N5500

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 297 OF 2011

MADANG COCOA GROWERS EXPORT CO LIMITED
Plaintiff

V

NOILAI GUNAR
First Defendant

GEE GUNAR
Second Defendant

MADANG PROVINCIAL GOVERNMENT
Third Defendant

RE CHARGES OF CONTEMPT OF COURT AGAINST

GEE GUNAR
First Contemnor

BERNARD ALVIN LANGE
Second Contemnor

MADANG PROVINCIAL GOVERNMENT
Third Contemnor

Madang: Cannings J
2013: 11, 12 December,
2014: 22 January, 14 February

CONTEMPT – disobedience contempt – alleged failure to comply with court order to vacate a warehouse and allow plaintiff exclusive occupation of it – alleged failure to comply with court order to pay specified sums of compensation to plaintiff "forthwith" – whether the order was clear and unambiguous – whether order served on contemnors – whether contemnors failed to comply – whether failure to comply was deliberate.

The Court made various orders in the course of civil proceedings including, on 25 June 2012, that the defendants vacate a warehouse by 31 July 2012 and allow the plaintiff to have exclusive occupation of it until 31 July 2014 and on 16 August 2013 that the second defendant pay K8,124.00 compensation to the plaintiff forthwith and the third defendant pay K97,488.00 compensation to the plaintiff forthwith. The plaintiff on 12 September 2013 filed a motion seeking punishment of three persons (including two of the defendants) for contempt of court on the ground that each of them had disobeyed the orders of 25 June 2012 and 16 August 2013.

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;
•	it was properly served; and
•	there was a deliberate failure to comply.

(2)	All orders were clear and unambiguous in that, as to the order of 25 June 2012, the plaintiff had the right to exclusive occupation of the warehouse and the defendants were required to vacate it by the stipulated date and, as to the order of 16 August 2013, the amounts of compensation were to be paid "forthwith".

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

(4)	The third element gives rise to three issues:

•	was there a failure to comply?
•	who failed to comply?
•	was it deliberate?

(5)	There was no failure to comply with the 25 June 2012 order, so all contemnors were found not guilty of the charge relating to that order.

(6)	There was a failure by all contemnors to comply with the 16 August 2013 order. However, each of them had made reasonable efforts to comply with the order as soon as practicable and by the time of trial had paid in full or substantially the amounts of compensation required to be paid. The failure to comply with the order of 16 August 2013 was determined to be not deliberate. Therefore the contemnors were found not guilty of the charge relating to that order.

(7)	As the contemnors had all failed to comply with the order of 16 August 2013 and there was no abuse of process involved in the plaintiff bringing the contempt charges, the parties were ordered to bear their own costs.

Cases cited

The following cases are cited in the judgment:

Frank Malara v Turiai Maravila (1998) N1716
John Siune v Rendle Rimua (2013) N5110
John Siune v Rendle Rimua (2013) N5324
Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881
Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4956
Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2013) N5324
Martin Kenehe v Michael Pearson (2009) N3763
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Ome Ome Forests Ltd v Ray Cheong (2002) N2289
Peter Ipatas v Sir Mekere Morauta (2001) N2048
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 Diane Liriope v Dr Jethro Usurup (2009) N3572
The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303
Yap v Tan [1987] PNGLR 227

NOTICE OF MOTION

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

Counsel

S Asivo, for the plaintiff, with leave of the Court
B W Meten & D F Wa'au, for the first contemnor
Y Wadau & G Haumu, for the second and third contemnors

14th February, 2014 

1. CANNINGS J: This is the judgment on verdict for two individuals and a provincial government who have been charged with contempt of court for allegedly disobeying orders of the National Court. The charges have been laid under Division 14.6 of the National Court Rules by the plaintiff, Madang Cocoa Growers Export Co Ltd, by notice of motion in the course of proceedings known as OS No 297 of 2011. Those proceedings concern the occupation and use of a warehouse in Madang town known as the "DPI Buffalo Shed" or "Number 2 Didiman Station". It is on government land controlled by Madang Provincial Government. Those charged with contempt are:

•	the first contemnor, Gee Gunar (the second defendant in the substantive proceedings);

•	the second contemnor, Bernard Lange (the Madang Provincial Administrator);

•	the third contemnor, Madang Provincial Government (the third defendant).

2. Each contemnor is alleged to have disobeyed two orders of the National Court made in the substantive proceedings:

First, an order made on 25 June 2012, which relevantly stated:

7	The plaintiff has the right to exclusive occupation and use of the Number 2 Didiman Station Warehouse, Madang, in the period from 1 August 2012 to 31 July 2014, which shall not be interrupted except with the consent of the plaintiff or by order of the National Court or the Supreme Court.

8	The defendants and their associates and all other persons are required to vacate the Number 2 Didiman Station Warehouse, Madang, leaving it in good order and condition, by 31 July 2012.

3. I will regard the alleged breach of the 25 June 2012 order as the first charge of contempt.

4. Secondly, an order made on 16 August 2013, which relevantly stated:

2	The second defendant is liable to pay forthwith to the plaintiff the total amount of compensation and interest of K8,124.00.

3	The third defendant is liable to pay forthwith to the plaintiff the total amount of compensation and interest of K97,488.00.

5. I will regard the alleged breach of the 16 August 2013 order as the second charge of contempt. The contemnors pleaded not guilty to both charges so a trial has been held.

ELEMENTS OF CONTEMPT

6. To establish that any of the contemnors is guilty, the plaintiff must prove beyond reasonable doubt the three elements of a 'disobedience' contempt:

•	the order was clear and unambiguous;
•	the order was properly served on the contemnors (those charged with contempt); and
•	the contemnors deliberately failed to comply with it.

7. Each contemnor must be treated separately. If one element is not proven against a contemnor, that contemnor will be not guilty. If all elements are proven against any contemnor he 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; Martin Kenehe v Michael Pearson (2009) N3763).

I will address the two charges in turn.

THE FIRST CHARGE: DISOBEDIENCE OF THE ORDER OF 25 JUNE 2012

8. Counsel for the second and third contemnors, Mr Haumu, raised a preliminary point. He submitted that the second contemnor, Mr Lange, has already been convicted of this charge of contempt and punished. Mr Wa'au, counsel for the first contemnor, Mr Gunar, adopted this submission, pointing out that his client and Mr Lange were previously charged with disobeying the order of 25 June 2012 and have been punished. The argument is that as both Mr Gunar and Mr Lange have been convicted of this charge, they cannot be tried again on the same charge. That would be contrary to the rules of double jeopardy, which are part of the human rights of a person charged with an offence, under Section 37(8) (protection of the law) of the Constitution, which states:
 
No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

9. It is correct that Mr Gunar and Mr Lange have been convicted of contempt of court for disobeying order Nos 7 and 8 of the order of 25 June 2012. They were convicted on 8 November 2012 (Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881). They were punished on 31 January 2013 by being sentenced to six and 12 months imprisonment respectively, the sentences being suspended on payment to the plaintiff of K5,000.00 and K10,000.00 respectively (Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4956).

10. However, the current charge – though it relates to alleged disobedience of the same order that was the subject of the previous charge – is not actually the same charge. The current charge relates to events after the date of punishment, 31 January 2013. The charge is that in the period since then, the contemnors have continued to disobey the order of 25 June 2012. The offence with which they are presently charged is therefore a different offence in respect of which they were previously convicted and punished. I find that there is no double jeopardy. Section 37(8) of the Constitution does not protect them. The preliminary point is refused and I will deal with the charge on its merits.

First element: were the orders clear and unambiguous?

11. Order No 7 stated clearly and unambiguously that:

•	the plaintiff has the right to exclusive occupation and use of the warehouse in the period from 1 August 2012 to 31 July 2014; and

•	the plaintiff's occupation and use of the warehouse in that period cannot be interrupted without the consent of the plaintiff or by order of the National Court or the Supreme Court.

12. Order No 8 stated clearly and unambiguously that:

•	the defendants and their associates and all other persons were required to vacate the warehouse by 31 July 2012; and

•	those persons were required to leave the warehouse in good order and condition.

The first element is proven.

Second element: were the contemnors properly served?

13. Yes. No issue is taken as to service.

Third element: was there a deliberate failure to comply with the orders of 25 June 2012?

14. This element gives effect to the duty of every person, whether a party or not a party to the proceedings which have generated the order, to comply with an order of the court even in the face of a genuine belief that the order was made irregularly or was wrong in law or fact (Yap v Tan [1987] PNGLR 227). As I indicated in Sr Diane 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?

Was there a failure to comply with the orders of 25 June 2012?

15. No. I find on the evidence that the contemnors have since 31 January 2013 vacated the warehouse and left it in good order and condition. There has been a breakdown in communication between the plaintiff and officers of the Madang Provincial Government that have resulted in a refusal on the part of the plaintiff to move in to the warehouse. I am satisfied, however, that the Provincial Government has given a reasonable opportunity to the plaintiff to move in. There has been no failure by any person, except perhaps by the plaintiff, to comply with the order of 25 June 2012.

16. The third element is not satisfied. All contemnors are found not guilty of the first charge.

THE SECOND CHARGE: DISOBEDIENCE OF THE ORDER OF 16 AUGUST 2013

First element: were the orders clear and unambiguous?

17. I uphold the submission of Mr Asivo for the plaintiff that the orders were clear. The specified amounts of compensation were to be paid to the plaintiff "forthwith" (Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2013) N5324). The ordinary and natural meaning of the word "forthwith" is "immediately".

Second element: were the contemnors properly served?

18. Yes. No issue is taken as to service.

Third element: was there a deliberate failure to comply with the orders of 16 August 2013?

Was there a failure to comply with the orders of 16 August 2013?

19. To determine this issue it is necessary to make some findings of fact. I find that:

•	the first contemnor Mr Gunar has partially complied with the order by paying compensation in two instalments, totalling K5,000.00, by 20 December 2013; as at the day of submissions, 22 January 2014, he still owed K3,124.00;

•	the third contemnor, Madang Provincial Government, complied with the order to the extent that it paid the total amount of compensation to the plaintiff, K97,488.00, on 30 September 2013.

20. I uphold Mr Asivo's submission that Mr Gunar and the Provincial Government were required to pay the prescribed amounts in full immediately after the order of 16 August 2013. Given that that date was a Friday, I determine that to meet the "forthwith" requirement, the full amounts were required to be paid by the following Wednesday, 21 August 2013. The amounts were not paid by that date. They were not paid forthwith. Therefore there was a failure to comply with the order.

Who failed to comply?

21. All contemnors failed to comply. Mr Gunar and the Provincial Government were defendants in these proceedings and the orders were directed expressly at them. There can be no doubt about their obligation to comply.

22. The second contemnor, Mr Lange, is not a defendant but he is under Section 74(1) of the Organic Law on Provincial Governments and Local-level Governments the "chief executive officer" of Madang Provincial Government, which is one of the defendants to which the orders were expressly directed. His other functions include being the "administrative head of the staff in the province" and being "responsible for the efficient management of administrative services in the province" (Frank Malara v Turiai Maravila (1998) N1716, Peter Ipatas v Sir Mekere Morauta (2001) N2048). The effect of these constitutional functions was to cast upon Mr Lange the duty to ensure that any orders of any court directed at Madang Provincial Government were complied with. He failed to discharge that duty and therefore he must be regarded as having failed personally to comply with the order of 16 August 2013.

Was there a deliberate failure to comply?

23. I accept that on the evidence available, Mr Gunar found it extremely difficult to comply with the order. He has made reasonable efforts in good faith to pay the full amount of compensation. He has paid most of it and every indication is that he will complete the payment in the near future. I find no deliberate failure on his part to comply. Although he has disobeyed the order, the element of deliberateness is lacking.

24. I accept the evidence of Mr Lange and officers of the Provincial Government that Mr Lange acted quickly after 16 August 2013 to give instructions to "find money" to make payment as soon as possible. It was a substantial sum and it was an un-budgeted item. Mr Lange managed to get the full payment made on 30 September 2013, which is five weeks and five days after the date I determined (21 August 2013) as being when the Court's order required payment.

25. I accept that this was a reasonable time within which to make payment of such a substantial sum, given that Mr Lange was required to not only locate the money but ensure as far as possible that the financial procedures of the Public Finances (Management) Act 1995 were complied with. This is a relevant consideration to take into account in determining whether there was a deliberate failure to comply with a court order (Richard Charles Sikani v The State (2003) SC807). I distinguish the facts of the present case from those in John Siune v Rendle Rimua (2013) N5110 where the Secretary for Petroleum was convicted for disobeying a court order that required him to pay unpaid entitlements to the plaintiff within two days of the order. In that case, the contemnor had failed over a long period to make the payment that he was required to make and his failure to make any effort to meet the deadline set by the court order was held to amount to a deliberate failure to comply.

26. I find therefore that Mr Lange did not deliberately fail to comply. Nor, it follows, did the Provincial Government.

27. The third element of contempt is not proven against any of the contemnors and they are not guilty of the second charge.

CONCLUSION

28. All contemnors will be acquitted of both contempt charges. As the charges have been brought as an adjunct to civil proceedings costs would normally follow the event. However, as the contemnors all failed to comply with the order of 16 August 2013 and there has been no abuse of process by the plaintiff in bringing the contempt charges, the fairest outcome is that the parties bear their own costs.

VERDICTS

(1)	The first contemnor, Gee Gunar, is adjudged not guilty of both charges of contempt of court and is acquitted accordingly.

(2)	The second contemnor, Bernard Lange, is adjudged not guilty of both charges of contempt of court and is acquitted accordingly.

(3)	The third contemnor, Madang Provincial Government, is adjudged not guilty of both charges of contempt of court and is acquitted accordingly.

(4)	The parties shall bear their own costs.

Verdicts accordingly.
_______________________________________________________

Meten Lawyers: Lawyers for the 1st contemnor
Young Wadau Lawyers: Lawyers for the 2nd & 3rd contemnors