Graham v Tonga [2013] PGNC 213; N5384 (15 May 2013)

N5384

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO.57 of 2013

BETWEEN:

JAMIE MAXTON-GRAHAM
Plaintiff

AND:

HONOURABLE, WILLIAM TONGAMP
First Contemnor

AND:

SIMON NIGI, Provincial Police Commander for Jiwaka Province
Second Contemnor

AND:

SALE BUNAT, Provincial Election Manager for Jiwaka Province in the 2012 National Election
Third Contemnor

AND:

FABIAN TUMU
Fourth Contemnor

AND:

PAUL KAMAN
Fifth Contemnor

AND:

MICHAEL KENGI
Sixth Contemnor

AND:

MICHAEL W. POLE
Seventh Contemnor

AND:

JAMES BOMBIE
Eighth Contemnor

Mt. Hagen : David, J
2013: 10, 13 & 15 May

CIVIL PRACTICE & PROCEDURE – objection to filing and service of amended originating summons and amended statement of charge – contempt proceedings - service effected a day before trial on contemnors' lawyers - proceedings fixed for trial by consent of parties - amended originating summons and amended statement of claim filed and served without leave – proceedings ordered by National Court, Waigani to be heard together with election petition proceedings commenced by plaintiff against first contemnor – ruling on objections to competency of election petition filed by both respondents in election petition proceedings deferred due to contempt proceedings – application for leave made orally on date fixed for trial following objection by contemnors – objection upheld – trial to proceed based on original documents – costs in the cause - National Court Rules, Order 1 Rules 6, 7 and 8, Order 4 Rules 31 and 35, Order 6 Rules 1, 4, 7 and 8, Order 8 Rules 6, 50, 51 and 58, Order 14 Rules 43 and 45.

Cases cited

New Guinea Limited v Thomason [1975] PNGLR 454
Komboro George v Motor Vehicles Insurance (PNG) Trust (1993) PNGLR 477
Steamships Trading Co Ltd v Garamut Enterprises Ltd (2000) N1959
The Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273
Michael Kewa v Elias M. Kombo (2004) N2688
Niugini Mining Limited v Joe Bumbandy (2005) SC804
William Duma v Eric Meier (2007) SC898
Michael Pundari v Niolam Security Ltd (2011) SC1123

Treatises cited:

Halsbury's Laws of England, Vol. 36 (1), 4th Edition (Reissue)
Concise Oxford English Dictionary, 11th Edition

Counsel:

Tony Yamarhai, for the Plaintiff
Michael Kuma, for the Contemnors

RULING

1. DAVID, J: This is a ruling on an objection by the contemnors on the filing and service of an Amended Originating Summons and an Amended Statement of Charge both filed on 9 May 2013 (the amended documents) on the eve or just before the trial of this matter was to due commence as scheduled on Friday, 10 May 2013 at 9:30 am here. The Plaintiff contested the objection. When I handed down my extempore ruling, I indicated that I would give the amplified version of my ruling in writing at a later date which I now do.
   

2. The order which is alleged to have been breached for which the Plaintiff says the contemnors should be punished for being in contempt of court is that which was made on 12 September 2012 (hereafter called "the subject order") in connection with the election petition proceedings, EP No.97 of 2012 involving the Plaintiff there as Petitioner, the Electoral Commissioner, Andrew Trawen as the First Respondent and the First Contemnor there as the Second Respondent (the election petition proceedings).

3. Mr. Kuma of counsel for the First, Second, Fourth, Fifth, Sixth, Seventh and Eighth Contemnors (hereinafter referred to as "the contemnors") informed the Court that he was served the amended documents in the courtroom before the Court convened.

4. Mr. Yamarhai of counsel for the Plaintiff in response informed the Court that the amended documents were served on the contemnors through their lawyers, Parua Lawyers the day before on 9 May 2013. He said an affidavit of service confirming service of the amended documents on the contemnors' lawyers was yet to be filed.

5. I heard oral arguments without any supporting affidavit material from both sides. I have had a look at the originating summons and the statement of charge both filed on 12 February 2013 (the original documents) and the amended documents though. Under the circumstances, I have also consulted the Court file for these proceedings for records of previous interlocutory applications and my note book for the April 2013 Minj circuit which I would not have otherwise consulted. This ruling is therefore based on the pleadings in those documents, the Court's own records and the oral submissions of counsel.

6. The contemnors essentially raise six points of objection and these are:

1. the amendments should be disallowed and the amended documents rejected for the Plaintiff's failure to obtain leave of the Court under Order 8 Rule 50 (1) of the National Court Rules;
   
2. The amendments were done after pleadings had closed therefore improper;
   
3. the amended documents were not personally served on the contemnors as is required by Order 14 Rule 45, Order 6 Rule 8 (1)(b) and Order 8 Rule 58 of the National Court Rules.
   
4. The amended documents plead facts not in relation to the alleged breach of the subject order, but are focused on the burning of ballot papers for the Jiwaka Provincial Electorate (the ballot papers) and the amendments were bad or improper as they were an attempt to connect these proceedings with matters currently in the domain of the police;
   
5. criminal investigations and prosecutions are currently under way in connection with the burning of the ballot papers and the amendments will cause real prejudice or injustice to the Fifth, Sixth and Eighth Contemnors because they have been implicated, arrested and charged in connection with the burning of the ballot papers and their cases are currently being processed through the committal hearings conducted by the Mt. Hagen District Court;
   
6. these proceedings were about the alleged disobedience of the subject order and not about contempt committed in the face of the Court.
   
7. The Plaintiff in response contended that:
   
   1. the amendments were done within the ambit of Order 8 Rule 50 of the National Court Rules particularly under sub-rule 1 which permitted amendments of documents to be done at any stage of any proceeding;
      
   2. the amendments could be done without leave if it were necessary to determine the real question in controversy between the parties under Order 8 Rule 50 (2) of the National Court Rules;
      
   3. personal service of the amended documents on the contemnors was not required as they were properly served on their lawyers on record which is permitted by Order 6 Rule 8 of the National Court Rules;
      
   4. police investigations and prosecution of some of the contemnors was a different matter as they relate to allegations of conspiracy to destroy evidence and arson which were unrelated to these proceedings;
      
   5. if amendments were improperly done, then leave be granted to accept these documents as filed and trial should proceed based on the amended documents;
      
   6. the amendments relate to contempt committed in the face of the court and outside of the court.
      

8. These proceedings were transferred from Waigani National Court and brought before me at Minj on 10 April 2013 when I was conducting the 4 weeks Minj National Court circuit last month to be dealt with together with the election petition proceedings through an order obtained at the Waigani National Court on 5 April 2013. The terms of the order read:

"1. The proceedings OS No.57 of 2013 herein be transferred to the National Court sittings in Minj to be dealt with together with EP No.97 of 2012 by Justice David.

2. The Registrar to create a dummy file and furnish it to the Plaintiff's lawyers to deliver to Justice David's Associate in Minj.
   
3. Matter is fixed for mention and hearing before Justice David on Wednesday, 10th April 2013 at 9:30 am.
   
4. Time for settlement of this order is abridged forthwith."
   

9. The Minj circuit was split; the first two weeks was to deal with the hearing of the election petition proceedings and the balance of the circuit to deal with crimes cases. I was dealing with a number of applications in connection with the election petition proceedings before proceeding to hear two objections to competency of the petition filed by the Electoral Commissioner and the First Contemnor which I eventually completed hearing and reserved my ruling indefinitely subject to the completion of the hearing of these proceedings. I had proposed in Minj that I would deliver my ruling in relation to the objections to the competency of the petition in the election petition proceedings and the decision concerning the substantive hearing of these proceedings on a date to be fixed at the conclusion of the hearing of these proceedings preferably in Minj.

10. The original documents and supporting affidavit material had not been personally served on the contemnors in accordance with Order 14 Rule 45 of the National Court Rules at the time for one reason or another. So the Plaintiff on 17 April 2013 made application by his amended notice of motion filed on 16 April 2013 for orders, inter alia, for substituted service particularly on the Fourth to Eighth Contemnors which was contested, joinder of three other persons as additional contemnors, and the removal of the Third Contemnor, Sale Bunat as a party to the proceedings because he was deceased (hereafter called "the application for substituted service"). On 19 April 2013, I granted the application for substituted service and made relevant orders as to how service was to be effected on the Fourth to Eighth Contemnors including publication of the orders in the Post Courier and the National, the joinder application was refused and the Third Contemnor was removed as a party (hereafter called "the order for substituted service"). I then adjourned the proceedings to 26 April 2013 at 01:30 pm to be further dealt with. No real issue was raised about personal service of the First and Second Contemnors.

11. An affidavit of publication sworn by Michael N. Wilson on 24 April 2013 was handed up at the hearing on 26 April 2013 confirming publication of the order for substituted service on 23 April 2013 in the Post Courier and The National respectively.

12. All the contemnors appeared before the Court on 26 April 2013. Mr. Kuma confirmed that his firm, Parua Lawyers had received instructions to act for all the contemnors and undertook to file formal notices of legal representation by his firm soon thereafter. Notices of Appearance to act for all the contemnors were filed; one on 18 April 2013 for the First Contemnor and the other on 30 April 2013 for the Second, Fourth, Fifth, Sixth, Seventh and Eighth Contemnors. A notice of intention to defend these proceedings was also filed by Parua Lawyers on behalf of all the contemnors on 10 May 2013. The notices of appearance state that all documents in these proceedings can be served on the contemnors' lawyers and the address for service of documents is given as Parua Lawyers, Suite 1107, 11th Floor, Pacific View Apartments, Pruth Street, 2 Mile Hill, PO Box 900, Port Moresby 121. The notice of intention to defend contains similar information.

13. I am satisfied that any document required or permitted to be served in these proceedings whether they are amended or not can be served on the lawyers who have given their formal notices of appearance or notice of intention to defend and at the address for service indicated in those notices. This is allowed by Order 6 Rules 1, 4, 7 and 8 of the National Court Rules if personal service is not required. The requirement for personal service under Order 14 Rule 45 of the National Court Rules has already been accommodated or subsumed by the order for substituted service. The proceedings have been instituted and service done. It should no longer be an issue. The contention by Mr. Kuma with respect to this point is therefore misconceived.

14. On 17 April 2013, the First Contemnor also made application through his notice of motion filed on 1 March 2013 for orders to dismiss the entire proceedings for want of personal service and for being an abuse of the process of the court. This application was moved before the Plaintiff's application for substituted service was moved because it was filed first in time. I dismissed the application.

15. Should I disallow the amendments and reject the amended documents because the plaintiff has failed to obtain the leave of the Court?

16. The power of the Court to either grant or not to grant leave to amend documents in the proceedings is derived from Order 8 Rule 50 of the National Court Rules. This rule permits amendments to be made in any document in the proceedings at any stage of any proceedings, the purpose of which is to determine the real questions in controversy between the parties. It is not confined to pleadings as is the case in Order 8 Rule 51. Sub-rule (1) of the rule provides that at any stage of the proceedings, the Court may grant leave to a party to make an amendment to any document in the proceedings either on application of a party or of its own motion in such manner as the Court thinks fit. Sub-rule (2) then provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

17. The word "document" is defined in Order 1 Rule 6 of the National Court Rules. It " includes any record of information, whether legible by eye or not."

18. Order 8 Rule 51 of the National Court Rules (amendment of pleading without leave (20/2)) relates to amendment of pleadings without leave. Sub-rule (1) of that rules states:

"A party may, without leave, amend any pleading of his once at any time before the pleadings are closed."

19. This rule firstly, applies only to pleadings; secondly, an amendment to a pleading may be made without leave before the pleadings are closed; and thirdly, a pleading may be amended once only.

20. In Halsbury's Laws of England, Vol. 36 (1), 4th Edition (Reissue) at paragraph 1, the term 'pleading' is given the following meaning:

"The term 'pleading' is used in civil cases to denote a document in which a party to proceedings in a court of first instance is required by law to formulate in writing his case or part of his case in preparation for the hearing."

21. The word "pleading" is defined in Order 1 Rule 6 of the National Court Rules. It 'does not include a writ of summons, an originating summons or a notice of motion'.

22. It has been held that pleadings apply only in actions begun by writ of summons and not by any other mode: Steamships Trading Co Ltd v Garamut Enterprises Ltd (2000) N1959; Michael Pundari v Niolam Security Ltd (2011) SC1123.

23. Moreover, unless directed or ordered by the Court under Order 4 Rules 31 and 35 of the National Court Rules, there are no pleadings in proceedings commenced by originating summons: see William Duma v Eric Meier (2007) SC898.

24. Pleadings which can be amended without leave under Order 8 Rule 51 of the National Court Rules in a case commenced by a writ of summons are; the plaintiff's statement of claim, the defendant's defence, the plaintiff's reply to the defendant's defence, a cross-claim in proceedings commenced by writ of summons, defence to a cross-claim, et cetera. Pleadings subsequent to a reply can only be filed with the leave of the Court: Order 8 Rule 6 of the National Court Rules.

25. Clearly, for purposes of Order 8 Rule 50 of the National Court Rules, an originating summons is a document which is not a pleading.

26. So if an originating summons is to be amended, leave has to be sought. It is not disputed that leave was not sought to amend that document.

27. Is a statement of charge a pleading for purposes of Order 8 Rule 51 of the National Court Rules?

28. According to Order 14 Rule 43 of the National Court Rules, a statement of charge "is a statement specifying the contempt of which the contemnor is alleged to be guilty." The phrase "statement of charge" is not defined elsewhere under the National Court Rules.

29. I have consulted the Concise Oxford English Dictionary, 11th Edition for assistance and amongst the definitions given for the word "statement", it is:

"a definite or clear expression of something in speech or writing" or "a formal account of facts or events, especially one given to the police or in court."

30. The word "writing" is defined in Order 1 Rule 6 of the National Court Rules. It 'includes, subject to Order 2 Division 3 (which relates to documents generally), any mode of representing or reproducing words in a visible form and "written" has a corresponding meaning.'

31. So taking into account the terms of Order 14 Rule 43 of the National Court Rules and the definitions of the word "statement" in the Concise Oxford English Dictionary and the definitions of the words "document" and "writing" in Order 1 Rule 6 of the National Court Rules, a statement of charge, could be described as a document containing written statements specifying the contempt of which the contemnor is alleged to be guilty.

32. It follows therefore that, for purposes of Order 8 Rule 50 of the National Court Rules, the statement of charge is a document.

33. Moreover, a statement of charge filed pursuant to an originating summons cannot be a pleading for purposes of Order 8 Rule 51 of the National Court Rules, as an originating summons pursuant to which it is filed is itself not a pleading.

34. So, if it has to be amended, it is my respectful view that leave has to be sought under Order 8 Rule 50 (1) of the National Court Rules.

35. I would disallow the amendments and reject the amended documents on the basis that leave has not been obtained.

36. The contemnors' contention that the amendments to the original documents were done after pleadings had closed is therefore misconceived.

37. Since the Plaintiff contends that; the amendments were done within the ambit of Order 8 Rule 50 of the National Court Rules particularly when sub-rule 1 permitted amendments of documents to be done at any stage of any proceeding and that the amendments could be done without leave if it were necessary to determine the real question in controversy between the parties under sub-rule 2, I will make these additional observations.

38. At the outset, I note that the Plaintiff has not sought to dispense with the requirements of the National Court Rules by the invocation of Order 1 Rule 7 of the National Court Rules, but has asked the Court to validate the filing of the amended documents nevertheless. Moreover, the combined effect of Order 1 Rules 7 and 8 of the National Court Rules is that they give the Court a considerable discretion to declare the filing of the amended documents void since leave of the Court was not obtained under Order 8 Rule 50 (1) of the National Court Rules. Order 1 Rules 7 and 8 of the National Court Rules are of general application to all the rules in the National Court Rules and the interest of justice is the paramount consideration in exercising the discretion vested in the Court by these rules: Niugini Mining Limited v Joe Bumbandy (2005) SC804. The Supreme Court in Niugini Mining Limited however cautioned that the discretion under those rules must be exercised with restraint or sparingly for to do otherwise could make a complete mockery of the rules and introduce double standards in dealing with compliance issues.

39. The Plaintiff, it seems, is relying on the Court's power to amend documents on its own motion. That is not proper in my view when the amended documents have already been filed and served on the contemnors although the contemnors were short served and done at the eleventh hour. The Court was not given the opportunity to exercise its discretion on its own motion. I think the Plaintiff is caught by his own conduct.

40. The Plaintiff's contention that the filing of the amended documents could be done without leave of the Court so long as it was done for the purpose of determining the real questions arising as between the parties as is envisaged by Order 8 Rule 50 (2) of the National Court Rules, is misconceived. This is because, unless the Court acts on its own motion, leave is required under Order 8 Rule 50 (1) of the National Court Rules. The consideration raised by Order 8 Rule 50 (2) of the National Court Rules is a relevant matter to be taken into account in the exercise of the Court's discretion in determining an application to amend a document in the proceedings.

41. Notwithstanding my previous observations, I will consider the Plaintiff's request by applying the established principles of amending documents under Part 2, Division 4 (Amendment) of the National Court Rules to the circumstances of this case.

42. The Court's power under Order 8 Rule 50 of the National Court Rules, is discretionary and broad, and in exercising that discretion, the Court has the duty to do so judicially and on proper principles, so that justice is done in the case even at the late stage of the proceedings: see New Guinea Limited v Thomason [1975] PNGLR 454; Komboro George v Motor Vehicles Insurance (PNG) Trust (1993) PNGLR 477.

43. Eight considerations are usually taken into account when deciding whether or not to grant leave to amend a document in a proceeding. They are set out in The Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273 and Michael Kewa v Elias M. Kombo (2004) N2688 and these are:

1. Will the amendment enable the Court to determine the real question in controversy between the parties?

2. Will the amendment correct any defect or error in the proceedings?

3. Will the amendment cause real prejudice or injustice to other party?
   

4. Is the application for such amendment made mala fide or bona fide?

5. Can the other party be fairly compensated with costs for such amendment?

6. Is the party applying prevented by its conduct or the manner in which the proceedings have been progressed from being permitted to amend its pleadings?

7. Where do the interests of justice lie?
   
8. Is the proposed amendment efficacious? That is, is it a proper amendment?
   

44. I will apply the eight considerations in the order as they are set out above in the following manner:

1. No. The pleadings in the original documents already raise the principal issue of whether or not each contemnor was in contempt of court with respect to the breach or otherwise of the subject order. The question whether the acts of contempt alleged can be categorized as civil contempts (breach of orders in connection with proceedings in the Court) or criminal contempts (contempts committed in the face or hearing of the court) is a matter for determination at the substantive hearing.

The amendments in the Amended Originating Summons include; the renumbering of the contemnors due to the removal of the late Sale Bunat as a contemnor and the resulting omission of claim number 3 in its entirety; and the insertion at line three of the renumbered claims 1 to 7 after the year "2012" the phrase "and the subsequent burning of ballot papers on 21st September 2012 to interfere with the course of justice".

The amendments in the Amended Statement of Charge also include; the renumbering of the contemnors; the reference to the late Sale Bunat as a non-contemnor throughout the document; the insertion of the phrase "and the subsequent burning of ballot papers on 21st September 2012 to interfere with the course of justice" after the bracket ("the Court Orders") and before the word "are" in the introductory statement at the beginning of the document; and additional facts with respect to the burning of the ballot papers including conspiracy to commit arson, celebrations after the arson, payment of one of the contemnors for his part in the arson and to flee into the bush with two others to avoid arrest, amendments to a couple of existing acts of contempt and further acts of contempt are pleaded.

2. The renumbering of the contemnors in the amended documents and the reference to the late Sale Bunat as a non-contemnor throughout the Amended Statement of Charge is of no great consequence. My observations with respect to the first consideration are adopted and applied here.

3. Yes. It is not disputed that criminal investigations and prosecutions are under way in relation to the burning of the ballot papers and some of the contemnors have been arrested with committal hearings currently being conducted. The contemnors were prepared for trial on the basis of the original documents and supporting affidavit material already served which was fixed by consent of all parties as a special fixture here as the hearing of the election petition proceedings was affected by these proceedings.

4. No proper or formal application was made by the Plaintiff to amend the original documents under Order 8 Rule 50 (1) of the National Court Rules and the Plaintiff did not seek the dispensation of the rules under Order 1 Rule 7 of the National Court Rules. It is an oral application made at the eleventh hour before the trial was scheduled to begin due to the objection raised by the contemnors. However, the application could be viewed as being made bona fide despite its belatedness.

5. This was not addressed by the Plaintiff.

6. Yes. The Plaintiff consented with the contemnors on 26 April 2013 at Minj for an expedited hearing of this matter here on Friday, 10 May 2013 at 9:30 am. It is not disputed that the Plaintiff withdrew contempt proceedings instituted by motion on notice against the First Contemnor in the election petition proceedings with respect to the same subject matter in November 2012. Since the filing of these proceedings on 12 February 2013 and before the special fixture was confirmed on 26 April 2013 or even before 10 May 2013, the Plaintiff has had ample time to file and move an application to amend the original documents under Order 8 Rule 50 (1) of the National Court Rules. Instead, he on 9 May 2013 filed the amended documents and served them without leave. Time was of the essence in conducting the trial because the progress of the election petition proceedings which is now part heard is affected by these proceedings.

7. The interests of justice lie in favour of conducting the trial of these proceedings without further delay. It is affecting the hearing of the election petition proceedings. I repeat what I have already said about the criminal investigations and prosecutions with respect to the burning of the ballot papers.

8. No, in the context of my observations with respect to the first consideration which I adopt and apply here. I have already found that the Plaintiff's conduct is wanting.

45. Taking into account how I have applied the eight considerations to the circumstances of the present case, my discretion will be exercised in favour of the contemnors.

46. For all these reasons, I will not validate the amended documents under Order 1 Rules 7 and 8 of the National Court Rules as well.

47. These proceedings will have to be tried based on the original documents.

48. The formal orders of the Court are:

1. the contemnors' objection is upheld;

2. these proceedings will be tried based on the original documents, i.e., the originating summons and the statement of charge both filed on 12 February 2013;

2. costs shall be in the cause.

Ruling accordingly.
______________________________________________________
Warner Shand Lawyers: Lawyers for the Plaintiff
Parua Lawyers: Lawyers for the Contemnors