Chung v Daniels [2015] PGSC 76; SC1503 (17 December 2015)

SC1503

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 12 OF 2009

DAVID CHUNG as the President of Papua New Guinea Football Association Inc.
First Appellant
DIMIRIT MILENG as CEO of Papua New Guinea Football Association Inc.
Second Appellant
PAPUA NEW GUINEA FOOTBALL ASSOCIATION INC.
Third Appellant

V

SETH DANIELS as the Senior Vice-President of Papua New Guinea Football Association Inc.
Respondent

Waigani: David J, Yagi J and Kariko J
2015: 15^th & 17^th December

SUPREME COURT - APPEAL – verdicts of guilty on contempt charges – civil contempt – elements of – whether orders allegedly breached clear and unambiguous – whether evidence proved charges beyond a reasonable doubt
PRACTICE & PROCEDURE – contempt application – personal service – mandatory requirement – jurisdiction to hear application without personal service – competency – issue of competency may be raised at any time

Cases cited:
Mision Asiki v Manasupe Zurenuoc (2004) SC747
Ross Bishop and Ors v Bishop Bros Engineering Pty Ltd and Ors [1988-89] PNGLR 533
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Legislation:
The National Court Rules

Counsel:
Mr D Kakaraya, for the appellants
Mr S Toggo, for the respondent

JUDGEMENT

17^th December, 2015

1. BY THE COURT: This is an appeal against the decision of the National Court at Lae given on 24^th February 2009 in relation to contempt charges filed by the respondent Seth Daniels against the first appellant David Chung (then the first contemnor) and the second appellant Dimirit Mileng (then the second contemnor) arising from proceedings OS No. 531 of 2007. In that decision the trial Judge found Mr Chung and Mr Mileng guilty of three of the five charges of contempt filed against them. The charges alleged that they wilfully breached Consent Orders made and entered on 4^th July 2008 (“the Consent Orders”). Mr Chung, Mr Mileng and Mr Daniels were at the time members of the Executive Committee of the Papua New Guinea Football Association Inc. (“the Association”). We refer to Mr Chung and Mr Mileng as “the appellants” in this judgement.

2. The appeal is based on twelve grounds of appeal that can be condensed into three grounds and summarized as follows:

(1) That his Honour the trial Judge erred in not finding that the relevant documents in relation to the contempt application (the notice of motion, the statement of charge and the supporting affidavits) were not served personally on the appellants;
(2) That his Honour the trial Judge erred in finding that the Consent Orders were clear and unambiguous;
(3) That his Honour the trial Judge erred in finding that three of the charges were properly proved.

Service

3. The parties agree that Order 14 Rule 45 of the National Court Rules imposes a mandatory requirement that in a contempt application, the relevant documents must be served personally on the contemnor.

4. The appellants argued in the National Court that they were not properly served, that is they were not served personally. In exchange with counsel, the trial Judge expressed the view that it was too late to raise the argument and concluded that in any case the appellants had pleaded to the charges and therefore they were deemed to have been served.

5. The question of proper service is a question that goes to jurisdiction and therefore an issue regarding competency. The issue of competency which relates to the jurisdiction of the Court can be raised at any stage of the proceedings by any party or by the court on its own initiative; Sir Arnold Amet v Peter Charles Yama (2010) SC1064.

6. While the question of competency of the contempt application was properly raised and argued by the appellants, his Honour the trial Judge did not make any definitive determination on the question nor did he address it in his judgement. Instead he discussed the issue of service of the Consent Orders on the appellants (at paragraphs 9-12 of the judgement). That is a totally different issue that was not argued by the appellants. We consider those circumstances to be akin to failure to give reasons for judgement, and that amounts to an error of law; Mision Asiki v Manasupe Zurenuoc (2004) SC747.

7. The evidence in relation to service on the first appellant is found in the affidavit of Allan Yuith filed 2^nd December 2008 in which the deponent states that he tried to serve the documents on Mr Chung personally but he refused to accept service. He nevertheless served him without Mr Chung formally acknowledging service. The evidence in relation to service on the second appellant is contained in the affidavit of Enos Steven Ulaias filed 14^th August 2008 wherein the deponent states that he went to Mr Mileng’s house and in his absence handed the documents to his son. He later met Mr Mileng and informed him of the documents. A further affidavit of service was filed on 14^th August 2008 to confirm that the appellants were properly served. In that affidavit sworn by Sosthen Toggo, he states that he effected personal service by attending the Headquarters of the Football Association and serving the documents on one Max Foster, an official of the Association.

8. How personal service is effected is set out in Order 6 Rule 3(1) of the National Court Rules which states:

“3. Personal service: How effected. (9/3)

(1) Personal service of a document may be effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document.”

9. The evidence clearly shows none of the documents were left with the appellants. In relation to service on Mr Chung there is no evidence that when he refused to accept service the documents were put down in his presence and the nature of the documents then explained to him. Based on the evidence, we find and the trial Judge ought to have found that there was no personal service of the contempt process on the appellants as required by Order 14 Rule 45. His Honour did not have jurisdiction to hear the contempt application and he therefore erred in law in hearing the application. On this appeal point alone we would uphold the appeal.

10. In the circumstances we do not think it is necessary to address the other grounds of appeal but we will do so, briefly, for the sake of completeness.

Civil contempt – legal principles

11. As noted earlier, the contempt application was based on allegations that the Consent Orders were not complied with. Disobedience of a court order is what is termed as civil contempt of court. In Ross Bishop and Ors v Bishop Bros Engineering Pty Ltd and Ors [1988-89] PNGLR 533, the Supreme Court held that to succeed on a charge for such contempt, these elements must be proved beyond reasonable doubt:

(1) the order was clear and unambiguous;
(2) the order was properly served on the contemnor; and
(3) the contemnor deliberately failed to comply with it.

The charge of contempt cannot be sustained if any of the elements is not proved to the required standard - proof beyond a reasonable doubt.

Consent Orders, charges & verdict

12. The Consent Orders stated:

(1) The Orders of 3^rd July are varied.
(2) The meeting of PNG Football (Soccer) Association Inc. set for 5^th July 2008 shall proceed.
(3) The Executive Committee of PNG Football (Soccer) Association Inc. shall forthwith supply to the Plaintiff and all the 22 participants Agendas of the meeting and the participants shall after perusal of the Agendas decide whether the meeting should continue or be deferred and that shall be the first Agenda of the meeting of 5^th July 2008.
(4) The Executive Committee of PNG Football (Soccer) Association Inc. shall immediately upon arrival of the Plaintiff and other participants reimburse in full, the total cost of travel and pay for all necessary costs for accommodation, meal and other allowances as well as the costs for the return trip.
(5) The President or the Executive Committee of PNG Football (Soccer) Association Inc. be refrained from suspending any members of PNG Football (Soccer) Association Inc. and those that have been already suspended until the substantive matter in the proceeding is determined.
(6) Cost of this proceeding be in the cause.
(7) An order that the Interim Orders of 19^th September 2007 remain in force.

13. The contempt charges filed against the appellants read:

(a) the first and second contemnors failed to instruct the executive committee of whom the first contemnor is the chairman to supply the plaintiff and all the 22 participants of the meeting with the meeting Agendas forthwith, contrary to paragraph 3 of the court order of 4^th July 2008.
(b) the first and second contemnors failed to make it the first agenda and to get the members to decide whether the meeting should proceed or not contrary to paragraph 3 of the court order of 4^th July 2008.
(c) the first and second contemnors failed themselves and failed to instruct the Executive Committee of PNGFA to reimburse in full total costs of travel of the plaintiff and all 22 participants immediately upon their arrival and pay all necessary cost for accommodation, meals and other allowances as well as the cost for the trip.
(d) the first and second contemnors defied paragraph 5 of the court order of 4^th July 2008 and suspended four (4) members of PNGFA being president of Kaiapit (Joe Buma), Manus (Memel Pohei), and Higaturu (Carson Victor) Associations and refused to allow the presidents of Simbu (Steven Peris) and Wabag (Kennedy Yambundimi) Soccer Association to attend the meeting of PNGFA on 5^th July 2008 at Highlander Hotel, Mt. Hagen.
(e) the first and second contemnors allowed the PNGFA meeting of 5^th July 2008 to be conducted pursuant to the Constitution adopted in the PNGFA meeting of 18^th January 2007 when paragraph 3 of the court order of 18^th September 2007 restrained the first contemnor and PNGFA from giving effect to the resolution of the meeting of 18^th January 2007 as the said constitution was adopted during the said meeting as being one of the resolution.

14. The trial Judge found the contemnors guilty of contempt in that they each and severally:

(a) failed to make it the first agenda and to get the members to decide whether the meeting should proceed or not contrary to paragraph 3 of the court order of 4^th July 2008.
(b) failed themselves and failed to instruct the Executive Committee of PNGFA to reimburse in full total cost of travel of Mr. Daniels immediately upon his arrival and pay all necessary cost for accommodation, meals and other allowances as well as the cost for the trip.
(c) defied paragraph 5 of the court order of 4^th July 2008 and prevented members of PNGFA being presidents of Manus, Alotau, Higaturu and Kaiapit from participating in the meeting of PNGFA on 5^th July 2008 at Highlander Hotel, Mt. Hagen.

Whether orders were clear and unambiguous

15. It is our view that the Consent Orders were not clear and unambiguous contrary to the determination by the trial Judge. The orders firstly directed that the meeting of the Football Association set for 5^th July 2008 proceed. The other orders referred to 22 participants for the meeting. It was not clear who the term “participants” referred to, and if indeed it referred to the members of the Football Association (as submitted by Mr Toggo and assumed by the trial Judge), then the figure should correctly have been 18 instead of 22 as 4 members were under suspension at the time.

Whether charges proved?

16. We stress that contempt charges are serious matters and the onus is on the party alleging contempt to prove the charges beyond a reasonable doubt. We are of the opinion that the trial Judge’s conclusion that the appellants deliberately failed to comply with the Consent Orders and in particular orders numbered 3, 4 and 5, was not supported by the evidence beyond a reasonable doubt.

17. In relation to the alleged breach of Order 3, the evidence comprised the affidavit evidence of Mr Daniels that contrasted with the affidavit evidence of Mr Mileng (corroborated by the unsigned Minutes of the meeting of 5^th July 2008). The Minutes confirmed Mr Mileng’s evidence that the question of whether the meeting should proceed or not was the first agenda item put to the meeting resulting in a vote of 13-5 in favour of the meeting proceeding. The trial Judge rejected the evidence of the appellants on the basis that the Minutes were unsigned and yet to be certified as correct. His Honour added that the minute-taker should have provided evidence confirming the accuracy of the unsigned Minutes. We consider that instruction suggested a shifting of the burden of proof to the appellants (as the contemnors) and that amounts to an error of law. The applicant always carries burden of proof. In our view, the evidence did not prove beyond a reasonable doubt that Order 3 was wilfully breached or breached at all by the appellants.

18. In relation to the alleged breach of Order 4, there was simply no evidence that Mr Daniels was not reimbursed his expenses as alleged. His counsel conceded this.

19. In relation to the alleged breach of Order 5, the evidence was that the Presidents of Manus, Alotau, Higaturu and Kaiapit were suspended well before 4^th July 2008, the date of the Consent Orders. Clearly they were not suspended at the meeting of 5^th July 2008 as claimed in the charge. Even if it is true that they were not allowed to participate in the meeting as deposed to by Mr Daniels in his affidavit, that is not the same as being suspended which was the act restrained by Order 5 and alleged in the relevant charge. We find that on the evidence the trial Judge could not have found that charge properly proven.

Costs

20. Costs should follow the event but we are not convinced that costs should be paid on an indemnity basis as submitted by Mr Kakaraya for the appellants.

Order

21. The Court orders that:

(1) The appeal is upheld.
(2) The verdict of the National Court of 24^th February 2009 is quashed and set aside.
(3) The respondent shall pay the appellants’ costs of the appeal on a party-party basis, to be taxed if not agreed.

__________________________________________________
Kakaraya Lawyers: Lawyer for the appellants
Daniels & Associate Lawyers: Lawyer for respondent