N3572

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 765 OF 2007

SR DIANNE LIRIOPE
Plaintiff

V

DR JETHRO USURUP
CHIEF EXECUTIVE OFFICER, MODILON GENERAL HOSPITAL
First Contemnor

FR JAN CZUBA
CHAIRMAN, MODILON GENERAL HOSPITAL
Second Contemnor

MR THOMAS MORE ILAISA
PRINCIPAL, THOMAS MORE ILAISA LAWYERS & ATTORNEYS
Third Contemnor

MR JOHN MANALAU
ADMINISTRATION OFFICER, MODILON GENERAL HOSPITAL
Fourth Contemnor

SR MARY KEHENO, ACTING DIRECTOR
NURSING SERVICES, MODILON GENERAL HOSPITAL
Fifth Contemnor

MR ANTONNIE KALISA
DIRECTOR, FINANCE, MODILON GENERAL HOSPITAL
Sixth Contemnor

MR WALTER BAN, HUMAN RESOURCES MANAGER
MODILON GENERAL HOSPITAL
Seventh Contemnor

SR CHRISTINE GAWI, DIRECTOR, NURSING SERVICES,
MODILON GENERAL HOSPITAL
Eighth Contemnor

Madang: Cannings J
2008: 26 May, 24 October
2009: 27 January

VERDICTS

CONTEMPT – disobedience contempt – alleged failure to comply with court order: failure to seek leave of the court prior to taking disciplinary action under Public Services (Management) Act – whether the order was clear and unambiguous – whether order served on contemnors – whether contemnors failed to comply – whether failure to comply was deliberate .

The National Court made orders in court proceedings regarding industrial unrest by nurses at a hospital, which stated: "No disciplinary action is to be taken against the defendants [nurses] without the leave of the court". Ten months later the CEO of the hospital laid disciplinary charges against the nurse who was the principal defendant in the earlier proceedings. Leave of the court was not sought. The nurse was found guilty and dismissed from the Public Service. She commenced court proceedings against the CEO and the chairman of the hospital board and six hospital officers, seeking orders that, amongst other things, they be punished for contempt of court. 

Held:

(1)	Proceedings for contempt are criminal in nature and the court must be satisfied beyond reasonable doubt that the three elements of the offence have been proven to exist:

•	the order was clear;
•	it was properly served; and
•	there was a deliberate failure to comply.

(2)	The order was clear and unambiguous: it was not confined to taking disciplinary action against nurses for engaging in strike action.

(3)	The order was properly served on the first and second contemnors, but there was insufficient evidence of service of the order on the other contemnors.

(4)	The third element (deliberate failure to comply) gives rise to three issues:

•	Was there a failure to comply? 
•	Who failed to comply?
•	Was it deliberate? 

(5)	The order was disobeyed as leave of the court was not obtained to commence disciplinary action. The person who failed to comply was the first contemnor, the CEO. The other contemnors facilitated it but did not "take" disciplinary action against the plaintiff. 

(6)	Failure to comply was deliberate as, though the first contemnor might have honestly believed that he could take disciplinary action without leave of the court, that belief was mistaken and, in the circumstances, not reasonable. Moreover, he made a considered decision to proceed with disciplinary action after being put on notice that he would be breaching the court’s order and be in contempt of court.

(7)	Accordingly the first contemnor was found guilty. The other contemnors were found not guilty.

Cases cited:

Modilon General Hospital v Sr Diane Liriope, Sr Elizabeth Wukawa & 140 Other Nurses, OS No 838 of 2006
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Ome Ome Forests Ltd v Ray Cheong (2002) N2289
Peter Luga v Richard Sikani and The State (2002) N2286
Richard Sikani v The State and Peter Luga (2003) SC807
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303

Abbreviations

The following abbreviations appear in the judgment:

Bros – Brothers
CEO – chief executive officer
CJ – Chief Justice
DCJ – Deputy Chief Justice
ICCC – Independent Consumer and Competition Commission 
J – Justice
K – Kina
Ltd – Limited
N – National Court judgment
No – number
OS – originating summons
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
Pty – Proprietary
SC – Supreme Court judgment
Sr – Sister 
v – versus
WS – writ of summons

NOTICE OF MOTION

This is a ruling on a motion for contempt of court. 

Counsel

Y Wadau, for the plaintiff
T M Ilaisa, for the contemnors

27 January, 2009 

1. CANNINGS J: The plaintiff, Sr Dianne Liriope, a nurse by profession, was the training coordinator at Modilon General Hospital, Madang, until she was dismissed on 30 October 2007. She claims to have been unlawfully dismissed. She says the disciplinary action taken against her was contrary to an order of the National Court, made on 20 November 2006, which prohibited disciplinary action against her or other nurses without the leave of the court. Leave of the court was not sought or obtained before disciplinary action was taken against her. 

2. She claims that the person who laid the disciplinary charges, found her guilty and dismissed her from the Public Service – the hospital’s CEO, Dr Jethro Usurup – is guilty of contempt of court. 

3. She has charged Dr Usurup, the first contemnor, with contempt, along with seven others:

•	second contemnor, Fr Jan Czuba, chairman of the hospital board, who is alleged to have instructed Dr Usurup to lay the charges;

•	third contemnor, Mr Thomas More Ilaisa, the hospital’s lawyer, who is alleged to have drafted the charges;

•	fourth contemnor, Mr John Manalau, the CEO’s administration officer, who served the charges on Sr Liriope; 

•	fifth contemnor, Sr Mary Keheno, the hospital’s acting director of nursing services, who is a member of the hospital’s disciplinary committee, which resolved to lay the charges, and who witnessed and signed service of the penalty of dismissal on Sr Liriope;

•	sixth contemnor, Mr Antonnie Kalisa, the hospital’s director of finance and administration, who is a member of the hospital disciplinary committee, which resolved to lay the charges;

•	seventh contemnor, Mr Walter Ban, the hospital’s human resources manager, who is a member of the hospital disciplinary committee, which resolved to lay the charges;

•	eighth contemnor, Sr Christine Gawi, the hospital’s director of nursing services, who is a member of the hospital disciplinary committee, which resolved to lay the charges.

4. This is my ruling on whether any one or more of the eight contemnors (persons alleged to have committed contempt of court) is guilty of contempt. I am not, at this stage, ruling on any other issues in the originating summons, such as whether Sr Liriope’s dismissal should be quashed. 

THE ORDER OF 20 NOVEMBER 2006

5. The order was made in court proceedings known as OS No 838 of 2006, Modilon General Hospital v Sr Diane Liriope, Sr Elizabeth Wukawa & 140 Other Nurses. There was industrial unrest at the hospital. The nurses, led by Sr Liriope and Sr Wukawa, allegedly went on strike. The hospital, a corporation established under the Public Hospitals Act 1994, commenced proceedings against the nurses. Under the originating summons, the hospital sought orders restraining the nurses from conducting any ‘stop works’ and declarations that meetings held by the nurses were unauthorised and unlawful and that a ‘stop work’ on 13 November 2006 was in contravention of the Public Services (Management) Act.

6. I was the circuit Judge in Madang in November 2006. The matter came before me on several occasions. The hospital sought interim orders that the defendants be restrained from conducting stop works and that they return to normal duties forthwith. 

7. On 13 November 2006 I ordered, amongst other things, that:

The defendants are each and severally restrained from conducting any "STOP WORK" until this case is dealt with or a court of competent jurisdiction orders otherwise.

… the defendants should return to normal duties forthwith.

8. On 20 November 2006 I ordered that:

1.	The order of 13 November 2006 is dissolved and replaced by the following.

2.	The defendants are restrained from taking strike action without the leave of the court.

3.	The defendants may assemble and hold meetings amongst themselves to discuss industrial issues provided that such meetings do not exceed one hour, do not exceed more than two per week and do not interfere with the orderly operation of the hospital.

4.	No disciplinary action is to be taken against the defendants without the leave of the court. [Emphasis added]

5.	The orders are returnable at the first time set for motions at the next sittings of the National Court in Madang.

6.	The substantive matter shall be put on the call-over list for a trial date to be set. 

9. Order No 4 is the order at the centre of the present case. 

THE DISCIPLINARY ACTION AGAINST SR LIRIOPE: SEPTEMBER-OCTOBER 2007

10. On 25 September 2007, Dr Usurup laid two charges against Sr Liriope under the Public Services (Management) Act:

•	absconding from official duty, from 27 to 31 August 2007; and

•	publicly making disparaging written comments, widely circulated, on Dr Usurup’s administration of Modilon General Hospital, without the consent of an authorised officer.

11. On 28 September 2007, Sr Liriope denied the charges but gave no formal explanation in support of her denials. It is evident, however, from the evidence, that, as to the first charge, she says she went to a nursing symposium at Wewak. She asked for leave to go but there was no response. Dr Usurup approved leave for one of her colleagues to attend the symposium. But he did not respond to her request. No one told her that she was not permitted to attend the symposium, she says. 

12. It is clear that she wrote the letter that was the subject of the second charge, making criticism of Dr Usurup’s management of the hospital. For example:

The majority are waiting with bated breath for the day you finally leave this hospital. That day will be a moment of great relief for everyone.

A good leader confronts issues head on, not resort to back stabbing and personal vendetta. You are not a good leader.

I challenge you to hold a public forum and be man enough to stand in public and tell everyone why you are personally attacking me,

I can assure you that there are other issues that staff want to have answers to, and if you are a good manager, call a public forum and be prepared for whatever may come. 

13. On 30 October 2007, Sr Liriope went to Dr Usurup’s office, upon being requested to do so. Dr Usurup was present, together with the Director of Medical Services, Dr Hal Daniels, and Sr Keheno. Sr Liriope was served with two notices of punishment, one for each charge. Each notice stated that the charge was sustained and stated the punishment. For the first charge (absconding) it was reduction in salary by one salary point. For the second charge (disparaging written comments) the punishment was dismissal from the Public Service. 

ELEMENTS OF CONTEMPT

14. Sr Liriope claims that the contemnors have committed a ‘disobedience’ contempt: they have deliberately failed to comply with (or disobeyed) a court order. To succeed with this claim, she must prove three things:

•	the order was clear and unambiguous;

•	the order was properly served on the contemnors (those charged with contempt); and

•	the contemnors deliberately failed to comply with it.

15. Contempt of court is a criminal matter and the plaintiff must prove the existence of the three elements beyond reasonable doubt. Each contemnor must be treated separately. If one element is not proven against a contemnor, that contemnor will be not guilty. If all elements are proven against any contemnor, he or she will be guilty and I will hear the parties on the question of punishment. (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533; The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303; Peter Luga v Richard Sikani and The State (2002) N2286; Ome Ome Forests Ltd v Ray Cheong (2002) N2289; Richard Sikani v The State and Peter Luga (2003) SC807; Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447).

I now consider the three elements of the offence. 

FIRST ELEMENT: WAS THE ORDER OF 20 NOVEMBER 2006 CLEAR AND UNAMBIGUOUS?

16. Mr Ilaisa, for the contemnors, submits that the order was clear but it was not unambiguous. The purpose and effect of the order was confined to prohibiting any disciplinary action against the nurses for their role in the strike action in November 2006. It put an end to the strike. It prevented the hospital from charging the nurses over their involvement in it. Mr Ilaisa asserts that, given the circumstances in which the order was made, it was open to at least two interpretations. On the one hand, it could mean that no disciplinary action could be taken against Sr Liriope or any of the other defendants in OS No 838 of 2006 for the involvement in the strike (which, Mr Ilaisa asserts, is the preferred meaning). On the other hand, it could mean, interpreting the order literally, that no disciplinary action of any form could be taken against any of the defendants without the leave of the court. 

17. I do not accept Mr Ilaisa’s submission. The wording of the order leaves no room for doubt: ‘No disciplinary action is to be taken against the defendants without the leave of the court.’ It is not expressed to be confined to disciplinary action concerning the 2006 industrial unrest. The reasonable and only natural inference arising from the wording of the order is that it covers any disciplinary action of any nature against any of the 142 defendants, whether the disciplinary action relates directly or indirectly to the November 2006 industrial unrest or whether it is entirely unrelated to the November 2006 industrial unrest.

18. The order speaks for itself. It has not been set aside. The court proceedings in which it was obtained have not been completed. The most recent movement on the file was on 28 March 2007 when Davani J ordered that the proceedings be converted to a statement of claim. The plaintiff (the hospital) was given 30 days to file a statement of claim and the defendants were given time to file and serve a defence and cross-claim. Nothing has happened since then. The significance of this is that the proceedings have not been withdrawn or struck out. The case is ongoing. The order of 20 November 2006 continues in force. It means what it says. It is clear and unambiguous.

SECOND ELEMENT: WERE THE CONTEMNORS PROPERLY SERVED?

19. Mr Ilaisa concedes that the order was properly served on Dr Usurup but submits that there is no proof of service of the order on the other contemnors. 

20. This is correct, to some extent. However, I do not think it is necessary to insist on formal proof of service (an affidavit of service) to satisfy this element of the offence. If there is clear evidence that a contemnor has a copy of a court order or is aware of the order and what it says, this will generally be sufficient to satisfy this element of the offence. As I said in Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447 the consequences of not complying with court orders ought not to be avoided on technicalities. 21. Maintenance of the rule of law means that courts need to inculcate in all individuals and corporations an innate and immediate respect for the authority of the courts and the orders that they make. We should not be inviting anybody to find loopholes in court orders.

22. The evidence shows that the second contemnor, Fr Czuba, had a copy of the order of 20 November 2006, at least as early as October 2007. He had an exchange of correspondence, in his capacity as chairman of the hospital board, with Sr Liriope’s lawyer, Mr Wadau, on 24 and 25 October 2007. He clearly knew about the order. He has been properly served. 

23. As for the third contemnor, Mr Ilaisa, it appears that he has been the hospital’s lawyer, providing advice on the matter, for a considerable period. However, he was not the hospital’s lawyer when the 20 November 2006 order was made. He denies ever being served with a copy of the order. Though it is alleged that he was the person who drafted the charges against Sr Liriope, there is insufficient evidence of that. I am not satisfied beyond reasonable doubt that Mr Ilaisa has been properly served.

24. I make the same finding in relation to the other contemnors. The evidence does not support a finding that any of them have been personally served with a copy of the order. Nor is there sufficient evidence that, in September or October 2007, any of them had a copy of the order or were aware of it and what it said. 

25. To sum up, the second element of the offence is proven in relation to the first and second contemnors. It is not proven in relation to the other contemnors.

THIRD ELEMENT: WAS THERE A DELIBERATE FAILURE TO COMPLY WITH THE ORDER OF 20 NOVEMBER 2006?

26. This gives rise to three issues: 

•	Was there a failure to comply? 

•	Who failed to comply?

•	Was it deliberate? 

Was there a failure to comply with the order?

27. Yes. The order was not confined to restraining disciplinary action against the nurses for their involvement in the November 2006 industrial action. It prevented disciplinary action of any sort against any of the defendants in OS No 838 of 2006 without the leave of the court. Sr Liriope was the principal defendant in OS No 838 of 2006. She was protected by the order. Leave of the court to take disciplinary action against her was not sought or obtained at any time. The order of 20 November 2006 was breached. It was disobeyed. 

Who failed to comply?

28. Mr Wadau submits that all eight contemnors failed to comply with the order as they each, individually, played a role in the disciplinary action against Sr Liriope.

29. That is correct, to some extent. Each of them can be said to have facilitated the taking of disciplinary action. However, I find that only one of the contemnors actually took disciplinary action against Sr Liriope: the first contemnor, Dr Usurup. He was the person who laid the disciplinary charges, found her guilty and imposed the punishment. 

30. Fr Czuba was chairman of the board and had knowledge of the disciplinary action and appears to have supported it. Mr Wadau alleges that Fr Czuba gave instructions to Dr Usurup to lay the charges. There is sufficient evidence of this in a letter from Dr Usurup to Mr Wadau of 26 October 2007, in which he states: 

… I believe some of your queries may have been addressed by the hospital board chairman on whose instructions Ms Liriope is being disciplined.

31. However, the exact terms of Fr Czuba’s instructions are not clear from the evidence. Nor is it clear that Fr Czuba, as chairman of the board, had power to give such instructions to the hospital’s CEO. Under the Public Hospitals Act 1994 it is not one of the functions of a hospital board or a board chairman to give instructions to the CEO about disciplinary action against hospital officers. Even if there were clear evidence that Fr Czuba gave express instructions to Dr Usurup, it would not constitute Fr Czuba "taking" disciplinary action.

32. As for the six other contemnors, they were officers of the hospital, simply doing their job. Those who were members of the disciplinary committee may well have initiated or agreed or resolved to take disciplinary action. But this does not amount to "taking" disciplinary action.

33. I therefore find that the only person who failed to comply with the order of 20 November 2006 was Dr Usurup.

Was there a deliberate failure to comply?

34. Mr Ilaisa submits that Dr Usurup honestly and genuinely believed that the order of 20 November 2006 was confined to disciplinary action concerning the November 2006 industrial unrest and that the disciplinary charges he took against Sr Liriope had nothing to do with the November 2006 industrial unrest. He never had any intention of disobeying the court’s order. He has displayed his respect for the court by declining to take any disciplinary action against any of the nurses for what he regards as an unlawful rolling strike.

35. Dr Usurup has given sworn evidence that:

I honestly believe that it was not the intention of the court to ‘bind the hands of the hospital administration’. When the court made the orders in November 2006 to restrain the Modilon General Hospital, the order was in relation to the disciplinary action that could arise against the nurses concerned for strike action in October 2006.

To this day I have not instituted any disciplinary action against any of the striking nurses, including Diane Liriope, for going on strike in October 2006. …

I have religiously obeyed the court order to date.

I have not deliberately or inadvertently breached the court order of November 2006 as alleged by Diane Liriope.

36. I do not accept these contentions. There was nothing in the terms of the order of 20 November 2006 to warrant the view that it was confined in its operation in the way Mr Ilaisa and Dr Usurup contend. 

37. Sr Liriope was the principal defendant in OS No 838 of 2006. The charges were laid against her only ten months after the 20 November 2006 order was made. The proceedings in OS No 838 of 2006 were still on foot. Sr Liriope has given evidence that after November 2006 the working relationship between Dr Usurup and the nurses was not very good. It is hard to avoid the conclusion that there was a connection between the events of November 2006 and the disciplinary action against the nurse who was the principal defendant in the court action commenced by the hospital. I conclude that, despite what he says, Dr Usurup did not honestly believe that he did not have to obtain the leave of the court to take the action that he did.

38. If I am wrong in my assessment of Dr Usurup’s state of mind and, in fact, he did honestly believe that he did not have to obtain the leave of the court, that still does not provide him with a defence. As a matter of law, he held a mistaken, flawed view of the order. And it was not a reasonable view. 

39. As I indicated in Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447 the court does not have to be satisfied that a contemnor was acting disingenuously or deceitfully or deliberately playing dumb. What must be proven is that non-compliance with the order was deliberate. Here, there is ample evidence that Sr Liriope’s lawyer, Mr Wadau, put Dr Usurup on notice that he would breach the court’s order and be in contempt of court if he proceeded with the disciplinary action. Dr Usurup disagreed with Mr Wadau. He defended his position. He made a considered decision to proceed with the disciplinary action without the leave of the court. In these circumstances I find it proven that Dr Usurup deliberately failed to comply with the order. He wilfully disobeyed the order.

40. To sum up, the third element of the offence is proven against the first contemnor. It is not proven in relation to the other contemnors.

CONCLUSIONS

41. I find that, in relation to:

1	the first contemnor, Dr Jethro Usurup, all three elements of the offence of contempt of court have been proven beyond reasonable doubt;

2	the second contemnor, Fr Jan Czuba, only the first two elements of the offence of contempt of court have been proven beyond reasonable doubt;

3	the third contemnor, Mr Thomas More Ilaisa, only the first element of the offence of contempt of court has been proven beyond reasonable doubt; 

4	the fourth contemnor, Mr John Manalau, only the first element of the offence of contempt of court has been proven beyond reasonable doubt; 

5	the fifth contemnor, Sr Mary Keheno, only the first element of the offence of contempt of court has been proven beyond reasonable doubt; 

6	the sixth contemnor, Mr Antonnie Kalisa, only the first element of the offence of contempt of court has been proven beyond reasonable doubt; 

7	the seventh contemnor, Mr Walter Ban, only the first element of the offence of contempt of court has been proven beyond reasonable doubt; 

8	the eighth contemnor, Sr Christine Gawi, only the first element of the offence of contempt of court has been proven beyond reasonable doubt.

VERDICTS

42. In light of the conclusions I have drawn on proof of the elements of the offence of contempt, the following verdicts will be entered:

(1)	The first contemnor, Dr Jethro Usurup, is adjudged guilty of contempt of court and is convicted accordingly.

(2)	The second contemnor, Fr Jan Czuba, is adjudged not guilty of contempt of court and is acquitted accordingly. 

(3)	The third contemnor, Mr Thomas More Ilaisa, is adjudged not guilty of contempt of court and is acquitted accordingly. 

(4)	The fourth contemnor, Mr John Manalau, is adjudged not guilty of contempt of court and is acquitted accordingly. 

(5)	The fifth contemnor, Sr Mary Keheno, is adjudged not guilty of contempt of court and is acquitted accordingly. 

(6)	The sixth contemnor, Mr Antonnie Kalisa, is adjudged not guilty of contempt of court and is acquitted accordingly. 

(7)	The seventh contemnor, Mr Walter Ban, is adjudged not guilty of contempt of court and is acquitted accordingly. 

(8)	The eighth contemnor, Sr Christine Gawi, is adjudged not guilty of contempt of court and is acquitted accordingly.

Verdict accordingly.

____________________________

Young Wadau Lawyers: Lawyers for the plaintiff
Thomas More Ilaisa Lawyers: Lawyers for the contemnors