Ninganu v Nikint Investment Ltd [2024] PGSC 76; SC2607 (2 August 2024)

SC2607

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 56 OF 2016

BETWEEN:
THOMAS PILLAR NINGANU
Appellant

AND:
NIKINT INVESTMENT LIMITED
Respondent

Waigani: Liosi J, Berrigan J & Carey J
2024: 30^th May and 2^nd August

CIVIL CONTEMPT - Contempt of Court - Court Orders - Disobedience of Court Order – Not guilty.

An application for contempt was made against the Appellant/Contemnor for failure to comply with court orders, in response to which applications were made to have the proceedings and the application book in support struck out.

Held

(1) The applications by the Appellant/Contemnor are dismissed.
(2) The Appellant/Contemnor is not guilty of contempt for failing to comply with the orders of 18 April 2018.
(3) The parties shall bear their own costs of the contempt proceedings.

Cases Cited:

Papua New Guinean Cases
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
Waim No 85 Ltd v Independent State of Papua New Guinea (2015) SC1405
Vaki v Damaru (2016) SC1557

Overseas Cases
Hearn v Tennant (1808) 14 Ves 136
Business Mortgage Finance 4 Plc and others v Hussain [2022] EWCA Civ 1264
Amalgamated Television Services Pty Ltd v Marsden (2001) A Crim R 166

Counsel
R Pokea, for the Appellant
D Doiwa, for the Respondent

DECISION

2^nd August 2024

1. BY THE COURT: There are three applications before the Court. The primary application is that for contempt brought by the Respondent against the Appellant/Contemnor. The second is an application by the Contemnor to have the contempt proceedings struck out for abuse of process. The third is by him to have the application book filed in support of the Respondent’s application struck out.
   

BACKGROUND

2. An order for costs was made against the Contemnor when he withdrew his appeal in the substantive proceedings. Certified taxed costs were subsequently entered as a judgement debt by the Court on 18 April 2018. Contempt proceedings are brought against him for non-payment of the judgement debt pursuant to Order 2 Rule 1(g) of the Supreme Court Rules in collaboration with Order 14 Rule 42 of the National Court Rules.
   
3. The Contemnor says that the proceedings are an abuse of process because a similar motion was previously dismissed for want of prosecution. In addition, the application book should be struck out because at the time it was filed the Respondent company had been deregistered. Furthermore, he says that he was not personally aware of the costs proceedings or served the order for costs the subject of the contempt charge.
   

CONSIDERATION

4. It is convenient to deal with the Contemnor’s applications first.
   
5. The fact that previous proceedings for contempt were struck out for want of prosecution is no bar to these proceedings. A motion that is dismissed for want of prosecution is not determined on its merits and the doctrine of res judicata does not apply: Waim No 85 Ltd v Independent State of Papua New Guinea (2015) SC1405.
   
6. The Contemnor’s application to have the application book struck out because the Respondent was deregistered at the time of filing is also without merit. Apart from anything else, a company that is restored to the register, as the Respondent was, is deemed to have continued in existence as if it had not been removed: s 380, Companies Act.
   
7. In order for a charge of contempt of Court to succeed there are four elements which must be proved beyond a reasonable doubt. See Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988 – 89] PNGLR 533. They are:
   
   1. “the court order must be clear and unambiguous; Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 and P A Thomas & Co v Mould [1968] 1 All ER 963, followed.
      
   2. the order must have been properly served upon the alleged contemnor so that he has knowledge of the terms of the order; Ronson Products Ltd v Ronson Furniture Ltd [1966] 2 All ER 381 and Biba Ltd v Stratford Investments Ltd [1972] 3 All ER 1041, followed.
      

(c) failure to obey the terms of the order must be wilful; and

(d) the standard of proof is proof beyond reasonable doubt.”

8. The Contemnor concedes that the orders of 18 April 2018 are clear and unambiguous. He denies, however, that personal service was effected upon him.
   
9. The power of the Court to punish those who deliberately disobey its orders is essential to the administration of justice and the maintenance of confidence in it.
   
10. As above, to sustain a charge of contempt the order the subject of the charge must have been properly served upon the alleged contemnor: Ross Bishop and Ors v Bishop Brothers Engineering & Ors, supra. This normally requires personal service. See also Vaki v Damaru (2016) SC1557 at [8] and [60] to [62].
    
11. But the requirement for personal service was never an absolute one if it could be shown that the contemnor had actual knowledge of the terms of the order: see Hearn v Tennant (1808) 14 Ves 136 where Lord Eldon LC held that it was sufficient if the respondent was present when the order was made, applied in Business Mortgage Finance 4 Plc and others v Hussain [2022] EWCA Civ 1264. Similarly, in Australia it is knowledge of the order, and whether that can be established beyond reasonable doubt by inference or direct evidence, that is essential not its personal service: see for instance Amalgamated Television Services Pty Ltd v Marsden (2001) A Crim R 166, amongst others. These cases whilst not binding are persuasive.
    
12. In this case an order for costs was made against the Contemnor when he withdrew his appeal in the substantive proceedings. Certified taxed costs were entered as a judgement debt by the Court on 18 April 2018. There is no evidence that the Contemnor was present when those orders were made. The Contemnor says in his affidavit that the Respondent conducted taxation without his knowledge and he was not aware of the taxed costs until he was served with the notice of motion in support of this application on 23 November 2023.
    
13. There is clear evidence in the affidavit of one of the Respondent’s witnesses, Scott Solomon, that he served the order on the Contemnor’s lawyers on 2 May 2018. That is not sufficient to establish the charge.
    
14. Alfred Atu says in his affidavit that he personally served the Contemnor at his business offices at Hohola, NCD on 15 May 2019. He says that upon asking the Contemnor to acknowledge service, the Contemnor told him that he would read through the documents and asked him to return the following day. Mr Atu returned the next day but the Contemnor did not return the acknowledgement to Mr Atu, who eventually left at 6 pm.
    
15. Whilst obviously preferable, acknowledgement of service is not essential to proving service and we would be satisfied of service on that evidence but for the following matters.
    
16. There is no evidence of the basis upon which Mr Atu identified the person he served as the Contemnor, for instance by acknowledgement or otherwise. It also appears that numerous documents were served that day but Mr Atu did not produce a copy of the order he served, only the covering letter. That, of itself, is not fatal. But the covering letter was addressed to the Contemnor at an address at Renbo Estate when the documents were served at Hohola. Again, that discrepancy is not of itself fatal but it should have been explained. The Contemnor says that he did not receive the documents served by Mr Atu, which he says were served on his lawyer. There is some material elsewhere that supports that possibility. The Respondent has not excluded it beyond reasonable doubt in any event and that is the standard that applies. In all the circumstances the Contemnor must be given the benefit of the doubt.
    
17. Of course, regardless of whether the order was personally served on him previously, the Contemnor can be in no doubt now as to its existence, and its precise terms were set out in the statement of charge which was personally served on him by a police officer. He says he is a law-abiding citizen who has been wrongfully charged. We trust he will now comply with the orders.
    
18. As to costs, there were a number of applications before the Court. All of them failed. In our view the parties should bear their own costs of the contempt proceedings.
    
19. We make the following orders.
    

ORDERS:

(4) The applications by the Appellant/Contemnor are dismissed.
(5) The Appellant/Contemnor is not guilty of contempt for failing to comply with the orders of 18 April 2018.
(6) The parties shall bear their own costs of the contempt proceedings.

________________________________________________________________
Pokea & Associates: Lawyers for the Appellant
Makap Lawyers: Lawyers for the Respondent