Melanesian Trustee Services Ltd v Tongayu [2020] PGNC 445; N8582 (5 March 2020)

N8582

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 90 OF 2018

BETWEEN:
MELANESIAN TRUSTEE SERVICES LIMITED
Appellant

AND:
MR ALEX TONGAYU as Chairman of Securities Commission of PAPUA NEW GUINEA
First Respondent

AND:
SECURITIES COMMISSION OF PAPUA NEW GUINEA
Second Respondent

AND:
OXLEY EQUITIES LIMITED
Third Respondent

Waigani: Dingake J
2020: 20^th February & 5^th March

CONTEMPT - oral application by plaintiff seeking bench warrant to compel respondents to appear in court for failure by respondents’ lawyer to appear in court despite being served court papers – relevant law with respect to the competency or correctness of issuing the bench warrant to secure the First Contemnor’s attendance as prayed by the applicant – consideration of – before filing proceedings for contempt the court papers for the alleged contemnor should be served personally – court papers were not personally served on alleged contemnor - the application to issue a bench warrant and secure the attendance of the First alleged Contemnor is without merit and is refused

Cases Cited:
Papua New Guinea Cases

Bishop v Bishop Bros 1988-89 PNGLR 533

Overseas Cases

Biba Ltd v Stratford Investments Ltd [1972] 3 ALLER 12
Ronson Products Ltd v Ronson Furniture [1966] 2 ALLER 381

Counsel:

Mr. Justin Haiara, for the Appellant
Nil representation for the Respondents

5^th March, 2020

1. DINGAKE J: On the 5^th of March, 2020, I reserved my ruling with respect to the oral application moved by Mr. Haiara, learned Counsel for the applicant, for a bench warrant to be issued for the arrest of the First alleged Contemnor and to secure his court attendance after what Mr. Haiara contended was his failure to appear in Court on two occasions despite being served and notified of the hearing date.
2. This oral application is a sequel to contempt proceedings instituted against the First and Second Contemnors by the applicant. I have assumed, purely for convenience, without deciding, that it is appropriate in the circumstances, to entertain this application, which is not written.
3. I have considered the law with respect to the competency or correctness of issuing the bench warrant to secure the First Contemnor’s attendance as prayed by the applicant.
4. In my considered opinion the law is clear that in proceedings for contempt the alleged contemnor should be served personally.
5. The evidence on record suggest that the requisite Court papers were served on one Sulluh Kautu, personal secretary to the First alleged Contemnor.
6. Mr. Haiara contends that such service was sufficient in the circumstances and within the contemplation of Order 14 Rule 45 of the National Court Rules.
7. With respect to service on the Second alleged Contemnor, Securities Commission of PNG, it being a juristic person, Section 10(2) of the Securities Commission Act 2015 read together with Order 6 Rule 3(2) of the National Court Rules suggests that proper service should have been effected on the First alleged Contemnor in person.
8. Order 6 Rule 3(2) of National Court Rules provides:
   • “3. Personal service: How effected. (9/3)
   • (2) Personal service of a document on a corporation maybe effected by serving the document in accordance with Sub-rule (1) on the mayor, chairman or president of the corporation, or on the town clerk, clerk, secretary, treasurer or other similar officer of the corporation.”
9. Order 14 Rule 15 of the National Court Rules provides as follows:
   • “15. Directions. (28/7)
   • Where, in proceedings commenced by writ of summons, a party applied for any order under Rule 10 or 11, the Court may order that the proceedings be before the Court for directions either immediately or on such date as the Court may appoint.”
10. It is plain from the above that service on the alleged Contemnor should be personal.
11. In the case of Bishop v Bishop Bros [1988-89] PNGLR 533, the Supreme Court held that service relating to contempt on any alleged Contemnor should be personally served.
12. It is incumbent upon the plaintiff who alleges that proper service was effected on alleged Contemnors to prove beyond reasonable doubt that service was effected personally (Ronson Products Ltd v Ronson Furniture [1966] 2 ALLER 381; Biba Ltd v Stratford Investments Ltd [1972] 3 ALL ER 12).
13. This Court cannot issue any order to arrest any person unless satisfied that such a person was served personally and knew what was expected of him.
14. It seems to me to be incontrovertible that if this Court is to interfere with the liberty of the subject and or any person, it ought first to be satisfied that he knew precisely what was expected of him.
15. I am fully alive to the frustration that may be occasioned to litigants who may be dealing with those who seek to evade service but the law should remain constant, steady and the wheels of justice should be allowed to grind in terms of the solid jurisprudence in place, because ultimately, the long arm of the law will catch up with those who seek to frustrate it.
16. It is open to the applicant to attempt to serve properly again or if so advised make an appropriate application for substituted service, if such is considered appropriate in the circumstances.
17. In the result, the application to issue a bench warrant and secure the attendance of the First alleged Contemnor is without merit and is refused.
    

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Haiara’s Legal Practice: Lawyers for the Appellant
Kopunye Lawyers: Lawyers for the Defendants