Independent State of Papua New Guinea (Ex Parte Simon Kaumi (Junior) and Kevin Artango v John Raymond Gordon [1998] PGSC 8; SC543 (4 March 1998)

Unreported Supreme Court Decisions

SC543

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO 13 OF 1996
THE INDEPENDENT STATE OF PAPUA NEW GUINEA (EX PARTE SIMON KAUMI (JUNIOR) AND KEVIN ARTANGO - APPELLANTS
AND
JOHN RAYMOND GORDON - RESPONDENT

Waigani

Hinchliffe Jalina Akuram JJ
24 February 1998
4 March 1998

CONTEMPT OF COURT - Civil Contempt - Writ of Habeas Corpus Service Of - Personal Service Mandatory - National Court Rules O 17 R 6.

Counsel

C Coady for the Appellants

G Sheppard as Friend of the Court

4 March 1998

HINCHLIFFE JALINA AKURAM JJ: This is an appeal against conviction for Contempt of Court. The appellants are public servants employed as Migration Officers in the Department of Foreign Affairs and Trade. The appellants had detained the respondent at the Jackson’s International Airport for alleged breaches of Papua New Guinea’s migration laws.

Following an application by the respondent, a writ of habeas corpus was issued on 11 October 1995 requiring his production before the Court or a Judge on 12 October 1995. The writ is in the following terms:

“THE INDEPENDENT STATE OF PAPUA NEW GUINEA

To the Superintendent of Corrective Institution Greeting:

I command you that you have brought within the National Court of Justice (or before a judge in chambers) at Waigani, on the date and time served with this writ, the body of John Raymond Gordon, being taken and detained under your custody as is said together with the day and cause of his being taken and detained by whatsoever name be may be called. Therein, that the Court (or Judge) may there an there examine and determine whether such cause is legal.”

Following the issue of the writ of Habeas Corpus, an independent process server, Pala Wagula then proceeded to the Jackson’s Airport with one Dai Gabara to serve the Writ on Department of Foreign Affairs officials. Migration Officers in the area where passports are stamped for exit for Papua New Guinea refused their entry beyond that point into the international section of the airport. The writ was then handed to the counter staff. As Pala Wagula and Dai Gabara were getting into their car to leave, two migration officers followed them out to the car park carrying the writ and saying “we don’t accept” and other words to that effect and attempted to give the writ back to Mr Gabara. They continued to attempt to return the Writ as he got into the car and (probably) realising that they were not able to return the writ to him, threw the writ on the ground.

On 12th October 1995 the writ was not returned. The respondent also was not produced to the court or judge in chambers on 12 October as required by the writ.

Contempt charges were then laid against the appellants who were subsequently convicted of failure to return the writ on 12 October as well as failure to produce the respondent before the Court.

The grounds relied upon by the Appellants in this appeal, can be summarised into two basic grounds namely personal service and vicarious liability.

PERSONAL SERVICE

Service of Writ of Habeas Corpus are governed by O. 17 r. 6:

“(1) Subject to Sub-rules (2) and (3), a writ of habeas corpus must be served personally on the person to whom it is directed.

(2) If it is not possible to serve such writ personally or if it is directed to a superintendent of a corrective institution, police officer or other public officials, it must be served by leaving it with a servant or agent of the person or agent of the person to whom the writ is directed at the place where the person restrained is confined or restrained.

(3) If the writ is directed to more than one person, the writ must be served in the manner provided by this Rule on the person first named in the writ, and copies must be served on each of the other persons in the same manner as the writ.

(4) There must be served with the writ a notice in Form 121 stating the date on which the person restrained is to be brought and in default of obedience proceedings for committal of the party disobeying will be taken.”

Personal Service is therefore a mandatory requirement under O. 17 r. 6 (1). If personal service is not possible then service can be effected in accordance with Sub-rules 2 and 3. Even if service is effected either under any of sub-rules 1, 2 or 3, a person cannot be penalised for failure to comply with the terms of the writ unless a notice in accordance with Form 121 which sets out, among other things, the penalty for failure to comply, is also served.

The purpose of requiring the form 121 notice is in the words of Luxmore J in Iberian Trust Limited, Founders Trust and Investment Co Limited [1932] 2 KB 87 at 97.

“to call to the attention of the person to do the act that the result of disobedience will be to subject him to penal consequence.”

In the case before us, we find that the whole process from the issue of the write of habeas corpus to its execution was without doubt irregular. Mr Gordon was kept at Jackson’s International Airport because his visa had been revoked but the writ which was sought to be served on Foreign Affairs officials was directed to the Superintendent of the Corrective Institution. It should have been obvious to Messrs Wagula and Gabara that the airport was not the Corrective Institution. There is no evidence that even the wrongly addressed writ was served on Messrs Kaumi and Artango.

Further more, they did not amend the writ so as to direct it to the Minister for Foreign Affairs or Secretary for Foreign Affairs to avail themselves of the provision of O. 17 Sub-rules 2 and 3 so that service could be effected by leaving the writ with any migration officer at the airport.

For the forgoing reason we find the learned trial judge erred in law in convicting the Appellants. We accordingly allow the appeal, quash the conviction and order that Appellants be discharged forthwith.

In view of the conclusions we have reached it is not necessary for us to deal with the other grounds.

Each party shall bear his own costs.

Lawyer for the Appellants: Chris Coady and Associates