Gend v Mangre [2019] PGNC 368; N8090 (25 July 2019)

N8090

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 156 of 2018

BETWEEN:
PAUL GEND
Plaintiff

AND:
JOE MANGRE
Defendant

Waigani: Hartshorn J.
2019: 19^th February, 25^th July

Contempt - penalty

Cases Cited:
Papua New Guinea Cases

Bank of South Pacific Ltd v. Anton Sekum & Ors (2011) N4588
Madang Development Corporation Ltd v. Rabtrad Madang Ltd (2013) N5259
Milupol Development Corporation Ltd v. Garai (2012) N4635
Yap v. Tan [1987] PNGLR 227

Overseas Cases

Australian Meat Industry Employees Union v. Mudginberri Station Pty Ltd (1986) 161 CLR 98
Witham v. Holloway (1995)183 CLR 525

Counsel:

Mr. R. Otto, for the Plaintiff

25^th July, 2019

1. HARTSHORN J. This is a decision on the sentence to be imposed upon the defendant Joe Mangre, after he was found guilty of contempt of court.

Background

2. In proceeding MP 47/16, this court ordered that the defendant be adjudicated insolvent and amongst others, that he attend at the office of the Registrar of the National Court at Waigani and deliver to the Trustee acting in respect of his estate a full and accurate statement verified on oath of various matters (subject order). The subject order was entered on 16^th May 2017 and served upon the defendant on 20^th May 2017.

3. As a result of a typing error concerning the date and time of the ordered attendance at the Registrar’s Office, the corrected order was personally served on the defendant on 2^nd June 2017.The defendant did not attend on 9^thJune 2017 at the Registrar’s Office as ordered by the subject order.

4. This proceeding was commenced in March 2018. Following the hearing of an application for contempt orders at which the defendant was not present, he was found guilty of contempt of court.

Submissions

5. A hearing was conducted at which submissions upon sentence were made. Again, the defendant was not present.

6. The plaintiff submits amongst others, that the contempt of the defendant is a very serious disobedience contempt. Further, the defendant’s actions in committing the contempt and then not attending court when required to do so on numerous occasions exhibits a deliberate and wilful undermining of this court’s authority. The plaintiff submitted that the defendant should be penalised with a term of imprisonment of three years or more.

Consideration

7. No maximum punishment is prescribed for contempt. Pursuant to Order 14 Rule 49(1) National Court Rules, where the contemnor is not a corporation, the court may punish contempt by committal to prison or fine or both.

8. The category of contempt in respect of which the defendant has been found guilty is referred to as disobedience contempt. That is, the failure to comply with an order of the court or an undertaking given to a court.

9. In Bank of South Pacific Ltd v. Anton Sekum & Ors (2011) N4588, I sentenced the contemnor who had been found guilty of a disobedience contempt that was business related, to a fine and imprisonment if not paid within thirty days, and costs to be paid on a solicitor client basis. In Milupol Development Corporation Ltd v. Garai (2012) N4635, I sentenced the contemnor who had also been found guilty of a disobedience contempt that was business related, to a fine and imprisonment if not paid within six months and costs to be paid on a solicitor client basis. In Madang Development Corporation Ltd v. Rabtrad Madang Ltd (2013) N5259, I sentenced the contemnor who had pleaded guilty to a disobedience contempt, to a term of nine months’ imprisonment and costs to be paid on a solicitor client basis. The contemnor was a lawyer and the contempt concerned the non-compliance with an order to repay funds that had been applied for the contemnor’s own use from his Lawyers Trust Account.

10. As I said in Anton Sekum (supra):

“The punishment of a fine with or without a default penalty and an order for the payment of costs, to an extent, reflects the punishment that was imposed for disobedience contempt historically. This was referred to in Australian Consolidated Press Ltd v. Morgan [1965] HCA 21; (1965) 112 CLR 483 by Windeyer J:

“When contempt lies in disobedience of a court’s order to do something, the contemnor may be imprisoned, until by doing what was ordered he purges his contempt. When contempt lies in disobedience of an injunction not to do something, the contemnor is ordinarily permitted to purge his contempt by an apology to the court, making reparation for the damage done by the forbidden act and paying the costs as between solicitor and client.”

The imposition of a fine, which was not permitted in earlier times, can be seen to have replaced the making of reparations in the passage cited.

The payment of a fine with or without imprisonment as the default penalty is often the punishment for disobedience contempt imposed in the courts of Australia. The Federal and High Courts of Australia have the power to order that a contemnor, “pay a fine, be committed to prison or both pay a fine and be committed to prison.” The decisions of these Courts are persuasive in this jurisdiction.

In the recent case of Vaysman v. Deckers Outdoor Corporation Inc [2011] FCAFC 17, a decision of the Full Court of the Federal Court of Australia, Gray J said that:

“The starting point for the process of reasoning in sentencing is the gravity of the offence... In the case of contempt of court involving contravention of, or failure to comply with, court orders, that means assessing the seriousness of the defiance of the Courts authority.”

Then later,

“... Restraint is appropriate in imposing sentences of imprisonment for contempt of court involving contravention of, or failure to comply with, orders of the Court. The authority of a court can be brought into disrepute, rather than enhanced, by too great a tendency to punish severely in cases that do not warrant severity.”

In the judgment of Bromberg J in Vaysman (supra), His Honour had this to say as to punishment for contempt:

“.... The question is whether by reference to the harm done, the seriousness of the contempt, any prior relevant misconduct and the physical, mental and other personal conditions of the person to be sentenced, no sentence other than imprisonment is (in all the circumstances) appropriate.” “... non-compliance with court orders necessarily constitutes an interference with the administration of justice and thus the public interest of vindicating judicial authority is raised....” “The vindication of judicial authority must necessarily reflect the nature of the challenge to that authority inflicted by the conduct in contempt in question.” “Imprisonment, as

a disciplinary sanction for contempt, ought to be confined to the most serious of contempts..” “As Keane CJ, Dowsett and Reeves JJ recently observed in Jones v. Australian Competition and Consumer Commission [2010] FCAFC 136 at [36], there would be a serious question of the propriety of a sentence of imprisonment if the charges raised only a case of civil contempt; that is, a case where contumacious conduct was not contended for.””
11. In this instance I found that as there was no evidence filed by the defendant, the evidence filed on behalf of the plaintiff was not rebutted, that I was satisfied on the evidence filed on behalf of the plaintiff that the subject order was personally served upon the defendant, that he was made aware of the hearing date and time of his required attendance at the Registrar’s Office and that the defendant did not attend at the Registrar’s Office as required by the subject order.

12. I was satisfied beyond reasonable doubt of these essential matters and the defendant’s non attendance as required, and breach of the subject order, was wilful.

13. The defendant’s non-compliance with the subject order has had the added consequence that the insolvency process in regard to him being adjudged insolvent, has come to a halt.

14. As I said in Milupol v. Garai (supra) the defendant’s actions have the effect of undermining the authority of this court and the administration of justice and the imposition of a penalty is necessary to protect both the interests of the plaintiff and the administration of justice. In their joint judgment in Australian Meat Industry Employees Union v. Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107, this was recognised by Gibbs CJ, Mason, Wilson and Deane JJ when they said that:

“Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the Courts orders will be enforced.”

and in Witham v. Holloway (1995)183 CLR 525 at 533-4, Brennan, Deane, Toohey and Gaudron JJ stated that:

“Even when proceedings are taken by the individual to secure the benefits of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court’s authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests..... All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.’

13. Having regard to the seriousness of the contempt, that it has resulted in the halt of the insolvency process in regard to the defendant’s insolvency and that the defendant’s actions were wilful, I am satisfied that the penalty to be imposed should be substantial but with a primary penalty other than imprisonment.

14. In Yap v. Tan [1987] PNGLR 227, the total fine imposed for three charges was K15,000. In Anton Sekum (supra), the penalty which I imposed upon the contemnor, a lawyer, was a fine of K25,000 and in default of payment within thirty days, a period of imprisonment of six months together with costs to be paid on a solicitor client basis. In Milupol (supra), the fine imposed was K17,000 and in default of payment within 30 days, a period of imprisonment of six months together with costs to be paid on a solicitor client basis.

15. In this instance, the defendant has been adjudged insolvent. The defendant however, has not acknowledged, or given any co-operation in relation to, or submitted to, the insolvency process. There is nothing before the court as to his means.

16. For the above reasons and in the circumstances therefore, the appropriate penalty and the one that I impose is that the defendant shall pay a fine of K17,000. If payment of that fine is not made within thirty days from today, then the defendant shall be imprisoned for a period of six months.

17. Finally, I order that the defendant is to pay the costs of the plaintiff of and incidental to this proceeding, on a solicitor client basis.
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Themis Lawyers: Lawyers for the Plaintiff