Wukawa v Gawi [2015] PGNC 136; N6024 (23 June 2015)

N6024

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 41 OF 2014

ELIZABETH MANDUS WUKAWA
Plaintiff

V

CHRISTINE GAWI
First Defendant

FR JAN CZUBA, CHAIRMAN,
BOARD OF MANAGEMENT, MODILON GENERAL HOSPITAL
Second Defendant

Madang: Cannings J
2015: 2, 23 June

CONTEMPT OF COURT – disobedience contempt – failure to comply with court order that required plaintiff to be reinstated – 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 ordered on 22 January 2014 that the plaintiff be reinstated by 5 February 2014 to the position she previously occupied at a public hospital and paid her outstanding entitlements by 5 March 2014. On 30 January 2014 the Chief Executive Officer of the hospital filed an appeal against that order to the Supreme Court. The plaintiff was not reinstated by 5 February 2014. On 7 February 2014 the plaintiff commenced proceedings against the Chief Executive Officer of the hospital and the Chairman of the Management Board of the hospital, charging them with contempt of court on the ground that each had disobeyed the order of 22 January 2014. On 7 March 2014 the Supreme Court stayed the order of 22 January 2014 pending determination of the appeal. On 30 October 2014 the appeal was dismissed. In November 2014 the plaintiff was reinstated and paid her entitlements (which she received, while reserving her right to challenge the amount). In 2015 a trial was conducted on the charge of contempt of court. Both defendants pleaded not guilty. The second defendant argued that the charge was defective and should be summarily dismissed.

Held:

(1) There are no Rules of Court specifying the manner of drafting of a charge of contempt of court. Provided the charge, given all the circumstances in which it is drafted, served and set down for trial, conveys the gist of the alleged contempt and the contemnor understands the charge and the elements of the charge are clear, the charge will usually be regarded as adequate.

(2) Challenges to the drafting of a charge of contempt of court or to the jurisdiction of the court hearing the charge, should be made prior to arraignment of the contemnor. The second defendant's challenge to the charge was made late and it was refused.

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

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

(4) The order was clear and unambiguous. It was served on the first defendant but not on the second defendant. The first two elements were proven against the first defendant but not against the second defendant who was found not guilty for that reason alone.

(5) The third element (deliberate failure to comply) gives rise to three issues:

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

(6) There was a failure to comply with the order, as the order required that the plaintiff be reinstated by 5 February 2014 and that did not happen. The first defendant failed to comply, but not the second defendant as the order was not directed at him and it was not within his role and functions as Chairman of the Board to reinstate the plaintiff. The first defendant's failure to comply was deliberate as she made a conscious decision not to reinstate the plaintiff while waiting for her application to the Supreme Court for a stay of the reinstatement order to be heard. The third element was proven against the first defendant but not against the second defendant.

(7) The first defendant was found guilty of contempt of court. The second defendant was found not guilty of contempt of court.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545
Christine Gawi v Public Services Commission & Elizabeth Mandus Wukawa (2014) N5473
Ian Augerea v Todagia Kelola & South Pacific Post Ltd (2014) N5582
Mathew Michael v John Glengme & Isaac Gladwin (2008) N3429
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Ome Ome Forests Ltd v Ray Cheong (2002) N2289
Re Charges of Contempt of Court against Gee Gunar and Bernard Alvin Lange and Madang Provincial Government (2014) N5500
Robert Kaidai v Agua Nombri (2014) N5718
Sr Diane Liriope v Dr Jethro Usurup (2009) N3572
Toami Kulunga v Geoffrey Vaki (2014) SC1389
Yap v Tan [1987] PNGLR 227

ORIGINATING SUMMONS

This is the verdict for two persons charged with contempt of court.

Counsel

Y Wadau, for the Plaintiff
W Mapiso, for the First Defendant
D Wood, for the Second Defendant

23rd June, 2015

1. CANNINGS J: The first defendant Christine Gawi is the Chief Executive Officer of Modilon General Hospital, Madang. The second defendant Fr Jan Czuba is the Chairman of the Management Board of that hospital. They have each been charged by the plaintiff Elizabeth Mandus Wukawa with contempt of court for their alleged failure to comply with an order of the National Court dated 22 January 2014 requiring that the plaintiff be reinstated to the position she previously occupied at the hospital by 5 February 2014. They pleaded not guilty so a trial has been held and this is the Court's decision on verdict.

BACKGROUND

2. The plaintiff was a specialist midwifery nurse at the hospital. On 7 November 2011 the first defendant charged her with a serious disciplinary offence relating to alleged involvement in unlawful industrial action at the hospital. The first defendant on 12 December 2011 found the plaintiff guilty and imposed the penalty of dismissal from the Public Service. The plaintiff complained to the Public Services Commission, which reviewed the matter and on 14 August 2013, made a decision, annulling the first defendant's decision, reinstating the plaintiff and reimbursing the plaintiff's lost salaries and entitlements.

3. The first defendant then applied to the National Court for judicial review of that decision, which was stayed pending determination of the judicial review. On 22 January 2014 the National Court refused the application for judicial review (Christine Gawi v Public Services Commission & Elizabeth Mandus Wukawa (2014) N5473) and ordered:

The decision of the first defendant [the Public Services Commission] dated 14 August 2013 is binding and shall be complied with as soon as practicable, which means that the second defendant [Ms Wukawa] shall be reinstated by 5 February 2014 and be reimbursed her lost salaries and entitlements by 5 March 2014.

4. That order was entered on 23 January 2014. The first defendant, Ms Gawi, was aggrieved by the order and on 30 January 2014 filed an appeal to the Supreme Court, together with an application for a stay of the National Court order of 22 January 2014. The plaintiff was not reinstated by 5 February 2014. On 7 February 2014 the plaintiff commenced the present proceedings against the defendants, charging them with contempt of court on the ground that they each had disobeyed the order of 22 January 2014.

5. On 5 March 2014 the Supreme Court stayed the order of 22 January 2014 pending determination of the appeal. On 30 October 2014 the appeal was dismissed. In November 2014 the plaintiff was reinstated and paid her entitlements (which she received, while reserving her right to challenge the amount).

6. It is against that background that a trial on the charge of contempt of court was conducted on 2 June 2015. Criminal procedures were adopted. The plaintiff's counsel Mr Wadau presented the statement of charge, which was then put to the defendants, also referred to as contemnors, who were seated in the dock. The first defendant was represented by Mr Mapiso. The second defendant was represented by Mr Wood. The defendants indicated that they understood the charge and each pleaded not guilty. Mr Wadau then presented the plaintiff's case, which consisted of five affidavits, three by the plaintiff and two by other deponents. Mr Mapiso then presented the first defendant's case, which consisted of three affidavits, two by the first defendant and one by another deponent. Mr Wood then presented the second defendant's case, which consisted of one affidavit by the second defendant. An application by Mr Wadau for adjournment was refused and the Court proceeded to hear submissions.

7. In opening submissions for the second defendant Mr Wood argued that the charge was defective as it did not disclose a cause of action and the proceedings ought to be summarily dismissed. I will deal with this argument first.

ARGUMENT THAT CHARGE IS DEFECTIVE

8. The statement of charge states:

1 That on 22 January 2014, the National Court made orders to this effect:

(1) ...

(2) ...

(3) The decision of the first defendant dated 14 August 2013 is binding and shall be complied with as soon as practicable, which means that the second defendant shall be reinstated by 5 February 2014 and be reimbursed her lost salaries and entitlements by 5 March 2014.

(4) ...

2 The contemnors failed to issue the notice of reinstatement or resumption of duty to the plaintiff, after the Court made its Order very clear.

3 On 5 February 2014 the plaintiff went to the Modilon General Hospital and waited at the [precinct] of the office of the Chief Executive Officer to receive instruction for resumption of duties without any response.

4 The Plaintiff had not been reinstated by close of business on 5 February 2014.

9. I agree to some extent with Mr Wood's submission. The drafting of the charge is problematic. It does not expressly allege that the defendants failed to comply with or disobeyed the order of the Court. It does not allege the general elements of a charge of contempt – that the defendants committed an act or omission, in the face of the court or outside court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice (Andrew Kwimberi v The State (1998) SC545). Nor does it allege the particular elements of a disobedience contempt – that the Court made a clear and unambiguous order, which was served on the defendants, and which was disobeyed (Sr Diane Liriope v Dr Jethro Usurup (2009) N3572).

10. Do those inadequacies mean that the charge should be struck out or that the proceedings should be summarily dismissed? No, for four reasons.

11. First, there are no Rules of Court specifying the manner of drafting of a charge of contempt of court; so there has been no breach of any particular rule.

12. Secondly, provided the charge, given all the circumstances in which it is drafted, served and set down for trial, conveys the gist of the alleged contempt and the contemnor understands the charge and the elements of the charge are clear, the charge will usually be regarded as adequate. Those requirements are satisfied here.

13. Thirdly, challenges to the drafting of a charge of contempt of court or to the jurisdiction of the court hearing the charge, should be made prior to arraignment (Toami Kulunga v Geoffrey Vaki (2014) SC1389). This was a late challenge, made not only after arraignment of the defendants, during which they both indicated that they understood the charge, but after the close of evidence.

14. Fourthly, there is no unfairness to the defendants in allowing the charge to be determined on in its merits.

15. I now deal with the merits of the charge.

ELEMENTS OF CONTEMPT

16. The plaintiff has charged the defendants with committing a 'disobedience' contempt. As indicated above, the plaintiff must prove three things:

1. the order was clear and unambiguous;
2. the order was properly served on the defendants; and
3. the defendants deliberately failed to comply with it.
   

17. Contempt of court is a criminal matter and the plaintiff must prove the existence of the three elements beyond reasonable doubt. Each defendant must be treated separately. If one element is not proven against a defendant, that person will be not guilty. If all elements are proven against the defendant he or she will be guilty (Sr Diane Liriope v Dr Jethro Usurup (2009) N3572; Re Charges of Contempt of Court against Gee Gunar and Bernard Alvin Lange and Madang Provincial Government (2014) N5500; Ian Augerea v Todagia Kelola and South Pacific Post Ltd (2014) N5582).

FIRST ELEMENT: WAS THE ORDER OF 22 JANUARY 2014 CLEAR AND UNAMBIGUOUS?

18. Yes it was. The order was pronounced orally and put in writing. It required two things to be done: (a) the plaintiff had to be reinstated by 5 February 2014; (b) the plaintiff had to be reimbursed her lost salaries and entitlements (in accordance with the decision of the Public Services Commission) by 5 March 2014. The defendants concede that this element has been proven.

SECOND ELEMENT: WAS THE ORDER SERVED ON THE DEFENDANTS?

19. The first defendant does not take issue with this element. She was personally served with a sealed copy of the order on 24 January 2014.

20. The second defendant says that he was never personally served with the order. I uphold this submission. There is no clear evidence of personal service of the order on the second defendant. There is only indirect evidence that a bundle of court documents, which might have included a sealed copy of the order, was served on him by Mr Wadau at Divine Word University, on 11 March 2014. It appears from that evidence, and from the evidence of the second defendant, that Fr Czuba refused to accept service of that bundle of documents. In any event, by that time, the order of 22 January 2014 had, on 5 March 2014, been stayed by the Supreme Court. I find that it has not been proven beyond reasonable doubt that the second defendant was personally served with the order. He will be found not guilty for that reason alone.

THIRD ELEMENT: WAS THERE A DELIBERATE FAILURE TO COMPLY WITH THE ORDER?

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

(a) was there a failure to comply?
(b) who failed to comply?
(c) was it deliberate?

(a) Was there a failure to comply with the order of 22 January 2014?

22. Yes. There can be no dispute about this. The plaintiff was not reinstated by 5 February 2014.

(b) Who failed to comply?

23. The person who failed to comply with the order was the first defendant. Though the order did not expressly state that the Chief Executive Officer of Modilon General Hospital was the person who had to reinstate the plaintiff, the order was by necessary implication directed at the person holding that position, which was the first defendant. Ms Gawi concedes this in her affidavit filed in these proceedings on 15 January 2015 (exhibit C1) by stating that her understanding of the order was that the order required her to do two things: reinstate the plaintiff by 5 February 2014 and pay her lost salaries and entitlements by 5 March 2014.

24. I uphold Mr Wood's submission that the second defendant did not fail to comply with the order as the order was not directed at the second defendant, he was not a party to the proceedings under which the order was made and it did not fall within his statutory functions to give instructions to the Chief Executive Officer about disciplinary matters. This finding provides another reason for finding him not guilty.

(c) Was there a deliberate failure to comply?

25. The first defendant has given evidence that she did not ignore or 'sit on' the order of 22 January 2014 and that she did not intentionally or deliberately refuse to comply with it. She states that she and her management team were aggrieved by the order and took prompt and lawful steps to challenge it by instructing her lawyers to file a Supreme Court appeal, which was done on 30 January 2014. She asks the Court to take into account that the period of her default was only one day as the order required her to reinstate the plaintiff by 5 February 2014 and the plaintiff waited only one day before filing the contempt proceedings on 7 February 2014. She also highlights that as soon as the appeal was filed her lawyers made every effort to get her stay application heard. It could not be heard until 5 March 2014, but when it was, it was immediately granted. Then, when her appeal was dismissed on 30 October 2014, she took immediate steps to reinstate the plaintiff and pay her lost salaries and entitlements, which involved a substantial amount (K61,308.00) of unbudgeted expenditure.

26. Mr Mapiso submits on the basis of that evidence that it cannot be proven that the first defendant deliberately disobeyed the order of 22 January 2014. He asserts that she had no conscious intention of disobeying the order. However, if the court is satisfied that there was an element of disobedience it extended for the insignificant period of one day, which is an insufficient period on which to base a guilty verdict.

27. Mr Mapiso stressed that by filing the Supreme Court appeal, the first defendant acted responsibly and lawfully. She allowed the law to take its course. She also acted promptly, as soon as the appeal was dismissed, in complying with the order of 22 January 2014. All of these aspects of her behaviour show the absence of any intention on her part to disobey the Court's order or to interfere with the administration of justice or to show disrespect for the authority of the Court.

28. These are useful and reasonable submissions. I acknowledge that in some cases, for example, the National Court decision of Kandakasi J in Ome Ome Forests Ltd v Ray Cheong (2002) N2289, it has been suggested that it is essential for the plaintiff to prove that the defendant intended to disobey or flout the order of the court and that the defendant was at fault and wilfully disobedient. His Honour stated that the law of contempt is not intended to criminalise conduct that is casual, accidental or unintentional.

29. However, as I have stated in a number of cases (eg Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447; Ian Augerea v Todagia Kelola & South Pacific Post Ltd (2014) N5582; Robert Kaidai v Agua Nombri (2014) N5718) it is not necessary, in order to establish the deliberateness of the failure to comply, to prove a conscious intention on the part of a defendant to disobey the court's order. Reckless or careless disregard of the requirements of a court order is sufficient. I am not bound to adopt the 'intentional disobedience' approach that appears to have been taken by Kandakasi J in Ome Ome; and if that is what his Honour was actually deciding I respectfully decline to follow that approach.

30. I agree that if by pure accident a court order were disobeyed, the deliberateness element would not be complied with. If a person does all in his or her power to comply with a court order but is prevented from complying by the conduct of another person, he or she cannot be said to have deliberately disobeyed the order (Mathew Michael v John Glengme & Isaac Gladwin (2008) N3429). But where it is within the physical power of a defendant to comply and insufficient steps are taken to comply and it is not a case of a pure accident, that will be sufficient.

31. I find it proven that the first defendant carelessly disregarded the order of 22 January 2014 by not taking steps to reinstate the plaintiff by 5 February 2014. The first defendant made a conscious decision not to reinstate the plaintiff while waiting for her application to the Supreme Court for a stay of the reinstatement order to be heard. There was nothing to prevent her from reinstating the plaintiff by the due date. It was physically and lawfully within her power to reinstate the plaintiff. She chose not to do so.

32. I have considered whether the first defendant would have had a defence if she had argued that she believed she did not have to comply with the order of 22 January 2014 because she had filed an appeal and an application for a stay order, or if she had argued that she was acting on legal advice that she did not have to reinstate the plaintiff. Such defences were not raised, but if they had been, I do not think they would have succeeded as it is not usually a defence to a criminal charge for an accused to say that he or she believed that what they did was not an offence or that they committed the offence on legal advice.

33. The Court is entitled to and, indeed, must take a strict approach in these cases where the underlying concern is to protect the authority of the Court and to reinforce the Rule of Law. It is the duty of every person in Papua New Guinea to comply with court orders. This duty applies 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). And this duty applies where the person at whom the order is directed has taken steps to appeal against the order. Unless and until the order is set aside or dissolved or quashed or stayed, or in some other way by some lawful authority the clear instruction given that the order does not have to be complied with, it must be obeyed.

34. I find it proven beyond reasonable doubt that this was a case of a deliberate failure to comply with a court order. I reject Mr Mapiso's submission that the period of non-compliance was only one day. The period was one month, from the date by which the plaintiff was to be reinstated, 5 February 2014, to the date of the Supreme Court stay order (which had no retrospective effect), 5 March 2014. I find the third element proven against the first defendant.

CONCLUSION

35. All elements of a disobedience contempt have been proven against the first defendant and she will be found guilty as charged. Neither the second nor the third elements have been proven against the second defendant and he will be found not guilty. I will make no order for costs at this stage and direct that any application for costs shall be made by notice of motion, to be filed and served within 14 days. The proceedings will now proceed to a punishment hearing regarding the first defendant, the time of which will be set in consultation with the parties.

ORDER

(1) The first defendant, Christine Gawi, is adjudged guilty of contempt of court, as charged, and is convicted accordingly.

(2) The second defendant, Fr Jan Czuba, is adjudged not guilty of contempt of court and is acquitted accordingly.

(3) Any application for costs shall be made by notice of motion to be filed and served within 14 days after the date of this order.

Verdicts accordingly.
______________________________________________________________
Young Wadau Lawyers: Lawyers for the Plaintiff
Guardian Legal Services: Lawyers for the First Defendant
Ashurst Lawyers: Lawyers for the First Defendant