PNG Forest Authority and Leslie Kari, Lawyer, are not parties to the proceedings OS 901 of 2006. Contempt proceedings should not have been brought against them.
  21. The law is that if you want equity, you must come with equity. You must come with clean hands or you must strictly comply yourself (see Kiua Nikints v Moki Mokints [1990] PNGLR 123 per Woods .J).
  22. The Court has a discretion whether to award or not to award/grant the reliefs sought. It is not a right given by law. Parties must come to Court with clean hands if they are seeking equitable reliefs (see also In the matter of Yabo Sabo for Nagila Clan of Namele in Madang Province [1995] PNGLR 13 at pg.16).
  23. As far as I can tell, proceedings OS 901 of 2006 has come to end by the signing, endorsing and entry of the Consent Orders of 13th April, 2007. No other applications should be brought on these proceedings because those orders do not say that Tzen Niugini is the only contractor for the Yema Gaiapa project. The plaintiffs and alleged contemnors have not breached any orders.

Formal Orders


62. I find that the contempt proceedings are brought in relation to orders that were not in existence or current as claimed in the Notice of Motion and Statement of Charges referred to above. It follows that the contempt proceedings are frivolous and vexatious; they do not disclose a reasonable cause of action and they are an abuse of the Court's process. They must be dismissed.


63. In relation to costs, these proceedings were brought by Tzen Niugini, knowing full well that Yema Gaiapa had the option to secure the services of new developer. It did that after it terminated the agreement of 2007 with Tzen Niugini. Tzen Niugini should not have filed these contempt proceedings which are only a repeat of other applications. It must be prepared to pay the consequences of its actions, one of which is to pay the winning party its costs, on a full indemnity basis.


64. I will not rule on the orders sought by Mr Kari in relation to Mr Griffin and Young & Williams Lawyers having a conflict of interest because it is a fairly substantive issue which requires proper submissions and careful consideration. If Mr Kari wishes to pursue this part of his application, then I give him that liberty to do so, but on 7 days notice to the other parties who will be affected.


65. These are the formal orders:


(1) The Notices of Motion filed by Young & Williams Lawyers naming the following persons as Contemnors, are dismissed. These persons are;

(2) Mr Lesly Kari is at liberty to later pursue his application to have Young & Williams Lawyers disqualified or restrained from acting for Tzen Niugini Limited and can do so, on 7 days notice to all parties who will be affected by this application.

(3) Tzen Niugini Limited shall pay on a full indemnity basis, the costs of the above named persons, to be taxed if not agreed.

_______________________________________________________


Blake Dawson Lawyers: Lawyer for the Contemnors

PNG Legal Services: Lawyer for the First and Second Plaintiffs

Young & Williams Lawyers: Lawyer for the Defendant

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