N8671
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 534 OF 2017

BETWEEN:
STEVEN SIKE
Plaintiff

AND:
JEROME SAWIN In His Capacity As Legal Officer, Education Department
First Defendant

AND:
JOHN TEKLAU KAUPA As Acting Principal Of Simbu Teachers College
Second Defendant

AND:
BARAN SORI In His Capacity As Chairman Of Teaching Services Commission
Third Defendant

AND:
DR UKE KOMBRA In His Capacity As Secretary For Education Department And Chairman Of The National Education Board
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Miviri J
2020: 12th November, 1st December 

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 13 (14) – Dispensation with Service – Contempt Charge – Documents relied relating – substituted Service – No basis to dispense with Personal Service – Liberty of subject complained – Material relied in sufficient – Balance not discharged – Motion refused – cost follow event.

Cases Cited:

Vaki v Baki [2014] PGNC 35; N5507 
Vaki v Baki [2014] PGNC 21; N5612 
Kaputin, The State v [1979] PNGLR 544 
Tou v Papua New Guinea Forest Authority (No 3) [2003] PGNC 18; N2490
Counsel:

J. Napu, for Applicant
No appearance for Defendants 

					RULING 
 01st December, 2020
1.	MIVIRI, J: This is the ruling on a notice of motion pursuant to Order 16 Rule 13 (14) of the National Court Rules moved by the plaintiff/applicant for the dispensation of the requirements to personally serve the fourth defendant of an allegation of contempt of court.

2.	Order 16 Rule 13 (14) is in the following terms: “Dispensation with the Requirements of these Rules. The Judge may dispense with any requirements of these rules in an appropriate case.”

3.	This is clear language that dispensation may take place in an appropriate case. It means it is upon the applicant to satisfy the balance by proper evidence that it is an appropriate case to dispense with the requirements of service. Because Order 6 Rule 1 is specific, “Any document required or permitted to be served in any proceedings may be served personally, but need not be served personally unless personal service is required by these rules or by order of the Court.” There is no substituted service by this rule. Here it is an allegation of contempt intended against the fourth defendant which has not been served. And it is personal service by the rule settled by Vaki v Baki [2014] PGNC 35; N5507 (21 February 2014) service of the contempt charges and related documents on the Secretary of the Commissioner of Police who was authorized by the commissioner to take service did not constitute service within the rules. There was no service and the charges could not be proceeded against the Commissioner of police.

4.	The reason is simple that contempt whether civil or criminal has serious consequences following. And this is evidenced in Vaki v Baki [2014] PGNC 21; N5612 (13 June 2014) there the Commissioner of Police Toami Kulunga was found guilty of three counts of contempt of court where orders issued for the adjudication of serious disciplinaries charges against Geoffrey Vaki were not complied with. On each of the counts the court convicted Commissioner Toami Kulunga sentenced him on each of the counts individually to 7 months imprisonment in hard labour on each count. It is a very serious matter where the allegation is non-compliance of court order. By itself it is not a light matter and comes with it grave consequences for him who offends by non-compliance: Kaputin, The State v [1979] PNGLR 544 ten weeks imprisonment in hard labour upon a member of Parliament and Minister of the State. He had failed as Director of that company to lodge annual returns and was ordered by the court. He did not effect that order for a period of over 10 months limited by the court. Tou v Papua New Guinea Forest Authority (No 3) [2003] PGNC 18; N2490 (11 December 2003) is yet another example where Mr. Valentine Kambori, Chairman of National Forest Board and Secretary for National Planning and Rural Development was found guilty of two counts of contempt of court in his capacity as Chairman of the National Forest Board. He was imprisoned for six months which was to be suspended if K 2, 500.00 was paid each for count 1 and 2 a total sum of K 5000.00 and that he entered into his own recognizance to keep the peace and be of good behavior for 12 months with surety of K 5000 cash.

5.	The aggregate is that it is not just a matter where the applicant can lightly step into court and ask for dispensation. It will not happen because of the consequences that are set out above. There is no proper basis by evidence here to dispense with the requirements upon the plaintiff/applicant personally serving upon the alleged contemnor documents including court orders application for contempt, Statement of Charge, affidavits, and all other documents personally on the alleged contemnor. He will not be served through the office or subordinates who are in attendance. And that the matter is returnable will be returnable upon that fact evidenced by proper affidavit of service in accordance with the rules set out above. 

6.	It is not the duty of the court to run the case of the applicant for the applicant and then decide the matter. Our system of advocacy does not allow there is very clear separation of the bounds between the court and the litigant. Attendance of the alleged contemnor has not for all intent and purposes accomplished or necessitated there is nothing before the court. 

7.	Fundamentally reliance placed in support of the application on the affidavit of one Nelson Gunua sworn of the 09th November 2020 service clerk with Napu and Company Lawyers leaves a lot to be desired in reliance upon it. Contempt is analogous with its burden of proof as in criminal cases beyond all reasonable doubt. As it is the affidavit will not move the application beyond the balance required. The application is not sustained and is refused with Costs.

8.	The formal orders of the court are: 

(1)	Application for dispensation of service is refused.

(2)	Costs will follow the event.
Orders Accordingly.
__________________________________________________________________
Napu & Company Lawyers: Lawyer for the Plaintiff/Applicant