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Ambre v The State [1995] PGNC 101; [1995] PNGLR 453 (17 May 1995)

PNG Law Reports 1995

[1995] PNGLR 453 - Nombri Waime Ambre v The State 

[1995] PNGLR 453

N1324

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NOMBRI WAIME AMBRE

V

THE STATE

Mount Hagen

Injia J

30 March 1995

17 May 1995

CONTEMPT - Civil contempt - Failure of Secretary for Department of Finance and Planning to satisfy certificate of judgment issued pursuant to s 7 Claims By and Against the State Act Ch 30 - Whether Secretary may be cited for contempt of Court.

CONTEMPT - Civil contempt - Practice and procedure - Motion for contempt supported by affidavit instituted by plaintiff’s lawyer - Order for summons to show cause issued against contemnor - Summons to show cause issued by the Registrar - Whether National Court has power to direct or order the issue of summons to show cause against contemnor - National Court Rules, 0 14 rr 42(1), 47.

Facts

The plaintiff instituted proceedings for contempt against the State, in the person of the Secretary for Finance, for his failure to satisfy a certificate of judgment under s 7 of the Claims By and Against the State Act Ch 30. The defendant objected to the competency of the contempt proceedings, arguing that procedures for contempt set out in the National Court Rules had not been complied with.

Held

N1>1.       Pursuant to s 7 of the Claims By and Against the State Act, upon receipt of the certificate of judgment, the Secretary for Finance is personally responsible for satisfying the certificate of judgment issued by the Registrar of the National Court. Therefore, his refusal or neglect in satisfying the certificate of judgment may constitute civil contempt of the Court.

N1>2.       Notwithstanding the absence of any provision in the National Court Rules relating to the Court’s power to order the issue of a summons to show cause following motion for civil contempt of Court instituted by the plaintiff or his lawyer, the National Court, nevertheless, has an inherent power to direct or order the Registrar to issue a summons to show cause requiring the contemnor to appear before the Court at a specified time and place to be dealt with for contempt.

N1>3.       Alternatively, in the absence of any rules of practice in the National Court Rules in respect of the National Court requiring a civil contemnor to appear in court at a specified time and date to be dealt with for contempt, the National Court has power to formulate ad hoc rules pursuant to s 185 of the Constitution, and a summons to show cause is one such procedural rule.

N1>4.       Pursuant s 7 of the Claims By and Against the State Act, the incumbent Secretary for Finance is personally responsible for satisfying a certificate of judgment, and his failure to attend court in answer to the summons to show cause may result in the Court issuing a warrant of arrest to secure his attendance in court.

Cases Cited

Papua New Guinea cases cited

Bishop v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533.

Metta v The State [1992] PNGLR 176.

Robinson v PNG [1986] PNGLR 307.

State v Taua [1985] PNGLR 179.

Yap v Tan [1987] PNGLR 227.

Counsel

D L O’Connor, for the plaintiff.

J Kawi, with G Minjihau, for the defendant.

17 May 1995

INJIA J: In this matter, the plaintiff has instituted proceedings for contempt against the State, in particular, the Secretary for the Department of Finance and Planning, Mr Gerea Aopi, for his failure to satisfy a certificate of judgment which was served upon him pursuant to s 7 of the Claims By and Against the State Act Ch 30 (hereafter, the Act). The defendant objects to the competency of the contempt proceedings on the basis that the plaintiff and the National Court at Mount Hagen, Woods J presiding, did not comply with the procedures for contempt prescribed under the National Court Rules 0 14 rr 38 - 50. Only the competency question was argued before me on 30 March 1995, and I adjourned the matter to today for a ruling.

The circumstances giving rise to the contempt proceedings and the mode of commencement of contempt proceedings are as follows. On 9 September 1994, Woods J awarded damages of K23,311.86 to the plaintiff for personal injuries received in a motor vehicle accident involving a vehicle owned by the defendant. On 20 September 1994, the plaintiff obtained from the Assistant Registrar a certificate of judgment pursuant to s 6 of the Act. On 19 October 1994, the certificate of judgment was personally served on Mr Aopi. No payment was made in satisfaction of the said certificate of judgment.

On 10 February 1995, the plaintiff, by notice of motion and supported by the affidavit of the plaintiff’s lawyer, Mr Desmond L O’Connor, applied for orders as follows:

N2>“1.      That the Secretary for Finance shall pay to the plaintiff the sum of K23,311.86 forthwith pursuant to Section 7 (Claims By and Against The State Act) Chapter No. 30.

N2> 2.      Should the Secretary fail to comply with this order within 14 days of receipt of this order a Summons shall be issued to bring the Secretary before this Court To Show Cause why the Secretary should not be imprisoned for contempt of court.”

There is no evidence to show that the plaintiff served the notice of motion and the supporting affidavit of Mr O’Connor on Mr Aopi or the defendant. The motion was heard on 17 February 1995. Mr Pokia of the Solicitor General’s office appeared for the defendant. Mr Pokia did not raise the issue of service of the documents on Mr Aopi. From this, I infer that the plaintiff did serve the motion and affidavit on the defendant, in particular on Mr Aopi personally. On 17 February 1995, Woods J made the following order:

N2>“1.      A Summons issue to the Secretary for Finance Mr Gerea Aopi to appear at the National Court Mount Hagen on Tuesday 7 March 1995 at 9.30am to show cause why he should not be dealt with for contempt in failing to pay the judgments as requested under s 7 of the Claims By and Against the State Act.”

On 7 March 1995, the matter did not proceed. On 9 March, the Assistant Registrar issued a summons to show cause, extending the summons to 30 March 1995 at 9.30 am. The summons to show cause reads:

“Summons To Show Cause

To: Mr Gerea Aopi

Secretary

Department of Finance

Central Government Office

Waigani

You are required to appear before this Honourable Court at Mt. Hagen on Thursday 30th March 1995, at 9.30am to Show Cause as to why you should not be dealt with for Contempt in Failing to pay the judgment as requested under Section 7 of the Claims By and Against the State Act.

Dated 9th day of March 1995

.....................................

REGISTRAR”

On 10 March 1995, the Assistant Registrar wrote and faxed to Mr Aopi’s counsel a letter, as follows:

“Department of Finance & Planning

P O Box 710

WAIGANI

N.C.D.

Attention: George Minjihau

PLO

By Facsimile: 2884/8141

Dear Sir,

Re: Contempt Proceedings Against Mr Aopi - Secretary For Finance

I refer to your letter of the 07th March 1995 and advise that the previous Orders were extended to the 30th March 1995 when the Secretary is required to appear to show cause as to why he should not be dealt with for Contempt.

Pursuant to the Court Order, Summons to Show Cause have been issued. I attach herewith copies of same by way of Service upon you as the Legal Officer to the Secretary which service I assume you do accept on his behalf.

Please contact the writer if you have any queries.

Yours faithfully,

Imelda Buru (Ms)

Assistant Registrar”

On 29 March 1995, the Solicitor General, Mr Francis Damem, filed an affidavit sworn on 27 March 1995. Mr Aopi also filed an affidavit sworn on 24 March 1995. Both Mr Damem and Mr Aopi acknowledged receipt of the certificate of judgment. However, Mr Aopi said that he could not settle the judgment because the funds for the first quarter allocated to the Unforseen Expenditure Vote, from which judgments are settled, were depleted, and that he was waiting for the second quarter allocation. Mr Aopi said that once those funds are released, “and when that happens, depending on the amount of funds released to the Unforseen Expenditure Vote, attempts shall be made at settling all the outstanding Court Orders inclusive of the above orders”. Both Mr Damem and Mr Aopi said the delay in settling the judgments was also due to the liquidity problems being experienced by the defendant at that time.

Section 6(2) of the Act says: “Where a judgment is given against the State, the registrar ... of the court by which the judgement is given shall issue a certificate in Form 1 to the party in whose favour the judgment is given”. Section 7 of the Act provides that: “On receipt of the certificate of a judgement against the State, the Secretary for Finance shall satisfy the judgement out of moneys legally available.”

The objection to competency was taken only in relation to the mode of commencement of the contempt proceedings in so far as 0 14 rr 38-50 is concerned. Therefore, I will confine my deliberations to the question of competency only. Other related matters, such as the propriety of issuing contempt proceedings, which is in the nature of an execution against the revenue of the State, were raised, but these relate to the substantive issue of the contempt proceeding itself, and so I will not deal with those issues.

Mr Kawi submitted, on behalf of the defendant, that contempt proceedings were instituted or commenced by the summons to show cause issued by the Assistant Registrar pursuant to the Court order of 17 February 1995. He submits that the summons to show cause is not one of the three modes prescribed by the rules for commencement of contempt proceedings, in particular, 0 14 r 38 (contempt committed in the face of the Court or within the hearing of the Court); 0 14 r 42 (1) (contempt committed in connection with proceedings in the court, where an application must be made by motion on notice plus supporting affidavit); or 0 14 r 42(2) (where contempt committed is not in connection with proceedings in the court, in which case proceedings must be commenced by originating summons plus a statement of the charge and affidavit. Also see 0 14 rr 43 and 44). It was also submitted that the summons to show cause was not personally served on the contemnor, Mr Aopi, as required by 0 14 r 45. He submitted that the procedures for contempt are clearly or exhaustively set out in 0 14 rr 38 - 50, and these must be strictly complied with. In support, he cited several cases including Bishop v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533, Robinson v PNG [1986] PNGLR 307, State v Taua [1985] PNGLR 179, and Metta v The State [1992] PNGLR 176.

Mr O’Connor, for the plaintiff, submitted that the summons to show cause was issued under 0 14 r 47, based on abundant evidence before the Court that Mr Aopi had failed to comply with the certificate of judgment served upon him. He submits that the Court must have the power to require the attendance of alleged contemnors and punish them, and 0 14 r 47 provides the machinery for this.

This is a civil contempt case, because it involves allegations of refusal or neglect to do an act required by a judgment or order, or to disobey a judgment or order requiring Mr Aopi to do a specified act: Yap v Tan [1987] PNGLR 227 at 228. For the definition of civil contempt, see Halsbury’s Laws of England (4th edn) vol 9 para 52. The alleged contempt arises in connection with proceedings in the court.

In my view, 0 14 r 47 provides part of the answer to Mr Kawi’s submissions. Order 14 r 47 provides:

N2>“47.    Motion or proceedings by Registrar. (55/11)

(1)      Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the court or of any other court, the Court may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.

(2)      Sub-rule (1) does not affect the right that any person other than the Registrar may have to apply by motion for, or to commence proceedings for, punishment of contempt.”

Pursuant to r 47(2), the plaintiff, or his lawyer under instructions from the plaintiff, was entitled to commence proceedings for contempt. The plaintiff’s lawyer did that by way of notice of motion plus a supporting affidavit. Pursuant to the notice of motion and supporting affidavit, a civil contempt was alleged against Mr Aopi, which led the Court to believe that Mr Aopi had committed contempt of the Court. Based on the notice of motion and affidavit, Woods J made an order requiring the attendance in court of Mr Aopi. Pursuant to s 7 of the Act, Mr Aopi, in his capacity as the Secretary for Finance, is personally responsible for settling the certificate of judgment on behalf of the defendant. His failure to do so without good cause may amount to civil contempt of the Court. The order was for a summons to show cause to be issued. The summons to show cause was issued by the Assistant Registrar in Mount Hagen. Therefore, the summons to show cause did not constitute commencement of the contempt proceedings, because the contempt proceedings had already been commenced by the plaintiff, in accordance with 0 14 r 42(1).

The real issue is whether the Court may issue a summons to show cause to a contemnor in a case where the plaintiff has instituted proceedings for a civil contempt by motion on notice and supporting affidavit. There is no provision in the National Court Rules for summons to show cause. Does the Court have the power to devise and issue one?

The National Court is a court of unlimited jurisdiction: Constitution  s 166(1). It has the inherent power to punish contemnors for contempt of the Court. What constitutes contempt of the Court, and the punishment for contempt, are not prescribed by statute; rather it is left to the Court to define, in accordance with principles established by precedent: Constitution s 37(2). It is true that the procedures for contempt are prescribed in the National Court Rules 0 14 rr 38 - 50. It is also true that no provision exists in the rules for a summons to be issued where a contemnor fails to attend court on the time and place specified in the notice of motion. The only provision is for a warrant of arrest: 0 14 r 46. Nevertheless, in my view, the Court has an inherent power to require the attendance of an alleged civil contemnor. If upon service on the contemnor of the notice of motion and supporting affidavit, the contemnor does not appear on the date and time fixed in the notice, the Court has wide powers to either issue a warrant for his arrest, which form is provided for by 0 14 r 46, or alternatively issue some kind of order or direction in the nature of a summons, which would require the attendance of the contemnor before the Court at a specified time and place. A summons is defined as a “document issued from the office of a court of justice, calling upon the person to whom it is directed to attend before a judge or officer of the court”: Osborn’s Concise Law Dictionary (8th edn) (Sweet & Maxwell, 1993). On 17 February 1995, Woods J was faced with a motion to deal with Mr Aopi for contempt. On that day, Mr Aopi did not appear, but his lawyer, Mr Pokia, did. Woods J made an order authorising the Registrar, who was in charge of the office of the Court, to issue a summons calling upon Mr Aopi to attend before him to explain why he should not be dealt with for contempt of the Court. On 7 March 1995, the summons was extended to 30 March 1995. In the circumstances, I do not see anything wrong or irregular with the summons to show cause, both in form and substance.

In the alternative, the National Court is empowered by s 185 of the Constitution to make ad hoc rules where no adequate rules of practice and procedure exist in a particular matter. Section 185 provides:

“If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

In my view, there being no adequate provision in the National Court Rules 0 14 rr 38 - 50 for the Court to require a civil contemnor to appear before the Court to be dealt with for contempt, a summons to show cause was an appropriate ad hoc procedural form which the National Court could formulate and issue.

On 30 March 1995, Mr Aopi did not appear in person. Instead, he filed an affidavit, which I referred to earlier on. Although his lawyers took issue with the method of service of the summons by facsimile transmission, they did not take issue with the service of notice of motion and affidavit of Mr O’Connor. I have already said that the summons to show cause did not constitute a commencement of the contempt proceeding. From all this, I infer that service of the documents is not the real issue here.

The summons to show cause requires the personal attendance of Mr Aopi in court; not by his lawyer or by filing an affidavit. That is not good enough, because the lawyer for the plaintiff and the Court may want to ask him questions regarding his affidavit. He may also wish to give other evidence. He must also be present to receive the verdict of the Court and punishment, if any, the Court might impose.

For the above reasons, I would dismiss the objection as to competency and order that the summons be extended to 26 May 1996 at 9.30 am, failing which the Court may consider issuing a warrant for the arrest of Mr Aopi. For the sake of completeness, I would also direct the Registrar to cause a copy of this ruling, a copy of the extended summons to show cause, the court order of 17 February 1995, the notice of motion filed on 10 February 1995, and the affidavit of Mr D L O’Connor, sworn on 10 February 1995, to be personally served upon Mr Aopi.

The objection as to competency was also taken in relation to other similar matters. This same ruling applies to all of these matters. They are:

WS 85/93 Bai Wamundi v The State

WS 1255/89 Lia Kupa v The State

WS 102/90 Alex Aral Dua v The State

WS 64/93 Steven Kasbu v The State

Costs be in the cause.

Lawyer for the plaintiff: D L O’Connor.

Lawyer for the defendant: Solicitor General.