Hiyabe v Manau [2024] PGNC 236; N10899 (18 July 2024)

N10899

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 266 OF 2023 (IECMS)

BETWEEN
MAI HIYABE – Chairman and Clan Agent for and on behalf of the Yugu Clan
Plaintiff

AND:
DAVID MANAU- Secretary for Department of Petroleum & Energy
First Contemnor/Defendant

AND:

DEPARTMENT OF PETROLEUM & ENERGY
Second Contemnor/Defendant

Waigani: Carey J
2024: 26^th June & 18^th July

CONTEMPT OF COURT – Application for contempt of Court – failure to comply with a court order

COURT ORDER – Questions on ambiguity of the Court Orders - Service of motion, statement of charge, and affidavit for contempt of Court – Personal service – Service on the Secretary for the Department of Petroleum & Energy

The Plaintiff brought contempt proceedings against the First Contemnor. The First Contemnor submits that the Plaintiff has not proved contempt beyond reasonable doubt and proceedings should be dismissed.

Held:

1. The contempt proceedings are dismissed in its entirety as the requirements to prove contempt beyond reasonable doubt were not proven.
   
2. The Plaintiff’s failure to serve the proceedings personally on the First Contemnor and further having not sought leave of the Court to deviate from the National Court Rules renders this application incompetent.
3. The contempt proceedings are further deemed to be an abuse of Court process based on being vexatious and frivolous pursuant to Order 12 Rule 40 (1) (b) of the National Court Rules.
4. The Plaintiff shall pay the First and Second Contemnor’s costs of and incidental to the proceeding, to be taxed if not agreed.
   

Cases Cited:
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
Vaki v Baki [2014] PGNC 35, N5507
Theresa’s Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283
Tigam Malewo and Robert Demutt and Hens Guimben on their behalf and on behalf of Tama, Amisan and Daventem Clan Members and Dick Bomki, Non Korek, Norman Bonben and Silo Kondomo on their behalf and on behalf of Brulla Genho, Daupka and Kimka Clan Members v Keith Faulkner - Managing Director of Ok Tedi Mining Limited and Ok Tedi Mining Limited and PNG Sustainable Development Programme Company and BHP (PNG) Ltd and The Independent State of Papua New Guinea and Inmet Mining Corporation and BHP Biliton Ltd [2007] N3357
Tigam Malewo and Robert Demutt and Hens Guimben on their behalf and on behalf of Tama, Amisan and Daventem Clan Members and Dick Domki, Nong Korek, Norman Bonben and Silo Kondomo on their behalf and on behalf of Brulla Genho, Daupka and Kimka Clan Members v Keith Faulkner, Managing Director, Ok Tedi Mining Limited and Ok Tedi Mining Limited and PNG Sustainable Development Programme Company and BHP (PNG) Limited and The Independent State of Papua New Guinea and Inmet Mining Corporation and BHP Billiton Limited [2009] SC960.

Legislation:
Land Groups Incorporation (Amendment) Act (No. 15 of 2018)
National Court Rules
Oil and Gas Act 1998
The Constitution of the Independent State of Papua New Guinea

Counsel:
Mr. Dick Korowa, for the Plaintiff
Ms. Gabrielle Dusava, for the Defendants/Contemnors

JUDGMENT

18^th July 2024

1. CAREY J: This is an application by Mai Hiyabe – Chairman and Clan Agent for and on behalf of the Yugu Clan (Plaintiff) to issue contempt proceeding against David Manau (First Contemnor) for failing to comply with Court Orders dated 4^th October 2005.
   
2. In particular, it is in reference to the First Contemnor’s non-compliance of the Court Orders and recognizing the Plaintiff as the Chairman of the Yugu Clan.
   

BACKGROUND

3. The contempt proceedings emanates from Orders dated 4^th October 2005 from the District Court which are specified in the following:
   
   1. “The new Chairman Mr. Mai Hiyabe be recognized as Chairman of Yugu land owners incorporation with his office bearers as per the resolution of the 11^th June general meeting but subject to further negotiation.
      
   2. That the Department of Petroleum and Energy recognizes the new Chairman and his office bearers to represent Yugu incorporated land groups. All royalty payments be channelled through the new management for the benefit of all land owners.
      
   100. The new Chairman is at liberty to open new bank account under the name of Yugu Incorporated Land Group where royalty payments can be paid into.
        
   4. A new Certificate of Recognition be issued for ease of reference and management.”
      
4. The Plaintiff relied on the Affidavits of Mai Hiyabe filed on 19^th September 2023 and 4^th December 2023, respectively.
   
5. The Defendants relied on the Affidavit of David Manau filed on 29^th November 2023.
   

ISSUES

6. (a)Whether or not the First Contemnor, Mr. David Manau can be held in contempt of the Court for wilfully disobeying the Court Orders of the Mendi District Court dated 4^th October 2005?

(b) Whether or not these contempt proceedings are frivolous and vexatious?

7. Order 14 Rule 42, 43, 44 and 45 of the National Court Rules state:
   

“42 Procedure Generally. (55/6)

(1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.

(2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by originating summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, unless the Court otherwise orders.

43 Statement of Charge. (55/7)

A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or originating summons.

44 Evidence. (55/8)

(1) Subject to Sub-rule (2), the evidence in support of the charge shall be by affidavit.

(2) The Court may, on terms, permit evidence in support of the charge to be given otherwise than by affidavit.

45 Service. (55/9)

The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.”

8. Further, The Constitution of the Independent State of Papua New Guinea, states:
   

“S.37(2) – A contempt of Court is an offence of a criminal nature committed against the Court for which a contemnor may be charged, convicted and punished by the Court, without following the usual criminal procedure prescribed by the written law.”

9. The First Contemnor argued that the proceedings were not personally served as stipulated in the NCR Order 14, Rule 45.
   
10. In Vaki v Baki [2014] PGNC 35, N5507, the motion was struck out as having not been served for non-compliance with NCR and without leave of the Court.
    
11. The Plaintiff admits that the First Contemnor was not personally served as required.
    
12. The Supreme Court in Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533, indicated that for charge of contempt to succeed the elements must be proven beyond a reasonable doubt as follows:
    
    1. “the order was clear and unambiguous;
    2. the order was properly served on the contemnor; and
    100. the contemnor deliberately failed to comply with it.”
         
13. I accept the argument by the Defendant that the Court Orders from the District Court dated 4^th October 2005 were unclear and ambiguous because neither the Secretary of the Department of Petroleum & Energy nor the Department of Petroleum & Energy were party to the proceedings and the Independent State of Papua New Guinea was also not a party to the proceedings.
    
14. The Oil and Gas Act 1998 specifies in s.176 as follows:
    

“(f) unless otherwise agreed between the State and the grantees of the benefit or prescribed by law, the beneficiaries of the trust shall be incorporated land groups on behalf of the grantees; and

(g) where project area landowners entitled to an equity benefit in accordance with this section and who are equally entitled amongst themselves to share in that benefit are represented by more than one incorporated land group (or other representative if permitted in accordance with Paragraph (f)) the incorporated land groups or other representatives shall be allocated the benefit in proportion to the number of project area landowners each represents;...”

15. I accept the argument by the First Contemnor that royalty payments should be paid to the Incorporated Land Groups (ILGs).
    
16. Further, the Land Groups Incorporation (Amendment)Act (No. 15 of 2018), impact on the District Court Orders results in those orders being unenforceable as the ILGs were required which is mandatory, to register or re-register on or by February 2022 and failure to do so would result in the ILG being non-existent.
    
17. Therefore, the ILG which the Plaintiff is referring to does not exist and the First Contemnor cannot be compelled to do something that is unlawful which would be the reality to comply with these District Court Orders.
    
18. Having considered this application in its totality, I am persuaded that the application is frivolous and vexatious.
    
19. Applying Tigam Malewo and Robert Demutt and Hens Guimben on their behalf and on behalf of Tama, Amisan and Daventem Clan Members and Dick Bomki, Non Korek, Norman Bonben and Silo Kondomo on their behalf and on behalf of Brulla Genho, Daupka and Kimka Clan Members v Keith Faulkner - Managing Director of Ok Tedi Mining Limited and Ok Tedi Mining Limited and PNG Sustainable Development Programme Company and BHP (PNG) Ltd and The Independent State of Papua New Guinea and Inmet Mining Corporation and BHP Biliton Ltd [2007] N3357 which states at paragraph 57:
    

“The Plaintiff’s claim is very ambiguous and lacking certainty in many respects,...”

20. This was affirmed in the Supreme Court case of Tigam Malewo and Robert Demutt and Hens Guimben on their behalf and on behalf of Tama, Amisan and Daventem Clan Members and Dick Domki, Nong Korek, Norman Bonben and Silo Kondomo on their behalf and on behalf of Brulla Genho, Daupka and Kimka Clan Members v Keith Faulkner, Managing Director, Ok Tedi Mining Limited and Ok Tedi Mining Limited and PNG Sustainable Development Programme Company and BHP (PNG) Limited and The Independent State of Papua New Guinea and Inmet Mining Corporation and BHP Billiton Limited, [2009] SC960, in which it was stated that the National Court must be satisfied that the Defendant “must establish one of (a), (b) or (c) in relation to Order 12, Rule 40 (1). See Theresa’s Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283.
    
21. The submission by the Plaintiff fails in relation to the contempt proceedings.
    

ORDERS

(a) The contempt proceedings are dismissed in its entirety as the requirements to prove contempt beyond reasonable doubt were not proven.

(b) The Plaintiff’s failure to serve the proceedings personally on the First Contemnor and further having not sought leave of the Court to deviate from the National Court Rules renders this application incompetent.

(c) The contempt proceedings are further deemed to be an abuse of Court process based on being vexatious and frivolous pursuant to Order 12 Rule 40 (1) (b) of the National Court Rules.

(d) The Plaintiff shall pay the First and Second Contemnor’s costs of and incidental to this proceeding, to be taxed if not agreed.

(e) Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Ordered accordingly.

Kipoi Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendant