Tutuman Development Ltd v Growmax (PNG) Ltd [2013] PGSC 75; SC1227 (30 April 2013)

SC1227

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 71 OF 2011

BETWEEN:

TUTUMAN DEVELOPMENT LTD
Appellant

AND:

GROWMAX (PNG) LTD
Respondent

Waigani: Manuhu, Kawi & Murray JJ. 2013: 30th April

PRACTICE AND PROCEDURE – Contempt – Non-compliance with interim order of single Supreme Court Judge pending Appeal – Issues of fact – Whether three member Supreme Court panel could hear and determine issues of fact?

Cases Cited

Nil

Counsel:

Mr. F. Griffin, for the Appellant Mr. M. Titus, for the Respondent

30th April, 2013

1. BY THE COURT: Before this Court this morning was an application by way of a notice of motion pursuant to Order 14 Rule 42 of the National Court Rules and the Supreme Court Order of 25 July 2012 for Mr. Kiong Mee Hii and Mr Huo Mee Hii, as registered directors of the Respondent company to be punished for contempt of Supreme Court Orders made in this proceeding on 1 July 2012.

2. Among others, the Respondent was ordered on 1 July 2012 to return "all the vehicles, units, equipment, machinery and trucks (including a Toyota Ute Hilux Registration NAC 202) in safe working condition, that they obtained after and under the Kokopo National Court Order 16 June 2011 made in OS No. 330 of 2011."

3. The Court enquired at the outset as to whether there were any issues of fact and, if so, whether issues of fact could be properly determined by a three member bench of the Supreme Court. Mr. Griffin advised the Court that he will rely on affidavit evidence. Mr. Titus advised the Court that one witness would give oral evidence on the question of service of the charge on the contemnors and on the description of the vehicles, units, equipment, machinery and trucks which are the subject of the order in question. Meritorious or otherwise, the Court is satisfied that there are issues of fact to be determined in the contempt proceeding.

4. The Court is also of the opinion that as it consists of a panel of three Judges, it is not appropriate for it to hear and determine issues of fact which is traditionally the function of a single judge of the National (or Supreme) Court. Both counsels were not able to assist with any case precedent. The potential for a split Supreme Court decision on issues of fact is undesirable and ought to be avoided. The Court is also of the view that the rights of the parties to appeal against or seek review of a decision on issues of fact must be preserved. The parties could lose that right if a three member panel of the Supreme Court proceeded to hear and determine issues of fact. The Court is satisfied therefore that issues of fact in the contempt proceeding should be brought before a single judge to determine.

5. The next issue is whether the single Judge should sit as a Judge of the Supreme or the National Court. The orders in question are orders of a single Supreme Court Judge. They were made as part and parcel of a stay application. The order in question was an interim relief pending determination of the appeal against the Kokopo National Court Order of 16 June 2011.
6. In the circumstances, it is appropriate for a single Judge of the Supreme Court to not only deal with the issues of fact but also deal with the entire contempt proceeding. Preferably, the same Supreme Court Judge that made the orders in question should hear the contempt proceeding but it is not improper for the matter to go before another Judge of the Supreme Court.

7. The contempt proceeding, for these reasons, is remitted to the Supreme Court Listings Judge for it to be expeditiously allocated to a single Judge of the Supreme Court to hear and deal with the contempt proceeding.

Orders accordingly.

Young & Williams: Lawyer for the Appellant
Titus Lawyers: Lawyer for the Respondent