O'Neill v Eliakim [2019] PGSC 50; SC1827 (5 June 2019)

SC1827

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 25 & 35 of 2017
(Consolidated)

BETWEEN:
HON. PETER O’NEILL,
Prime Minister of Papua New Guinea
First Appellant

AND:
GARY BAKI
in his capacity as the Police Commissioner
of Papua New Guinea
Second Appellant

AND:
NERRIE ELIAKIM,
Chief Magistrate
First Respondent

AND:
GEOFFERY VAKI
Second Respondent

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Respondent

Waigani: David J, Hartshorn J and Kariko J
2018: 2^nd May,
2019: 5^th June

Application to dismiss applications for contempt orders

Cases Cited:

Michael Wilson v. Clement Kuburam (2016) SC1489
Jacob Popuna v. Ken Owa (2017) SC1564

Counsel:

Mr. R. Webb SC, Ms. T. Twivey, Mr. D. Kipa, for the First Appellant
Mr. C. Wara, for the Second Appellant
Mr. E. Asigau, for the Third Respondent
Mr. K. Iduhu, Ms. B. Sinen, Ms. J. Terra, for the Contemnors

5^th June, 2019

1. BY THE COURT: This is a decision on an application to dismiss contempt applications filed in these appeals against three alleged contemnors, Hon. Kerenga Kua, Hon. Sir Mekere Morauta and Hon. Patrick Pruaitch (contemnors), for being an abuse of process. The application is made by the contemnors and is opposed by the first appellant, Hon. Peter O’Neill; the second respondent, the Police Commissioner; and the fourth respondent, the State.

2. In the alternative, an application is made for security for costs to be paid by the Attorney General. A further order is sought for the Attorney General to bear the legal costs of the contemnors.

Background

3. The appeals were heard and have been determined. The appeals arose out of an application to set aside and declare null and void the decision of the first respondent, the Chief Magistrate of Papua New Guinea, to issue a warrant for the arrest of the first appellant. On 15^th December 2017 this Court allowed the appeals and amongst others, declared the subject warrant of arrest, void and of no effect.

4. On 10^th August 2017, this Court stayed the orders of the primary judge which had dismissed the National Court proceeding which had sought to review the decision of the Chief Magistrate.

5. On or about 11^th or 12^th August 2017, a conference was held by the contemnors. On 16^th August 2017, the first appellant filed three separate applications, one in respect of each of the contemnors, seeking that they be dealt with for contempt of court (contempt applications).

6. The allegations made in each of the contempt applications and their associated statements of charge are in a common form. In each, the allegedly contemptuous conduct comprises the words spoken by the content or to the assembled media in the press conference. In each it is alleged that the words spoken caused media reports intended by the speaker.

Jurisdiction

7. The first appellant has concerns in regard to the Supreme Court Rule and sections of the Constitution relied upon by the contemnors for the jurisdiction to make this application but agrees that this Court has the inherent jurisdiction to control its processes. This includes dismissing applications and proceedings before it which the Court determines are an abuse of its processes. We proceed on this basis.

Contentions

8. The contemnors claim that the contempt applications are an abuse of process as:

a) the publishers’ of the articles alleged to be contemptuous have not been joined as contemnors;

b) the affidavit material relied upon by the first appellant contains hearsay material;

c) the contempt applications do not disclose causes of action against the contemnors’ as the statements in dispute were made in relation to and/or in connection with the Stay Order ordered on 10^th August 2017.

9. The first appellant submits that the three bases upon which the contemnors seek a dismissal, even if proved, cannot constitute an abuse of process.

Abuse of process

10. There are numerous authorities on what constitutes an abuse of process. In Jacob Popuna v. Ken Owa (2017) SC1564, the Supreme Court at [18] cited with approval the following passage from the decision of Gavara Nanu J. in Michael Wilson v. Clement Kuburam (2016) SC1489 at [25]:

“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.”

11. We respectfully agree with and adopt His Honour’s comments.

12. In regard to the bases relied upon by the contemnors for the dismissal of the contempt applications, they are all, with respect, concerned with and question the merits of the contempt applications. They do not afford any basis upon which the contempt applications may be dismissed as an abuse of process. The application to dismiss should therefore be refused.

Security for costs

13. In paragraph 2 of their amended application, the contemnors seek that the Attorney General pay into Court security of costs at K100,000 each for each of the alleged contemnors. No provision is identified in paragraph 2 which provides jurisdiction. In submissions, the contemnors state that they rely upon Order 2 Rule 1(h) Supreme Court Rules. That rule however, is not contained in the paragraph in which relief is sought. There are references to the Supreme Court Rules and the Constitution in paragraph 1 of the amended application but these references are relied upon for the dismissal order sought in paragraph 1 of the amended application and not for the relief sought in paragraph 2. The application for orders in paragraph 2 offends against Order 13 Rule 15 Supreme Court Rules which relevantly provides that all applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought. Consequently, this relief sought should be refused.

Attorney General to bear legal costs

14. In paragraph 3 of their amended application the contemnors seek that the Attorney General bear the legal costs of the alleged contemnors pursuant to s. 7 Attorney General Act 1989. Section 7 Attorney General Act 1989 does not provide this Court with the jurisdiction to make any orders, whether those sought by the contemnors, or at all. Consequently the relief sought in paragraph 3 of the amended application should be refused.

15. Given that all of the relief sought in the amended application has been refused the amended application should be dismissed.

Orders

16. The Court orders that:

a) The amended application of the Applicants/Contemnors filed 25^th April 2018 is dismissed;

b) The contemnors shall pay the costs of the First, Second and Third Respondents of and incidental to the said amended application.
__________________________________________________________________
Twivey Lawyers: Lawyers for the First Appellant
Royal Papua New Guinea Constabulary: Lawyers for the Second Appellant
Pacific Legal Group: Lawyers for the Third Respondent
Fairfax Legal: Lawyers for the Contemnors