PNG Power Ltd v Augerea [2013] PGSC 53; SC1245 (7 August 2013)

SC1245

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 135 OF 2006

IN THE MATTER OF SECTION 225 OF THE CONSTITUTION

AND:
IN THE MATTER OF CONTINUOUS POWER FAILURE IN MADANG

AND:
PNG POWER LTD
Appellant/Applicant

AND:

IAN AUGEREA AS REGISTRAR OF THE NATIONAL COURT
Respondent

Waigani: Kandakasi, Manuhu, Kawi, JJ.
2010: 1st September

2013: 7th August

CONSTITUTIONAL LAW – Application of s.225 of the Constitution – Applicable in appropriate cases to ensure and enable a smooth functioning of "all constitutional institutions and that of all constitutional office-holders – All "governmental bodies" duty bound to discharge duty under s.225 – National Court can invoke s. 255 summarily in appropriate cases.

CONSTITUTIONAL LAW – WORDS & PHRASES - "governmental bodies" - Means the National Government; or a provincial government; or an arm, department, agency or instrumentality of the National Government or a provincial government; or a body set up by a statute or administrative act; for governmental or official purposes – Test to determine if - All entities established by the National Government or a provincial government or a local level government, with some form of government control and ownership and funding for an important public purpose or function is a governmental body despite having a private corporate status.

APPEALS & REVIEWS – When available? – Once a final decision has been arrived at by the court or lower tribunal and there is no opportunity to vary or set aside the decision or orders – No power in superior courts to interfere – Appeal against an order subject expressly to a variation, revocation or amendment amounts to an abuse of the process of the Supreme Court.

CONTEMPT OF COURT – Only unwritten offence for which a person can be charged and dealt with – Definition of - Types of contempt – Contempt in the face of the Court and contempt outside court's witness – Contempt in the face of the court can be dealt with summarily and without any formal Court proceedings – Court to observe alleged contemnors right to be heard before judgment – Section 37 of the Constitution.

Papua New Guinea Cases Cited:

Philip Takori v Simon Yagari (2008) SC905.
Shelley v. PNG Aviation Services Pty. Limited [1979] PNGLR 119.
Boyepe Pere v. Emmanual Ningi (2003) SC711.
The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v. John Talu Tekwie (2006) SC843.
Grand Chief Sir Michael Thomas Somare v. Chronox Manek (2011) SC1118.
Telikom PNG Ltd v ICCC (2008) SC906.
The Attorney-General & Ors v. Dr Pirouz Hamadian – Rad (1999) SC 618.
Andrew Kwimberi of Paulus M Dowa Lawyers v The Independent State of Papua New Guinea (1998) SC545.
Metta v. State [1992] PNGLR 176.
Poka v. Papua New Guinea [1988] PNGLR 218.
SCR No. 3 of 1984; Ex-parte Callick and Koroma [1985] PNGLR 67.
Re Passingan Taru [1982] PNGLR 292.
Re Rooney (No. 2) [1979] PNGLR 448.
Re Paul Luben & David Poka (1987) N612.
Poka v. Papua New Guinea [1988] PNGLR 218.
The State v. Mark Taua:Re Awaita [1985] PNGLR 179.
The State v. Raymond Tupundu (1996)N1536.
The State v. Lucas Sosorua (1996) N1494.
The State v. Foxy Kia Kala; Corney Wiyam (1994) N1192.
Stephen John Rose v. Neville Devete (2007) N3327.
Ross Bishop & Ors v. Bishop Brothers Engineering Pty Ltd & Ors [1988-89] PNGLR 533.
Public Prosecutor v. Nahau Rooney (No 2) [1979] PNGLR 448.
Supreme Court Reference No 3 of 1984; Ex Parte Rowan Sidney Callick and Joe Koroma [1985] PNGLR 67.
Robinson v. The State [1986] PNGLR 307.
Leto Pup v Yangao Mara (Unreported, National Court, 3/4/1996).
The Papua New Guinea University of Technology v. National Academic Staff Association of the Papua New Guinea University of Technology (2007) N
Re National Court Circuit, Southern Highlands Province, October 1989 [1988-89] PNGLR 435.
Re Criminal Circuits in Eastern Highlands and Simbu Provinces [1990] PNGLR 82.
Paias Wingti v. Kala Rawali (2010) N3959.
In the Matter of Re-Election of the Governor-General; Reference by the Morobe Provincial Executive (2010) SC1089.
Motu Koita Assembly v National Capital District Commission (2011) N4429.
PLAR No. 1 of 1980 [1980] PNGLR 326.
SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693.
The State v. Downer Constructions (PNG) Limited (2009) SC979.
Inakambi Singorom v. Klaut [1985] PNGLR 238.
Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v. Chief Collector of Taxes (2007) SC853.
Norah Mairi v. Alkan Tololo, Secretary for Education [1976] PNGLR 125.
Jennifer Jean Scott v. Micheal George Scott (2009) N3881.
Internal Revenue Commission v. Dr Pirouz Hamidian-Rad (2002) SC692.
Misima Mines Ltd v. Collector of Customs (2003) N2497.
Reservation Pursuant to Section 15 of the Supreme Court Act (2001) SC 672.
National Capital District Commission v. Jim Reima, on behalf of himself & 120 Youth Groups of Moresby North East (2009) SC993.
Mt Hagen Urban Local Level Government v. National Housing Corporation (WS 1194 of 2002 unreported decision of 20th April 2004 - Mogish J.
Okam Sakarius v. Chris Tep (2003) N2355.
Albert Areng v. Gregory Babia (2005) N2895.
Naomi Vicki John v. National Housing Corp (2005) N2770.
Wamena Trading v. Civil Aviation Authority (2006) N3058.
Naomi Vicky John v. National Housing Corporation (2005) N2770.
Konze Kara v. Public Curator of PNG (2010) N4048.
Sengus Investment Ltd v National Broadcasting Corporation (2010) N4129.
Anave Megaraka Ona v. National Housing Corporation (2009) N3623.
Sarakuma Investment Ltd v Peter Merkendi (2004) N2629.

Overseas cases cited:
Attorney-General v. Times Newspapers [1974] AC 273.
Ambard v A-G for Trinidad & Tobago [1936] AC 322.
Balog v. Crown Court at St. Albans [1974] 3 ALL ER 283.
Weston v. Central Criminal Court's Administrator [1977] QB 32.

Counsel:

Mr. F. Waleiliai, for the Appellant
Mr. W. Hagaguno, for the Respondent

7th August, 2013

1. BY THE COURT: PNG Power Limited is appealing against a decision and orders of the National Court under s. 225 of the Constitution for a continuous supply of electricity supply by PNG Power Limited to the National Court in Madang when the Court sits. Those orders continue to apply until they are varied, revoked or amended by a Judge of the National Court.

Relevant Issues

2. PNG Power pleads 7 grounds for its appeal. But all of these can be classified into only two main grounds. These are: (1) whether PNG Power and its employees were accorded their right to be heard before the decision; and (2) whether the National Court correctly applied the provisions of s. 225 of the Constitution? There are a number of subsidiary issues such as the right to legal representation and service of the originating process. These can be mentioned where appropriate and determined in the course of answering these main issues.

Preliminary Issue

3. But before we get into the substantive issues, there is a preliminary point that can be readily and easily dealt with. This concern the nature of the orders appealed against. The orders read as follows:

"It is ordered that:

1. In the event of a planned or unplanned power outage, PNG Power Limited in Madang must maintain power supply to the National Court premises in Madang at all times.
   
2. This order applies when the National Court is sitting in Madang.
   
3. These orders shall remain in force until varied, revoked or amended by a Judge of the National Court."
   
4. As can be easily noted, these orders are not final in nature. PNG Power's right to go back to a Judge of the National Court for variation, revocation or amendments are expressly retained. The law in relation to appeals and reviews is trite both in our jurisdiction and overseas with judicial systems similar to ours. The appeal and or review processes are available only in cases where, a court of competent jurisdiction has come to a final decision and is not open for variation, revocation or amendment by the same Court.[1] Where the Court or a lower tribunal is still seized of the matter or there is no serious legal impediment to the parties going before the lower Court or the tribunal, the higher court has not and cannot assume jurisdiction under whatsoever, argument or reasoning because the process below has not yet reached finality to warrant an appeal or review. The higher appellate or review authority assumes authority only upon the lower tribunal having completed its task.
   
5. The unanimous decision of the Supreme Court in Grand Chief Sir Michael Thomas Somare v. Chronox Manek,[2] went at great lengths to discuss and highlight the problems of ready intervention or interference with a lower investigatory or tribunals process until after a final decision is arrived at. After carefully going through the relevant arguments and considerations, the Supreme Court at page 25 of its judgment said:
   

"58. Carefully weighing the two sides and all of the cases cited ..., we are of the firm view that, the interest of justice and the need to allow for the due process of the law to take its proper course for the greater good of society will be better served by the superior courts, that is the National Court and or the Supreme Courts as the case might be, maintaining the age old tradition of not intervening. This should be without any exception because as this Court said in SC Ref No. 3 of 2005, all issues concerning both the process and the substance can be taken up as a preliminary point when the proper court or the tribunal assumes jurisdiction and is seized of the matter. If after that process, the court or the tribunal finds for the accused or the alleged offender that could in appropriate cases, form the foundation for appropriate remedial actions as highlighted by this Court in Pato's case.

59. An intervention by the superior courts allows for instances, stopping the process only to restart it again. By then, the freshness of the evidence, availability of witnesses and interest in seeing justice being done gets lost and ultimately justice is not served. Justice can only be done without much delay and all steps that need to be taken being taken in a timely and orderly fashion. Otherwise, the converse of that is true. Justice delayed is justice denied with those who seek out to delay justice end up gaining. If those who are accused or implicated have nothing to hide they would readily allow the process to take its proper course..."

6. That was in the context of investigations and referrals for prosecution under the Leadership Code and a ready prevention of leadership tribunals from assuming jurisdiction and expeditiously dealing with allegations of leadership breaches. In the context of dealing with that issue, the Court considered the practice of ready prevention or interference by the superior courts into the committal process. Whilst acknowledging that, the Supreme Court's views were not specifically directed at any instance of the Supreme Court intervening in a matter in which the National Court was properly seized of, we are of the firm view that the same comments, views and sentiments equally apply in the context of the Supreme Court in the guise of an appeal or review assumes jurisdiction over a matter that is properly not completed and or concluded in any matter that is well within the jurisdiction of the National Court. This is particularly so in cases where an appeal is sought out of any interlocutory order or direction for the proper and timely disposition of a case, or on the dismissal of an application for summary or default judgment. By the very nature of such orders, they are only temporary and can be changed by variation, revocation or affirmation. The Court below is still vested with the necessary powers and the ability to revisiting those orders or the effect of such orders. They are by no means final, until the Court has come to a final decision on the substantive issues and the substantive matter itself. By then the Court below will become functus officio and will be at no liberty to deal with the matter or issue again.
   
7. In the case before us, the orders were clearly, interlocutory. By the third term of the orders, they were expressly left open for variation or revocation by a Judge of the National Court. If those orders aggrieved PNG Power or made things hard for PNG Power, it still had and has the right to return to the National Court and apply for a variation or revocation of those orders that PNG Power failed to do. Instead, it chose to come to this Court by way of this appeal. We find with no hesitation that this amounts to an abuse of the process of this Court. This Court has the necessary powers to protect its processes and itself from being abused as discussed in full and set out in full by the majority's decision in the matter of Telikom PNG Ltd v ICCC,[3] endorsing the National Court's views on point, which we need not repeat. Accordingly, we would dismiss this appeal on this basis.
   

Right to be heard

8. Turning now to the substantive issues, we firstly turn to deal with the issue of PNG Power not being accorded its right to be heard. This issue arises from the following claims made in PNG Powers notice of appeal in terms of it not being given:
   
   • (a) notice of any proceedings commenced in the National Court;
   • (b) an opportunity to be heard before the decision or order;
   • (c) an opportunity to explain to the Court why there had being disruptions of electrical power to the Court; and
   • (d) an opportunity to seek legal representation.
     
9. The right to be heard is part of the protection provided by s. 37 of the Constitution which applies particularly to "persons in custody or charged with offences."[4] Following on from that, no person can be convicted of an offence "that is not defined by, and the penalty for which is not prescribed by, a written law." The only permitted exception to that is the "the offence commonly known as contempt of court."[5] Subsection (3) then accords a person who is charged with an offence, unless the charge is withdrawn, a right to a fair hearing within a reasonable time by an independent and impartial court.[6] All persons who are thus charged and brought before a court are presumed innocent until proven guilty according to law and are entitled to be informed promptly in detail and in a language they understand, the nature of the charge.[7] Also, they must be given adequate opportunity, time and facilities for the preparation of their defence and be permitted to defend themselves in person or through a legal representative of their choice.[8] Other subsections of s. 37 also give persons who are charged with offences a right to:
   
   • (a) facilities to examine in person or by their legal representative the witnesses called against them and for them to call their own witnesses;[9]
     • (b) except with their consent, the hearing must be in their presence;[10] and
     • (c) the principles of natural justice apply.[11]
       
10. The opening provisions of s. 37 make it abundantly clear that this provision applies to all persons who are charged or are in custody for an offence that is defined with its penalty prescribed by a written law, except only for a charge of contempt of court. In other words, no persons can be held in custody or charge with an offence which a written law does not define and prescribes its penalty, except only for the offence known as contempt of court.
    
11. Contempt of court is thus not defined with its penalty prescribed by any written law because it is inherent with the powers of the Court. As to what type of conduct or inaction might amount to contempt, one need to turn to the courts' past judgments to see what meaning and or definition they have given to this particular and unique offence. For the common law world, we turn to the decisions of the superior court of records of England such as the House of Lords and Privy Council and the many others for guidance and then to our local authorities which have adopted and applied the relevant principles.
    
12. One of the often cited English decisions is the decision in Attorney-General v. Times Newspapers.[12] There, His Lordship, Lord Diplock defined contempt of court in these terms:
    

"Contempt of court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus form many forms.

To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also – and this more immediately – the particular interest of the parties to the case."

13. We find further elaboration of this definition in the decision in Ambard v. A-G for Trinidad & Tobago,[13] which accepted a definition by an earlier Queen's Bench decision in these terms:
    

"It will be sufficient to apply the law as laid down in Reg v Gray [1900] UKLawRpKQB 63; [1900] 2 QB 36 by Lord Russell of Killowen CJ: 'Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke characterized as 'scandalising a Court or a judge'.

14. In our jurisdiction, this Court in The Attorney-General & Ors v. Dr Pirouz Hamadian – Rad,[14] adopted and applied these definitions. Before that, the Court in the 1998 case of Andrew Kwimberi of Paulus M Dowa Lawyers v The Independent State of Papua New Guinea,[15] also had regard to the earlier English decisions and brought out clearly the kinds of conduct or inaction that would amount to contempt of Court as well as the procedure to deal with contempt cases. In so doing, it clearly noted in short the definition of contempt of Court as "an act or omission, committed in the face of the Court or outside Court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice".[16] In order for such conduct to be contempt of Court, the conduct must "present a real risk, as opposed to a mere possibility, of interference with the due administration of justice.'"[17] The Court also re-emphasized the principle that, "the purpose of contempt powers is to preserve and protect the general community interest, not the Court's own dignity, in suppressing unjustifiable interference in the authority of the Courts of the land."[18]
    
15. It should be clear that, there are two broad categories of the offence of contempt of court. The first is contempt in the face of the court, while the second is contempt outside the court. Lord Denning MR in the English case of Balog v. Crown Court at St. Albans[19] considered and answered the question, what is contempt in the face of the Court as follows:
    

"Its meaning is, I think, to be ascertained from the practice of the judges over the centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all contempt of which a judge of his own motion could punish a man on the spot. So 'contempt in the face of the Court' is the same thing as 'contempt which the Court can punish of its own motion'. It really means 'contempt in the cognisance of the Court."

16. His Lordship went on to set out three specific instances of "contempt in the face of the Court" namely: (1) in view of the Court; (2) inside the courtroom but not seen by the judge; and (3) some distances away from the Court. In the same case, Lawton CJ without limiting the list mentioned the following as instances of contempt in the face of the Court which are frequently experienced by or reported to the Court:
    
    • (1) refusal to attend court by witnesses and jurors who have been duly summoned to attend;
      
    • (2) duly sworn witnesses refusing to answer questions;
      
    • (3) persons in court who interrupt court proceedings by insulting the judge, shouting or otherwise making a disturbance;
      
    • (4) persons in Court who assault or attempt to assault or threaten the judge or any officers of the Court whose presence is necessary;
      
    • (5) persons in or out of Court who threatens those about to give evidence or who have given evidence;
      
    • (6) persons in or out of Court who threaten or bribe or attempt to bribe jurors or interfere with their coming to Court; and
      
    • (7) persons out of Court who publish comments about a trial going on by revealing a Defendant's criminal record when the rules of evidence exclude it.
      
17. In the subsequent case of Weston v. Central Criminal Court's Administrator,[20] Lord Denning MR expanded on the above by adding to the list of possible instance of contempt of court, a lawyer's failure to attend court on the scheduled date, time and venue. This shows that the above list is by no means exhaustive. Instead, it is dependent on the particular facts of each case and that the list is expandable. This is understandably so because, the circumstances or instances in which there could be a case of contempt of Court can never be defined with certainty and limitation.
    
18. The decision in the Andrew Kwimberi case accepted these principles and made it clear that contempt in the face of the Court can be dealt with summarily. That decision considered as sound and adopted the decision of His Lordship Lord Denning MR in Balog v. Crown Court at St. Albans (supra) where is Lordship said[21]:
    

"Gathering the experience of the past...then whatever expression is used, a judge...could always punish summarily of his own motion for contempt of Court whenever there was gross interference with the Court of justice in a case that was being tried, or about to be tried, or just over...no matter whether the judge saw it with his own eyes or was reported to him by officers of the Court, or by others ...whenever it was urgent and imperative to act at once..

...

This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the judge to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately...so as to maintain the authority of the Court...to prevent disorder...to enable witnesses to be free from fear and jurors from being improperly influenced and the like. It is of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt: .... But properly exercised, it is a power of the utmost value and importance which should not be curtailed."

19. Lawton CJ in the same case added:
    

"In my judgment this summary and draconian jurisdiction should only be used for the purpose of ensuring that a trial in progress or about to start can be brought to a proper and dignified [start and or conclusion] and without disturbance and with a fair chance of a just verdict or judgment."

20. The Supreme Court in the Andrew Kwimberi case endorsed the view that the summary process is available and can be invoked in appropriate cases. However, noting that, this might affect the liberty of the contemnors, the court should proceed cautiously and only in the clearest of cases. In its own words per Injia (as he then was) with whom Woods and Hinchliffe JJ., agreed said:
    

"The summary procedure to be adopted in dealing with contempt committed in the face of the court...under O. 14 r. 37-40 is comprehensive...There is no room to invoke the ordinary criminal procedure. In my view, the rules of practice and procedure in ordinary criminal cases, as technical and rigid as they are, are never intended to apply to contempt proceedings. The overriding principle however, is the principle of fairness as provided for in Constitution, S. 59. It is the duty to act fairly and be seen to be acting fairly. The procedure set out in O. 14 r. 39 is intended to ensure fairness in the summary procedure. This summary procedure however, gives the Court the immediate and ultimate power to decide the fate of the contemnor. To some extent, it works to the detriment of the contemnor in that he may be deprived of his personal liberty without first being heard e.g. arrest upon oral order. The summary procedure has some associated risks such as perceived bias of the judge, the judge's perception of contempt committed before hearing the contemnor, arrest of the contemnor on an oral order before hearing the contemnor, absence of any formal documentation of the contempt charge, etc. But that is a procedure which the Court of necessity must possess. But then again, the overriding principle is one of fairness. In order to ensure fairness, if a judge opts to employ facets of the procedure under O. 14 r. 41-50, such as by motion or originating summons through the Registrar, in order to afford the contemnor adequate time and opportunity to respond to the charge of contempt, then there can be no argument of irregularity in the contempt procedure working to the detriment of the contemnor. In any case, the use of such combined procedure would not void the summary proceeding... But then again, '.... this summary power for punishing for contempt should be used sparingly and only in serious cases ..... its usefulness depends on the wisdom and restraint with which it is exercised' per Lord Goddard in Parasharam Detaram Shandasani -v- King Emperor WALA, 16 November 1951 quoted in Poka (at 221)."

21. This summary process has been applied mainly against a number of lawyers for non appearance or attendance on schedule days or dates. Cases on point include Re Paul Luben & David Poka;[22] Poka v. Papua New Guinea;[23] The State v. Mark Taua:Re Awaita;[24] The State v. Raymond Tupundu;[25] The State v. Lucas Sosorua;[26] The State v. Foxy Kia Kala; Corney Wiyam[27] and Andrew Kwimberi of Paulus M Dowa Lawyers v. The Independent State of Papua New Guinea (supra). One of the more recent cases joining this growing list of contempt by lawyers includes for example the case of Stephen John Rose v. Neville Devete.[28]
    
22. Clearly however, this summary process is not available in contempt outside the Court. The types of cases that would come under this category again without limiting the list include:
    
    • (1) disobedience of Court orders;[29]
    • (2) publications of and concerning the court and court proceedings which do not immediately interfere with or affect the conduct of any proceedings;[30]
    • (3) derogatory comments, abusive language or otherwise a personal attack of a particular judge;[31] and
    • (4) failure by court officers to take steps they should have taken for the smooth administration and delivery of justice.[32]
      
23. Again the process to follow in dealing with an allegation of contempt was made clear by the Supreme Court decision in the Andrew Kwimberi case. There, the Court said, although contempt proceedings are criminal in nature, the procedure to follow is as prescribed and comprehensively laid down by the National Court Rules O.14 rr. 37 - 50. A non compliance of this procedure does not render the proceedings void. Under this procedure, all that is needed is a notice of motion (if the contempt arises out of an existing proceeding) with a statement of the charge, which is supported by an affidavit of the relevant facts giving rise to the charge. These must then be filed and served on the alleged contemnors. Thereafter, the charge would be heard in the usual way as in a criminal process[33] and a decision arrived at.
    
24. The motion would be moved by the Attorney General or parties aggrieved by the contemnor's actions and not the Court itself. This is so to avoid an appearance of the Court or the judge being both a prosecutor and judge except in cases where the summary process is warranted for an immediate response, in which case the Court can act on its own motion, without the formal filing and serving of a motion and or a formal charge for contempt of Court.
    

Present Case

25. In the present case, PNG Power has not raised section 37 or any of the subsections of the Constitution. The basis of PNG Power's first major ground of appeal, concerns the National Court orders made on 5th December 2006 and centers on a claim that, the learned trial judge erroneously proceeded to deal with them in the way His Honour did because:
    
    • (1) there was no proper mode of commencement of proceedings in terms of an originating summons under O. 14 r 42 (2) and O 4 r 1 of the National Court Rules; and
    • (2) no one made an application for urgent ex parte orders; and
    • (3) there was no evidence of a deliberate or reckless intention by PNG Power or its servants to interfere with the due administration of justice or ignore the National Court's letter of 5th December 2006.
      
26. The events giving rise to these issues is straight forward. The National Court circuit then presided over by His Honour Sevua J., (as he then was) commenced on 4th December 2006. The Court experienced power failure and was forced to adjourn to the next day at 9:00am. Staff at the Court house informed His Honour that, there had been disruptions to electricity supply for the past two weeks and what was happening then was a continuation of it. At 8:15am the next day when His Honour went to the Court house ready to discharge his duties and responsibilities as a Judge of the National Court, he was greeted with more disruptions to the supply of electricity to the Court. That continued until 9:55am only to get disrupted again at 12:00 noon and after a brief restoration again at 2:45pm. This caused his Honour to write a letter to the manager, PNG Power Madang, noting the above events and expressed his concern that such disruptions have been ongoing not just in Madang but the whole country causing a lot of inconveniences to business and government and other private persons alike which depend on PNG Power for electricity. His Honour thus noted in his letter that, this has become a norm rather than the exception.
    
27. In his letter, His Honour also noted that despite PNG Power being privatized and was trading as a private company, it was still a government institution having duties and responsibilities over the supply of electricity to the entire country. It therefore had a constitutional and public duty to ensure that they provided adequate and reliable electrical services to the public and in particular to key public services like public hospitals and in particular the Courts. His Honour then asked PNG Power to immediately rectify the disruption and warned that, if this was not down, the Manager could be jailed. His Honour expressed trust in PNG Power fixing the problem and that it would not be necessary to give effect to the warning. Unfortunately, the disruptions continued thereby seriously affecting the Court's schedule.
    
28. Given the continuous disruptions, His Honour, summoned the local PNG Power's manager in Madang to appear in Court and provide an explanation. The Manager failed to appear. Court staff constantly went to the Manager's office to see if he was there but was repeatedly told the manager was elsewhere or sick. This caused His Honour to order the appearance of both the local Manager and the Chief Executive Officer of PNG Power Ltd at 9:30am on 11th December 2006 and warned that, a failure to comply will result in the arrest of both of them.
    
29. On 11th December 2006, both man appeared before His Honour. His Honour explained why they were ordered to appear before him and outlined the above background. His Honour then noted that, despite the orders and his letter, power disruptions continued. His Honour also pointed out that, he had earlier in June of the same year, warned the Manager at Madang. Hence, this continuing problem of power disruptions and the court circuit being seriously affected was not a new concern. He then called for each of them to explain.
    
30. The Manager in Madang explained that he was not able to appear when he was earlier summoned by the Court because he had been sick with two boils, one at the back and another in front area somewhere where he pointed to. He went on to say, this made it hard for him to go to work but to remain home. He did not produce any medical or other evidence to substantiate his boil claims. He claimed no knowledge of the National Court sittings and the requirement for him to appear and explain the power outages. This is despite the PNG Judiciary widely publishing its annual calendar which shows the various circuit dates.
    
31. The Chief Executive Officer, Mr. Patrick Mara and the Madang Provincial Manager explained that, ongoing outages were due to power supply lines between Yonki and Madang, some of which went through rough terrain being affected. When there were heavy rains, some of the lines were seriously affected due to landsides and other factors. They also acknowledged that amounts of power outages were common and so load were shading and blackouts throughout the country and Madang was no exception. They further stated that, the amount of power PNG Power was able to generate was not able to meet the demands. Load shading and blackouts were thus inevitable and ongoing. They failed to give any specific instances which seriously affected the delivery of their services and how that was a matter beyond their ability to overcome, given PNG Power's monopoly of the power industry.
    
32. Furthermore, they explained that, sometimes PNG Power routinely shuts down their machines for routine checking and maintenance. When that happens, it further lessens the amount of power generated to meet the demands. This inevitably results in blackouts and load shading. Mr. Mara explained that, it will take substantial amounts of money running into the millions of Kina to completely fix the problem. Both men explained that during power outages especially the schedule ones, advanced notice would be given. All other unplanned break down in machines or the transmission lines would occur without prior notice or warning to PNG Power's customers. Moreover, they pointed out that, key service areas like the public hospitals would be excluded or the amount of disruptions to such places would be minimal during load shading. They did not include the Courts as a key service area. Additionally, they explained that, this problem has been and continues to be constant and ongoing throughout the country from the nation's capital city, Port Moresby to the rural areas which have no electricity at all. Despite that, the chief executive of PNG Power was not able to outline what steps or measures him and his company has initiated to overcome the problem.
    
33. Given this background facts, we find that the first major ground of appeal is seriously flawed for a number of reasons. Firstly, the notice of appeal clearly reads it is an appeal only against the decision or orders made on 12th December 2006. Yet in the submissions filed and read to at the hearing of the appeal before us, this appeal expressly concerns the orders of 5th December 2006. This ground of the appeal is therefore incompetent for that reason.
    
34. Secondly, learned counsel for PNG Power correctly notes that, what the learned trial judge did was indeed proceed to deal with his client's summarily for contempt in the face of the Court. The main argument against the way in which the learned trial judge proceeded in that way is that, the Court could not proceed in that manner, except only through an originating summons under which a party applies for an urgent interim ex parte order, supported by evidence disclosing a deliberate or reckless intention by PNG Power or its servants or agents to interfere with the due administration of justice or ignore the National Court's letter of 5th December 2006.
    
35. The learned counsel for PNG Power does not give any consideration whatsoever, to the law in relation to the offence of contempt of Court as we set out in some detail in the earlier part of this judgment. This failure of counsel and therefore PNG Power, consequently fails to duly note the two broad categories of contempt of Court, in terms of contempt in the face of the Court and contempt of Court outside the Court. This is important because as we noted, contempt in the face of the Court can be dealt with summarily without the need for the formalities outlined in the National Court Rules or elsewhere. This is so because; this kind of contempt requires immediate and quick action of the Court. There is therefore no need for the calling of any evidence, because the Court witnesses or sees the actions amounting to contempt. What is required however, to be observed in such a case is the need to accord the contemnors their natural justice, namely give them an opportunity to be heard in their defence and if the contemnors so choose, hear them before final judgment or order. Hence, it is erroneous on the part of PNG Power and its counsel to think that, contempt in the face of the Court cannot be dealt with summarily and only in the way they suggest.
    
36. Thirdly, there was clear and uncontroverted evidence of constant, if not, persistent interruptions to Court proceedings affecting not one particular case but many in Court. As the learned trial judge correctly noted, power outages or blackouts have become a norm rather than the exception. It is not a peculiar problem for Madang but the entire nation. Court proceedings are constantly interrupted very abruptly by PNG Power's constant often unannounced power blackout or outages. Sometimes these outages are experienced everyday, if not, from time to time and at times whole days. Businesses, government and the ordinary people who depend on PNG Power lose their businesses and property and in the consequence suffer much damages, loss, pain and inconveniences. The Courts get shut down which seriously affects their schedules which has an overall negative impact on its endeavors to expeditiously deal with and dispose off cases which come before them. On occasions, Judges have been interrupted in their train of thought and reason, especially when in the process of deliberating on and giving ex tempo judgments. Every person that comes to court has a legitimate desire to have their case heard and disposed off without unnecessary delay and disruptions caused amongst others by constant power outages and or blackouts which are clearly manageable and avoidable.
    
37. What happened in Madang in the witness of the learned trial judge was public knowledge. There was uncontroverted evidence before the learned trial judge that there had been power blackouts for the two weeks leading up to the date when the National Court circuit in Madang commenced. That continued and continues even today. This has and continues to seriously affect the smooth conduct of court proceedings and their conclusions. The learned trial judge sent for the PNG Power Manager in Madang several times to go to Court and explain. They were constantly met with a response of either the Manager was sick out somewhere else. This caused the learned trial judge to make the orders he made on 5th December, requiring the Manager and the CEO of PNG Power to appear in Court on 11th December 2010 and explain. Hence, we find that the learned trial judge did have uncontroverted evidence and His Honour did have the necessary basis, power and authority to make the orders he made on 5th December 2010.
    
38. There can be no doubt that the learned trial judge accorded the PNG Power manager in Madang repeated opportunity for him to appear and be heard before any decision could be made. The manager chose not to appear in Court and or did not give any good reason for his non attendance. The Court could have but did not proceed to make any orders adverse to PNG Power and its servants and agents. The only order the learned trial judge made was for the Manager and his CEO to turn up in Court for them to provide an explanation that was promptly required but was not forthcoming. The order gave them the opportunity to be heard before the Court could make an order concerning the constant interruptions to the National Court circuit in Madang due to power outages. Hence, we cannot see the logic of PNG Power's arguments against the orders for its manager in Madang and its CEO to appear in Court. What is clear though is that PNG Power is appealing against an order that accords these officers and therefore PNG Power an opportunity to be heard.
    
39. For these reasons, we find that there no basis for the first major ground of appeal. Instead, we find it is incompetent and in any case, without any merit. Accordingly, we would order a dismissal of this ground.
    

Whether National Court Correctly Invoked the Provisions of s.225 of the Constitution?

40. We now turn to a consideration of the next major issue of whether the National Court correctly invoked the provisions of s. 225 of the Constitution. PNG Power's main arguments are these:
    
    • (1) It is private company to which s.225 does not apply;
      
    • (2) Section 225 cannot be summarily invoked by the National Court; and
      
    • (3) The learned trial judge erred considering Courts services as an "essential service".
      
41. In order that there is proper context and understanding of the full meaning and effect of the provisions of s.225, and properly understand PNG Power's arguments, we consider it necessary that we should set out s. 225 in full and consider its proper meaning and effect. We start that process with a restatement of the provision which is in the following terms:
    

"225. Provision of facilities, etc.

Without limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders."

42. This is not the first case in which the situation has arisen for a consideration and application of this provision. The very first time in which that situation arose was in the case of Re National Court Circuit, Southern Highlands Province, October 1989.[34] In that case, the Public Prosecutor complained to a judge on circuit that he had been denied accommodation by a private hotel business due to an alleged outstanding accommodation costs incurred by representatives of the Public Prosecutor's and the Public Solicitor's Offices which remained unpaid by the Department of Justice. The Court held that problem presented the possibility of the National Court Criminal Circuit being put at risk by lack of provision of facilities to constitutional offices. The Court was thus of the view that, if the accommodation costs remaining unpaid as alleged, a breach of duty under s. 225 of the Constitution, would arise. In the circumstances, the Court ordered a payment of the outstanding account within 7 days.
    
43. Not long after the above case, a similar but a different situation to the above case arose in the matter of Re Criminal Circuits in Eastern Highlands and Simbu Provinces.[35] There, the State through its Secretary for Finance cut 25 per cent from the budgetary appropriation by the National Parliament to the National Court. That resulted in a cancellation by the Chief Justice of a criminal circuit of the National Court. The cancellation of the criminal circuit meant that no criminal trials would be held in some areas for five months and that the trials of those on remand would be further delayed. The Court held:
    
    • (1) The cancellation of the criminal circuit of the National Court caused and would continue to cause unreasonable delays in bringing persons committed for trial before the court contrary to s 37 (3) of the Constitution.
      
    • (2) The reduction of the budgetary appropriation for the National Court by administrative fiat of the Secretary for Finance was unconstitutional as being in breach of ss 209 (2), 209 (2A), 209 (2B), 210 (2), 210 (3), 210 (4), 211 and 225 of the Constitution.
      
    • (3) The reduction of the budgetary appropriation for the National Court was a breach of duty within s 23 of the Constitution.
      

(4) Pursuant to s 23 (2) of the Constitution, interim orders should be issued to maintain the status quo prior to the reduction of the budgetary appropriation and should remain in effect until varied by Parliament, the Supreme Court or with the consent of the Chief Justice.

44. About two years later in the matter of Paul Metta v The State (supra), invoking s. 225 of the Constitution, the National Court found Mr. Paul Metta guilty of contempt and imprisoned him for one month. His offence was a failure to meet and pick up on time a National Court Judge travelling into Kimbe for a National Court circuit there. On appeal, the Supreme Court noted that, the trial judge had found the appellant guilty without giving him the opportunity to be heard first. The Court also noted that, the incident occurred outside any court sitting and in any case well before any formal commencement of the circuit. Further, the Court was of the view that, there was no evidence demonstrating that the actions or inactions of the appellant was calculated to interfere with the due administration of justice. In the circumstances, the Court was of the view that, the learned trial Judge erred in dealing with the appellant in the way he did. In arriving at that decision, the Supreme Court was of the view that, detailed process for contempt of Court under the National Court Rules should have been followed since nothing happened in court and in witness of the Court.
    
45. In a number of other cases, both the National and the Supreme Court expressed the view that, s. 225 could easily be invoked to address issues of lack of funding to carry out constitutional and other statutory functions. Cases on point include Paias Wingti v. Kala Rawali,[36] where the Electoral Commission pleaded lack of funding to conduct a court ordered recount of votes after a successful election petition. A similar excuse was offered by the then Acting Speaker of the National Parliament in the case of, In the Matter of Re-Election of the Governor-General; Reference by the Morobe Provincial Executive[37] concerning a recall of Parliament to deal with an election of a Governor General.
    
46. It is clear from the above cases that, s. 225 can be invoked in appropriate cases to ensure and to enable a smooth functioning of "all constitutional institutions and that of all constitutional office-holders." In the cases that have gone before the Courts, the provisions of s. 225 did not call for any interpretation. They were cases in which situations have arisen that called for an application of this provision. The case before us now, necessarily requires a consideration and interpretation of the provision in addition to its application in the light of the arguments presented before us.
    
47. The law in relation to the interpretation and application of a constitutional law provision is well settled. As Kandakasi J noted in his recent decision in the matter of Motu Koita Assembly v. National Capital District Commission,[38] Wilson J., in PLAR No. 1 of 1980[39] stated the relevant principles in these terms:
    

"... there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the "mischief" rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give 'paramount consideration to the dispensation of justice'..."

48. What this means is that, the Courts should be taking a more liberal and purposive approach when it comes to interpreting and applying the provisions of the Constitution and other statutory provisions in our country. A large number of subsequent decisions of the Supreme and National Courts have consistently allowed themselves to be guided by these principles. Again as Kandakasi J., noted in his decision in the Motu Koita case, an example of the Court adopting the liberal and purposive approach to statutory interpretation is the Supreme Court decision in SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council.[40] There, the Court having regard to the provisions of schedule 1.5 (interpretation) of the Constitution said:
    

"Going by this expressed dictation in the Constitution ..., it is now an accepted principle of both constitutional and other statutory interpretation, that the provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning. This is so as to give effect to the intent of Parliament behind the provisions in question. There is a long line of case authority on that."

49. There are however two well known exceptions to the above position of the law. Both of these were noted in Kandakasi J's dissenting decision in the case of The State v. Downer Constructions (PNG) Limited.[41] The first of the two exceptions is in cases where the words used in legislation are so plain and clear that no art of interpretation is required.[42] The second exception is in the area of tax legislation, where the strict interpretation rule applies.[43] The reason for this exception is simple. For the imposition of a tax or charge against a subject, clear and unambiguous intention needs to be shown in the statute. A failure to do so would result in an interpretation that is favorable to taxpayers.[44]
    
50. Allowing ourselves to be guided by these principles, we first note, this provision does not concern the imposition or collection of any tax. Hence the strict interpretation rule does not apply. The next question then is, are the words employed by Parliament in s. 225 of the Constitution so clear and or plain that there is no need for any art of interpretation to be adopted and applied? The answer to that question is simply yes, save only for the meaning to be given to the phrase "governmental bodies" around which most of the arguments are centered before us in so far as is relevant. Thus, we turn to a consideration of the phrase "governmental bodies" as used in s. 225 of the Constitution.
    

Governmental Bodies

51. The phrase "governmental bodies" has been the subject of a number of judicial consideration, interpretation and application. Before we seek the assistances of the past decided cases, it is important to note that we are dealing with a constitutional provision and that the Constitution does provide some definition for some of the terms it uses. In the case of the phrase "governmental bodies", schedule 1.2(1) of the Constitution, is relevant. For it defines the phrase "governmental body" in the following terms:
    

"'governmental body' means—

(a) the National Government; or

(b) a provincial government; or

(c) an arm, department, agency or instrumentality of the National Government or a provincial government; or

(d) a body set up by statute or administrative act for governmental or official purposes;"

52. In our respectful view, it is thus clear to us that a governmental body is:
    
    • (1) the National Government; or
      
    • (2) a provincial government; or
      
    • (3) an arm, department, agency or instrumentality of the National Government or a provincial government; or
      

(4) a body set up by:

(a) statute or administrative act; for

(b) governmental or official purposes.

53. The Supreme Court decision in the matter of Reservation Pursuant to Section 15 of the Supreme Court Act,[45] in the context of the question whether a provincial government is "the State" for the purposes of s. 13 of the Claims By and Against the State Act (CBASA) restated in the following terms, what schedule 1.2 (1) of the Constitution already states:
    

"The power of the people is vested in all "governmental bodies", which administer and exercise them on behalf of the people. These governmental bodies, include 'the National Government', 'a Provincial Government', an arm, department, agency or instrumentality of the National Government or a Provincial Government or a body set up by Statute or administrative act for government or official purposes."

(Underlining supplied)

54. After having devoted 9 pages of its judgment to demonstrating how and why a provincial government is part of the state and is therefore a governmental body, the Supreme Court in that case devoted only the second last paragraph to its judgment to say this:
    

"It is to be remembered that this protection does not apply to assets and finances of developmental enterprises of provincial governments that have independent corporate statuses and operate commercially. They are subject to the ordinary laws as corporate citizens. However any profits these developmental enterprises contribute to the provincial budgets become assets belonging to the people and they are also protected from execution processes. In like manner, any tax revenue generated under delegated legislative authority becomes state finances and is protected."

55. The Supreme Court in National Capital District Commission v. Jim Reima, on behalf of himself & 120 Youth Groups of Moresby North East,[46] repeated what it said in the above case and held that the National Capital District Commission is part of the State and is therefore a governmental body.
    
56. Following these two authoritative decisions of the Supreme Court, there is no doubt that, a national government, a provincial and local level government is part of the State because:
    
    • (1) They are established by the Constitution;
      
    • (2) They are part of the our system of government as provided for in our Constitution;
      
    • (3) They are constituted by elected representatives; and
      
    • (4) For governmental bodies lower than the national government, the national government exercises some control of them politically, administratively, and financial matters.
      
57. There has however been some controversy on the question of whether; authorities, agencies, corporations and other government bodies established by the State and or provincial governments are part of the State. One view is that, they are. On the other hand, there is a contrary view that, they are not part of the State. The latter view goes on to say that, since such bodies are not part of the State they are not protected or covered by provisions such as ss. 5 and 13 of the CBASA.
    
58. Cases that stand for the view that authorities, agencies, and corporations established by the State and or provincial governments are part of the State include the following decisions:
    
    • (1) Mt Hagen Urban Local Level Government v. National Housing Corporation[47] Mogish J., holding Housing Corporation as part of the State; and
      
    • (2) Okam Sakarius v. Chris Tep[48] Salika J (as he then was) holding the Cocoa and Copra Extension Agency a part of the State.
      
59. The Cases taking a different view from the above are the following:
    

(1) Albert Areng v Gregory Babia,[49] Sawong J holding that the National Housing Corporation is not the State;

(2) Naomi Vicki John v. National Housing Corp.[50] Davani J holding the National Housing Corporation is not the State;

(3) Wamena Trading v. Civil Aviation Authority,[51] Davani J holding the Civil Aviation Authority not the State;

60. This difference of opinions have come about in our respectful view because of a misunderstanding of what the Supreme Court said in its passing comment in its second last paragraph of its decision in the Reservation Pursuant to Section 15 of the Supreme Court Act, (2001), which we have quoted above. If what the Supreme said in that case is considered in its proper context, it is easy to see, how or why entities set up by the National or a provincial government purely for commercial purposes and not to render a particular kind of critical community service, could not be considered as part of the State. The State of Papua New Guinea would be guilty of promoting discrimination between state owned enterprises and a private enterprise which gives the state owned enterprises an unfair commercial advantage or benefit that is not accorded to private enterprises. A good example of that would be the protection provided under s. 13 of the CBASA and long before that provision comes to play, the requirements for notice under s. 5 of the same Act.
    
61. In the particular context of the issues before the Supreme Court in the Reservation Pursuant to Section 15 of the Supreme Court Act, (2001), the Supreme Court was in our humble view, correct in taking the following factors into account to arrive at its decision that provincial governments are part of the State:
    
    • (1) They are established by the Constitution;
      
    • (2) They are part of the three tier structure of government enshrined in the Constitution;
      
    • (3) Like the other tiers of government they are constituted by elected representatives;
      
    • (4) The National Government exercises some control over provincial governments in political, administrative and financial matters;
      
    • (5) They fall within the definition of "governmental body" contained in the Constitution; and
      
    • (6) Judgment debts are recoverable from monies allocated in the budgetary process of provincial governments.
      
62. Taking these factors into account without any careful consideration as did Lay J., in Naomi Vicky John v. National Housing Corporation[52] and followed by Hartshorn J., in Konze Kara v. Public Curator of PNG[53] to determine whether entities other than a form of government is a State for the purpose of the requirements under s. 5 and the protection provided to the State under s. 13 of the CBASA can easily be misguided and erroneous for one serious but simple reason. The very nature of most governmental bodies or entities other than the national government, provincial governments and local level governments established by the State or a provincial government would not easily meet all of the above factors, especially the first three factors. Yet they would be charged with a duty and or responsibility of providing an important and critical service such as the provision of water, electricity, public housing, telecommunications, public transport, public banking, public health, public educational services and or the control over the production, importation and use of narcotics and other drugs, or dissemination of governmental and or public information as in the case of national broadcasting, or medical services. Given the essential nature of these kinds of services, they could simply not be left to the free market forces in a welfare State as developed in England and spread internationally, including our country. Traditionally, with origins mainly in England, such essential services formed the core function of the State. Later government leadership and thinking changed and they moved to the idea of service specialized organizations which saw the corporatization and privatization of some of these services. All of this was done in the hope of bringing greater efficiency in the management and delivery of these services at affordable prices. It is therefore normal to see such entities charging and receiving nominal fees as opposed to the prevailing commercial rate which are determined by the free market forces.
    
63. In our country, we started off as a nation with most of these key service areas remaining as key government departments. Later without much careful consideration and debate, the government moved to corporatization and privatization. Except for the cases in which there has been full privatization as in the case of the former Papua New Guinea Banking Corporation being sold to the Bank South Pacific, most of the other key service areas remain in government owned and controlled entities. This is necessary and important to maintain so the people of Papua New Guinea are well served rather than being driven by profit and they are charged with all sorts of outrageous fees and charges only seen in our country as is done by Bank South Pacific Limited and the other banks operating in our country. For instances, despite declarations of substantial profits each year, fees and charges even for deposits and customers withdrawing their own funds and a clearing of cheques issued by that bank are being charged. Given these, an important and determinative test in our view to determine whether an entity is part of the State or not is the nature or kind of service and or duties and responsibilities the entity under consideration has or owes to a particular part of the country or the whole country. If the kind of service or duties and responsibilities the entity has, falls into one of the traditional critical functions and or duties and responsibilities of the State, and that entity is not operating as a private enterprise purely for profit, with all of the features of a private enterprise present, such an entity should easily qualify to be part of the State. Accordingly, we endorse Sawong J.'s view in Sengus Investment Ltd v National Broadcasting Corporation,[54] that it would be necessary to consider, amongst others, "the corporate structure and purpose of the organization as set out in its enabling legislation" as well as in the way it carries on its business.
    
64. Given the conflicting National Court decisions on point, it is necessary to briefly comment on some of the decisions. We start with the decision in Noami Vicky John v. National Housing Corporation (supra). There, His Honour, Lay J., as he then was held that the National Housing Corporation (NHC) is a governmental body but is not part of the State because it did not meet all of the factors or elements identified by the Supreme Court decision in Reservation Pursuant to Section 15 of the Supreme Court Act, which we outline in paragraph 54 above. His Honour did have regard to the corporate and commercial nature of the NHC and its set up and operations. However, His Honour did not give any consideration to the fact that the NHC was charged with the duty and responsibility of providing public housing. It is notorious fact that the NHC charges only nominal rentals from its tenants which does not compare at all to the kinds of rents charged in the open market place. The NHC depends heavily on the National Government for most of its funding, which also appoints the board members and service to the NHC is deemed service to the State by s.19 of the National Housing Corporation Act 1990, in the case of the managing director and s. 20 (5) and (6) of the Act. These, in our view, qualified the NHC to be an entity which is part of the State.
    
65. The errors evident in the above case were unfortunately carried over into the decision with respect in Konzi Kara v. Public Curator, (supra) by His Honour Hartshorn J. There, His Honour followed Lay J's., approach in the Naomi Vicky John case and held that, the Public Curator was not part of the State because it was a corporate entity, which has perpetual succession and has power to sue and be sued and that office did not meet all of the elements identified in the Reservation Pursuant to Section 15 of the Supreme Court Act. In so doing, His Honour with respect did not take into account the fact that, the Public Curator was a government institution which comes under the Department of Justice and Attorney General, which carries on a very critical function namely, the administration of intestate deceased estates, which is a traditional welfare government's function or service. The Public Curator is appointed by the National Government and paid out of public funds through government appropriations and is accountable to the people through the government of the day and Parliament. The Public Curator does not charge and collect professional fees at rates like those charged by other professionals in the private sector for his services and the office does not exist for generating profits for the government.
    
66. We make the same observations with respect to the decisions in Wamena Trading Ltd v. Civil Aviation Authority of Papua New Guinea (supra), another decision of Lay J., which held that the Civil Aviation Authority was not included in the definition of "State" as well as the decision of Sevua J (as he then was) in Anave Megaraka Ona v. National Housing Corporation,[55] which held that the NHC is not a part of the State.
    
67. Carefully taking into account what we have said above, we are of the view that the decisions in Mt Hagen Urban Local Level Government v. National Housing Corporation was correct. Similarly, we consider the decision in Okam Sakarius v. Chris Tep (2003) holding the Cocoa and Coconut Extension Agency a part of the State by Salika J (as he then was) was correct and so was the decision in Sarakuma Investment Ltd v. Peter Merkendi,[56] holding the East Sepik Provincial Liquor Licensing Board as part of the State by Cannings J. We are of the similar view concerning the decision in Sengus Investment Ltd v. National Broadcasting Corporation (supra) by Sawong J holding the defendant as part of the State. All of these decisions clearly show that, each of the entities had to deal with a specific National Government agenda, program, duty or service more than them being established purely for the purposes for making profits for the government.
    
68. Notwithstanding the differences in opinions as noted above, all of the above authorities and others agree that, all entities established by the National Government or a provincial government or a local level government, with some form of government control and ownership and funding is a governmental body. This should be the test to determine if an entity or a body is a governmental body. To this, we add the purpose for which the entity has been established. If it is for an important public purpose, the kind that traditionally were the function of welfare states governments is in the case of telecommunications, electricity, public transport, water and sanitation, health and education, this would render the entity a governmental body. This would be the case even if the entity appears to have private corporate status and structure.
    
69. Applying the principles, we discussed above as well as the test we have suggested, we note amongst others the following pertinent factors concerning the PNG Power and note that:
    
    • (1) it is an entity establish pursuant to a statute, namely the Electricity Commission (Privatization) Act 2002, and the Electricity Industry Act ((Chp. 78) consolidated to No 10 of 2002);
      
    • (2) its employees are deemed employees in the public service and to whom the Public Services (Management) Act 1995 applies as to their rights duties and obligations according to s.10 (3) – (6) of the Electricity Commission (Privatization) Act 2002;
      
    • (3) its Board and its chief executive officer are appointed by the government of the day;
      
    • (4) it is obliged to give effect to the policies of the government and not to pursue its own corporate will and desire and is accountable to the people of Papua New Guinea through the relevant government minister as its political head; and
      
    • (5) it is was not established to make profits for the government but rather the need to provide quality, reliable and affordable electricity to the people of Papua New Guinea, which includes natural persons and corporate entities alike, which is a traditional function of a welfare State.
      
70. Taking these factors into account and proceeding on the basis of what we have said above, we are of the firm view that, PNG Power is a governmental body. It is thus caught and covered by the definition of "governmental bodies" in schedule 1.2(1) of the Constitution. Consequently it is one of the entities caught by s. 225 of the Constitution, which has the necessary obligation to support and ensure that there is indeed "the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders." Put in other words, PNG Power is a governmental body within the meaning of s. 225 of the Constitution which has the duty to ensure that it provides sufficient and uninterrupted power supply to the constitutional officers and constitutional office holders.
    
71. The question then is who or what are "constitutional offices" and "constitutional office holders" for the purposes of s. 225 of the Constitution? Under our system of government as provided for by our Constitution, there are three most important organs of the State or indeed our nation. The First is the legislature or Parliament which is responsible for the making of laws for the safety and good order and administration of our country. It is also through Parliament that the executive government is made to account. The next most important organ is the executive government or National Executive Council headed by the Prime Minister and constituted by Ministers of State. The executive government drives public policy which goes into the development, the safety, welfare and interest of the nation and sets and drives the legislative agenda of the legislature. The third most important organ is the National Judicial System or the Judiciary, established under s. 155 (1) of the Constitution. The National Judicial System or the Judiciary comprises of the Supreme and National Courts and such other Courts established by an Act of Parliament pursuant to s. 172 of the Constitution. The Judiciary upholds and protects the rule of law through an interpretation and application of the laws made by parliament and all other laws that are current and apply in our country. It also hears and determines according to law all disputes brought to it by disputing parties, some of which may concern actions and or inactions of the first two organs.
    
72. These three organs are most critical and important in our society, without which society would cease to exist as a democratic nation. Without the Judiciary, there would be no rule of law and respect for human rights. There would be chaos in society, which the society can ill afford. So it behooves everyone in our country to do all they can to protect and ensure that the Judiciary continues to exist and function in society unhindered in any manner or form. The founding fathers therefore made no mistake in calling for and providing for protection and support of constitutional institutions and constitutional office holders under s. 225 and before that indentifying the Supreme and National Courts and the Judges that constitute them as constitutional office holders in s.221 of the Constitution. That provision in relevant parts reads:
    

"'constitutional institution' means any office or institution established or provided for by this Constitution, other than an office of Head of State or of a Minister, or the National Executive Council;

'constitutional office-holder' means—

(a) a Judge; or

...."

(Emphasis supplied)

73. It should logically follow therefore that, all governmental bodies which includes corporations like, Air Niugini, Telikom (PNG) Limited, Eda Ranu and the Water Board, and of course PNG Power are tasked with the duty and responsibility to provide a critical service. We repeat the objective of their corporatization was to make them more efficient and effective and not necessarily be profit driven. This was so that an efficient, effective and reliable service can be provided to our people in their respective critical areas at less cost. When it comes specifically to supporting the constitutional institutions and constitutional office holders, what this means is that, these corporations must have to ensure that these important constitutional entities are served in a way that is not interrupted. Contrary to the submissions of learned counsel for PNG Power, when it comes to the Judiciary and the Judges, we repeat they provide an important and sometimes very critical service, for instance, a person after having committed a crime might seek to leave the country, or a child is about to be taken out of the country or some action or inaction threatening human life is about to occur. Only the Courts can order a stop, or issue such orders as it considers necessary for the safety and protection of life and property. An interruption to the supply of electricity, water and telephone services can and has in a number of cases, prevented the Courts and Judges from sitting in Court, hearing and arriving at timely decisions. This has resulted in much harm and damage being done, including a build up in the Courts' lists or backlog as is now known.
    
74. In this case, PNG Power and its CEO claim that, the demand for electricity is great and always increasing while the amount of power it is generating is either remaining constant and inadequate and or declining. The CEO spoke of other factors beyond their control such as landslides and serious bad weather impacting against the ability to generate and supply adequate levels of electricity. Whilst we are happy to accept that such eventualities are beyond anyone's control, it is within the control, power and ability of PNG Power and indeed the other critical services corporations to provide for such eventualities.
    
75. Some countries, even in some cases where the natural and other resources are not as plentiful as we have in PNG, have challenges larger than ours in terms of sufficient and uninterrupted, provision of basic services in the area of telecommunications, water, electricity and other essential services. Some of these countries have very substantial demands, much higher than ours in PNG. Some of these countries are in Asia, with populations much higher than our mere 7.7 million people. Yet these countries have successfully overcome their challenges by investing more with a larger customer or consumer base at costs almost negligible compared to the kinds of charges imposed by PNG Power, Telekom, Eda Ranu, Air Niugini and other public corporations. These other countries have been successful because of those who are charged with the duties and responsibilities to provide the critical services having taken their duties and responsibilities seriously and have carefully looked at ways and means of constantly improving their business and more so the provision of their services at affordable costs. In so doing, they have come up with greater visions and foresight with both short term and long term objectives or goals and plans that are practical and achievable over a period of time, with appropriate levels of a system of monitoring and evaluating their performances and improving it all the time. That is what people with a commitment to quality service and customer satisfaction do and where they are part of the government system, such as the public enterprises they deliver on a welfare state's duty to provide the best kind of service for their citizenship and visitors or guest alike at less or easily affordable costs.
    
76. For the case before us, when the CEO and his Madang Provincial Manager appeared before His Honour Sevua J in the National Court, it was not enough to blame the problem only on higher demand and lesser generation of electricity and acts of God. They had to go further and specifically into addressing amongst others, the questions of:
    
    • (1) when did the problems of constant interruptions in the supply of electricity commence?;
      
    • (2) what steps has PNG Power taken to overcome the problem?;
      
    • (3) how have the steps it has taken to overcome or meet the challenges been and are working?;
      
    • (4) for how long is the problem expected to last and when is it anticipated to end or effectively brought under control?;
      
    • (5) what is its greatest difficulty in its endeavour to overcome the problem and what steps are being taken to overcome them?; and
      
    • (6) what is or are the short and long term objectives of PNG Power and what plans are in place and are being implemented to overcome the problems?
      
77. The executive head of PNG Power, its CEO Mr. Mara appeared before His Honour Sevua J in the Madang National Court on 12th December 2006. He was or should have been in a position to address all of the above and other relevant questions. He simply failed to do so. This could show in the absence of any evidence to the contrary, total inadequacy and incompetency on his part, which plagues PNG Power as an organization and its management in the provision of a most critical service to the people of Papua New Guinea. Coincidently as of the date of this judgment the country and no doubt the Courts and the Judges continue to face power blackout or outages or interruptions almost on a daily basis sometimes for days. This shows that, PNG Power's management past and present with its board are incompetent and since the CEO's appearance in Court, they have still not come to appreciate the problem and more so the need to do something seriously to overcome the problem. This cannot be allowed to go on forever. Something drastic has to happen to alleviate the problem for the nation with her whole population and all of its arms and instrumentalities and institutions cannot be allowed to put up with this problem, any longer. We would thus falling short of making an order solely because we have not invited the parties input on this point, we can only at this stage strongly recommend PNG Power to:
    
    • (1) immediately undertake a review of its operations and in particular what plans and strategies it has put in place to overcome the problem of constant power, interruptions, blackouts or failures as are commonly called; and
      
    • (2) produce a detailed but workable short and long term strategic plan with a deliverable timeframe to overcome the problem; and
      
    • (3) as some aspects of the strategic plan will have financial implications which are beyond its capabilities, PNG Power should come up with a detailed financing arrangement for consideration by the government or other funding and or financing agencies to consider and fund; and
      
    • (4) it should immediately implement whatever steps it can now take within its current strength and the rest once the relevant and necessary funding is secured.
      
78. If PNG Power does not take the corrective measure as outlined above and the issues arise in Court again, at that stage the Court will make the appropriate orders to compel PNG Power to deliver on the duties and responsibilities vested in it. The Court will then be at liberty to also deal with the CEO and the responsible servants and agents of PNG Power for contempt of Court.
    
79. Returning to the specific ground of appeal, we are dealing with and the arguments around that, we find in summary as follows:
    
    • (1) Whilst PNG Power is a company incorporated under the Companies Act and can therefore be considered a private company, it is not in fact a private company like the other companies that are incorporated by private individuals and legal entities. It is instead a company incorporated by the State for and on behalf of the people of PNG for a specific purpose. That specific purpose, amongst others, is for the provision of electricity services that are dependable and sufficient, which is traditionally and todate remains a State or government responsibility. Consequently, contrary to PNG Power's submissions, we find that PNG Power is a State entity which is caught and covered by the provisions of s.225 of the Constitution.
      
    • (2) Where PNG Power fails in its duty and responsibility to provide adequate and uninterrupted power supply to the Nation and in particular to the National and the Supreme Courts whose proceedings are interrupted, without good course, the Court can invoke the provisions of s. 225 summarily for contempt in the face of the Court. We thus reject the argument that, this provision cannot be applied summarily.
      
    • (3) Contrary to PNG Power's submissions, and based on what we have said in paragraphs 51 to 72, we state unequivocally that, the Judiciary and therefore the Courts with the Judges provide an important, necessary and critical service to our people. Hence governmental bodies like, PNG Power, Air Niugini, Eda Ranu or the Water Board (as the case might be), Telekom (PNG) Ltd Civil Aviation Authority and similar government corporations or authorities owe a duty and responsibility to the Courts and Judges. That duty and responsibility is to provide such support and service as the Courts and Judges may require for an efficient, effective and timely discharge of the Courts' and Judges' duties and responsibilities.
      
80. On the basis of the views we have expressed above, we find that PNG Power's arguments centered on s.225 of the Constitution are without merit. Accordingly, we would order a dismissal of that part of the appeal.
    

Final Decision

81. In the end, we find that, PNG Power has come to this Court prematurely and in so doing, it has abused the process of the Court. We also find that, the learned trial judge, His Honour Sevua J was correct in summarily invoking the provisions of s. 225 as there was contempt in the face of the Court, which resulted in disruptions to the National Court proceedings and ultimately the National Court Circuit in December 2006. Accordingly, we order a dismissal of this appeal has having no merit. Costs will go to the respondent.
    

___________________________________________________
Posman Kua Aisi: Lawyers for the Appellant
Hagauno Lawyers: Lawyers for the Respondents

---

^[1]See for authorities on point: Philip Takori v Simon Yagari (2008) SC905; Shelley v. PNG Aviation Services Pty. Limited [1979] PNGLR 119; Boyepe Pere v. Emmanual Ningi (2003) SC711; The Independent State of Papua New Guinea and Det Sgt Maj Francis Namues and Jimmy Tamate Wala and Hon Andrew Kumbakor MP v. John Talu Tekwie (2006) SC843.
^[2] (2011) SC1118.
^[3] (2008) SC906.
^[4] S. 37 (1)
^[5] S. 37 (2).
^[6] S. 37 (3).
^[7] S. 37 (4) (a) and (c).
^[8] S. 37 (4)(e).
^[9] S. 37 (4) (f).
^[10] S. 37 (5).
^[11] S. 37 (21) (a) and (22).
^[12] [1974] AC 273.
^[13] [1936] AC 322.
^[14] (1999) SC 618.
^[15] (1998) SC545.
^[16] The Supreme Court cited these authorities from which this statement of the law was derived: Metta v. State [1992] PNGLR 176 at 184; Poka -v- Papua New Guinea [1988] PNGLR 218 at 219; SCR No. 3 of 1984; Ex-parte Callick and Koroma [1985] PNGLR 67 at 75; Re Passingan Taru [1982] PNGLR 292 at 295; Re Rooney (No. 2) [1979] PNGLR 448 at 473 and Halsbury's Laws of England (4th ed. Vol. 9) para. 7.
^[17] Re Rooney (No. 2), supra, at 467; SCR No. 3 of 1984, supra, at 73, 77.
^[18] Attorney-General v. Times Newspapers Ltd (supra) at 302 adopted in Metta v. The State, supra, at 184.
^[19] [1974] 3 ALL ER 283 at 287.
^[20] [1977] QB 32.
^[21] At pp.287-288.
^[22] (1987) N612.
^[23] [1988] PNGLR 218.
^[24] [1985] PNGLR 179.
^[25] (1996) N1536.
^[26] (1996) N1494.
^[27] (1994) N1192.
^[28] (2007) N3327.
^[29] See Ross Bishop & Ors v. Bishop Brothers Engineering Pty Ltd & Ors [1988-89] PNGLR 533 for example and the factors that must exist for there to be an instance of contempt of Court.
^[30] Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448; Supreme Court Reference No 3 of 1984; Ex Parte Rowan Sidney Callick and Joe Koroma [1985] PNGLR 67).
^[31] Robinson v. The State [1986] PNGLR 307.
^[32] See for cases on point Leto Pup v Yangao Mara (Unreported, National Court, 3/4/1996).
^[33] The Papua New Guinea University of Technology v. National Academic Staff Association of the Papua New Guinea University of Technology (2007) N....

^[34] [1988-89] PNGLR 435
^[35] [1990] PNGLR 82.
^[36] (2010) N3959.
^[37] (2010) SC1089.
^[38] (2011) N4429.
^[39] [1980] PNGLR 326.
^[40] (2002) SC693.
^[41] (2009) SC979.
^[42] For additional authorities on point see for example Inakambi Singorom v. Klaut [1985] PNGLR 238.
^[43] Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v. Chief Collector of Taxes (2007) SC853.
^[44] Norah Mairi v. Alkan Tololo, Secretary for Education [1976] PNGLR 125. For similar statement of the law in terms of these exceptions see Jennifer Jean Scott v Micheal George Scott (2009) N3881 and Internal Revenue Commission v. Dr Pirouz Hamidian-Rad (2002) SC692.Misima Mines Ltd v. Collector of Customs (2003) N2497
^[45] (2001) SC 672.
^[46] (2009) SC993.
^[47] (WS 1194 of 2002 unreported decision of 20th April 2004.
^[48] (2003) N2355
^[49] (2005) N2895.
^[50] (2005) N2770 .
^[51] (2006) N3058.
^[52] (2005) N2770.
^[53] (2010) N4048.
^[54] (2010) N4129.
^[55] (2009) N3623.
^[56] (2004) N2629.