N4881

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 297 OF 2011

MADANG COCOA GROWERS EXPORT CO LIMITED
Plaintiff

V

NOILAI GUNAR
First Defendant

GEE GUNAR
Second Defendant

MADANG PROVINCIAL GOVERNMENT
Third Defendant

Madang: Cannings J
2012: 4, 18 October, 8 November

CONTEMPT – disobedience contempt – alleged failure to comply with court order: failure to pay compensation, failure to allow plaintiff exclusive occupation of warehouse, failure to vacate warehouse – whether the order was clear and unambiguous – whether order served on contemnors – whether contemnors failed to comply – whether failure to comply was deliberate.

After finding that the defendants had unlawfully occupied a warehouse and removed the plaintiff's property from it the National Court ordered amongst other things: (5) that the defendants who removed the property were required to return it by a particular date (failing which they would pay compensation), (7) that the plaintiff had the right to exclusive occupation of the warehouse from that date and (8) that the defendants were required to vacate the warehouse by that date. The Court also ordered that unresolved issues at the trial be referred to mediation. The mediation failed and six weeks after the date referred to in the order, the plaintiff filed a motion seeking punishment of six persons (including two of the defendants) for contempt of court on the ground that each of them had disobeyed the orders. All contemnors (persons charged with contempt) pleaded not guilty so a trial was held.

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)	Orders (7) and (8) were clear and unambiguous in that the plaintiff had the right to exclusive occupation of the warehouse and the defendants were required to vacate it by the stipulated date. However it was not clear that the defendants had to pay compensation to the plaintiff by that date, so order (5) was not clear and unambiguous.

(3)	The orders were properly served on all 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)	There was a failure to comply with the order as the plaintiff did not have exclusive occupation of the warehouse and the defendants had not vacated it.

(6)	Those who failed to comply were the first, second and third contemnors. The fourth, fifth and sixth contemnors could not be said to have failed to comply as they were under no direct duty to comply with the order and each of them was not directly responsible for compliance.

(7)	The first contemnor's failure to comply was not deliberate as an officer of the plaintiff prevented him from complying; so the first contemnor was found not guilty.

(8)	The second and third contemnors deliberately failed to comply as it was within their power to ensure compliance and they had the benefit of legal advice, yet they chose not to comply. They were each found guilty of contempt of court.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545
Frank Malara v Turiai Maravila (1998) N1716
Ian Augerea v David Tigavu (2010) N4185
Martin Kenehe v Michael Pearson (2009) N3763
Mathew Michael v John Glengme & Isaac Gladwin (2008) N3429
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Ome Ome Forests Ltd v Ray Cheong (2002) N2289
Peter Ipatas v Sir Mekere Morauta (2001) N2048
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
Sr Diane Liriope v Dr Jethro Usurup (2009) N3572
The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303
Yap v Tan [1987] PNGLR 227

NOTICE OF MOTION

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

Counsel

S Asivo, for the plaintiff, with leave of the Court
T M Ilaisa & O Ore, for the first contemnor
B W Meten, for the second contemnor
Y Wadau, for the third, fourth, fifth & sixth contemnors

8 November, 2012 

1. CANNINGS J: This is a ruling on whether any one or more of six persons charged with contempt of court (the contemnors) are guilty of contempt. The charges have been laid under Division 14.6 of the National Court Rules by the plaintiff, Madang Cocoa Growers Export Co Ltd, by notice of motion in the course of ongoing proceedings, OS No 297 of 2011. 2. Those proceedings concern the occupation and use of a warehouse in Madang town known as the "DPI Buffalo Shed" or "Number 2 Didiman Station". It is on government land controlled by Madang Provincial Government (the third defendant).

3. On 25 June 2012, after a trial, the proceedings were determined largely in the plaintiff's favour. The court found that the provincial government allowed Gee Gunar (the second defendant) to enter the warehouse in early 2011 without the consent of the lawful occupier (the plaintiff) and that he removed the plaintiff's property and established a presence there and that he was assisted by Noilai Gunar (the first defendant). The court made ten orders, the most contentious being the following three, which are those that the plaintiff alleges have been disobeyed:

5	The defendants who, or whose associates, removed the plaintiff's property from the Number 2 Didiman Station Warehouse, Madang, in the period since 31 December 2010, are obliged to return that property, in the condition in which it was in on 31 December 2010, to the plaintiff by 31 July 2012, failing which the relevant defendants shall pay to the plaintiff a reasonable sum by way of compensation to enable the warehouse and the plaintiff's property to be put back in the condition they were in at 31 December 2010. …

7	The plaintiff has the right to exclusive occupation and use of the Number 2 Didiman Station Warehouse, Madang, in the period from 1 August 2012 to 31 July 2014, which shall not be interrupted except with the consent of the plaintiff or by order of the National Court or the Supreme Court.

8	The defendants and their associates and all other persons are required to vacate the Number 2 Didiman Station Warehouse, Madang, leaving it in good order and condition, by 31 July 2012.

4. The six contemnors are:

1.	Noilai Gunar, the first defendant;
2.	Gee Gunar, the second defendant;
3.	Bernard Lange, the Madang Provincial Administrator;
4.	Ganei Agodop, Director, Division of Agriculture and Livestock, Madang Provincial Government;
5.	Godfried Savi, Adviser, Division of Agriculture and Livestock, Madang Provincial Government; and
6.	Thomas Neruse Kolokol, Director, Division of Finance, Madang Provincial Government.

5. The plaintiff made an oral application at the start of the trial of the contempt motion to join Madang Provincial Government (the third defendant) as seventh contemnor but the application was refused as it was made without notice.

6. Mr Wadau, for the third, fourth, fifth and sixth contemnors, submitted that the contempt charges against his clients should be dismissed as they are 'strangers' to the proceedings, OS No 297 of 2011. I reject this submission. The fact that none of them is a party to the proceedings does not provide them with a defence. A person who is not a party can be guilty of contempt of court, just as a party can. The question of whether any of them is guilty can only be determined by a consideration of the elements of contempt.

ELEMENTS OF CONTEMPT

7. The plaintiff has charged the contemnors with committing a 'disobedience' contempt: they have deliberately failed to comply with (or disobeyed) the court's orders. To succeed with this claim, the plaintiff 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.

8. Contempt of court is a criminal matter and the plaintiff must prove the existence of the three elements beyond reasonable doubt. Mr Asivo, for the plaintiff, submitted that because the contemnors were being charged with a disobedience type of contempt the evidentiary burden of proof has shifted to them. I have difficulty with that submission. The legal burden of proving the elements remains at all times with the plaintiff and it is not correct to begin the analysis of the evidence with a blanket proposition that the evidentiary burden of proof rests with the contemnors. 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 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, Martin Kenehe v Michael Pearson (2009) N3763).

I will now consider the three elements of the offence.

FIRST ELEMENT: WERE THE ORDERS OF 25 JUNE 2012 CLEAR AND UNAMBIGUOUS?

9. I uphold the argument of various contemnors that order No 5 was ambiguous in that it did not state which of the defendants were to pay compensation in the event that the plaintiff's property was not returned by the specified date, 31 July 2012. Nor did it state the amount of compensation or by when it was to be paid. None of the contemnors can be found guilty of contempt in respect of order No 5.

10. However, the same cannot be said of order Nos 7 and 8. Order No 7 stated clearly and unambiguously that:

•	the plaintiff has the right to exclusive occupation and use of the warehouse in the period from 1 August 2012 to 31 July 2014; and

•	the plaintiff's occupation and use of the warehouse in that period cannot be interrupted without the consent of the plaintiff or by order of the National Court or the Supreme Court.

11. Order No 8 stated clearly and unambiguously that:

•	the defendants and their associates and all other persons were required to vacate the warehouse by 31 July 2012; and

•	those persons were required to leave the warehouse in good order and condition.

12. The operation of order Nos 7 and 8 was unaffected by order No 9, which stated:

Any dispute as to implementation of these orders, including a claim by the plaintiff for compensation, shall under Rule 5(2) of the ADR [alternative Dispute Resolution] Rules, on the court's own motion, be referred for mediation pursuant to a separate mediation order under Rule 5(4) of the ADR Rules.

13. The mediation order, made the same day, stated amongst other things:

As provided by Rule 5(5) of the ADR Rules, these orders for mediation shall not operate as a stay of the proceeding.

14. The first element, to the extent that the charge relates to disobedience of order Nos 7 and 8, has been made out. The first element is not, however, proven in relation to order No 5 and none of the contemnors can be convicted in relation to the alleged breach of that order.

SECOND ELEMENT: WERE THE CONTEMNORS PROPERLY SERVED?

15. Neither the first nor the second contemnors take issue with service of the order of 25 June 2012. However, the third, fourth, fifth and sixth contemnors dispute service. Their counsel Mr Wadau submits that the orders were served only on the Provincial Administrator's executive officer, Willie Agong. They were not personally served on the contemnors and they were not served on the third defendant, the Madang Provincial Government.

16. I will first deal with the last argument, which is based on Section 7 (service of process) of the Organic Law on Provincial Governments and Local-level Governments, which states:

Any notice, summons, writ or other process required to be served on a Provincial Government ... may be served on an officer designated by the Provincial Government ... for that purpose.

17. Mr Wadau submitted that there was no evidence that Mr Agong was a designated officer, so it could not be said that the order had been served on the provincial government. When I asked Mr Wadau who the designated officer was, he could not provide the answer, which I thought was a curious response and quite unhelpful. If a provincial government's lawyer does not know who the designated officer is, how is a person expected to know how to serve court papers on the provincial government? What if there is no designated officer? Does that mean that the provincial government cannot be served with a court order? I hardly think so. That would be an absurd result and not one that is contemplated by a reasonable interpretation of Section 7, which should be regarded as providing for one but not the only or mandatory method of service on a provincial government. The use of the word "may" in Section 7 demands such an interpretation. I find that service of the order on Mr Agong amounted to service on the provincial government.

18. I find that it also constituted service on the third, fourth, fifth and sixth contemnors, all of whom are officers of Madang Provincial Government. I draw on the approach I took to the issue of proof of service in contempt hearings in Sr Diane Liriope v Dr Jethro Usurup (2009) N3572. 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. The evidence shows that the third contemnor, Mr Lange, attended the mediation conference on 27 and 28 July 2012 and that the plaintiff sent him a series of four letters in the period from July to September 2012 on the subject of the orders of 25 June 2012. He clearly knew about the order and the only reasonable inference to draw from the evidence is that the fourth, fifth and sixth contemnors, all senior provincial government officers, also knew about the order and what it entailed.

19. I find that the plaintiff has proven beyond reasonable doubt that the six contemnors have been served with the order of 25 June 2012.

THIRD ELEMENT: WAS THERE A DELIBERATE FAILURE TO COMPLY WITH THE ORDERS OF 25 JUNE 2012?

20. This element gives effect to the duty of every person, whether a party or not a party to the proceedings which have generated the order, to comply with an order of the court even in the face of a genuine belief that the order was made irregularly or was wrong in law or fact (Yap v Tan [1987] PNGLR 227). As I indicated in Liriope v Usurup this element 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 orders of 25 June 2012?

21. Yes. I find on the evidence that the plaintiff has not had exclusive occupation and use of the warehouse in the period since 1 August 2012 and that its occupation and use of the warehouse in that period has been interrupted without its consent by reason of the presence in the warehouse of property of the first, second and third contemnors. I reject the evidence of the second contemnor that he is not occupying the property as not credible. I also find that the defendants and their associates and all other persons did not vacate the warehouse by 31 July 2012 and the warehouse has not been left in good order and condition. There has been a failure to comply with order Nos 7 and 8.

Who failed to comply?

22. Those who failed to comply were the first, second and third contemnors. The first and second contemnors are defendants in these proceedings and the orders were directed expressly at them. There can be no doubt about their obligation to comply. The third contemnor, Mr Lange, is not a defendant but he is under Section 74(1) of the Organic Law on Provincial Governments and Local-level Governments the "chief executive officer" of Madang Provincial Government, which is one of the defendants to which the orders were expressly directed. His other functions include being the "administrative head of the staff in the province" and being "responsible for the efficient management of administrative services in the province" (Frank Malara v Turiai Maravila (1998) N1716, Peter Ipatas v Sir Mekere Morauta (2001) N2048). The effect of these constitutional functions was to cast upon Mr Lange the duty to ensure that any orders of any court directed at Madang Provincial Government were complied with. He failed to discharge that duty and therefore he must be regarded as having failed personally to comply with the orders of 25 June 2012.

23. Different considerations arise in relation to the fourth, fifth and sixth contemnors. None of them, though senior officers in the Provincial Administration, was directly responsible for compliance. They are in a similar position to the contemnors in Mathew Michael v John Glengme & Isaac Gladwin (2008) N3429. Two provincial education officers were charged with contempt of court for failing to comply with a court order to pay leave fares to schoolteachers. They did all that they were required to do by the order and their duty to do other things was contingent on the Provincial Administrator doing something, which were not done. They could not comply with the order and therefore did not fail to comply, so they were found not guilty of contempt. I follow that case here. I find that the fourth, fifth and sixth contemnors did not fail to comply with the order of 25 June 2012 as none of them was under a direct duty to comply with the order and they required instructions from the Provincial Administrator before being in the position where they were able to comply. 

Was there a deliberate failure to comply?

24. The first contemnor, Noilai Gunar, admits to removing some of the plaintiff's property from the warehouse in December 2010, for "safekeeping" he says, and does not dispute his obligation under the orders of 25 June 2012 to return it and to comply with order Nos 7 and 8. However, he has given evidence that his attempts to comply with the orders have been thwarted by the plaintiff's Executive Director, Stephen Asivo. He alleges that Mr Asivo on 9 July 2012 prevented his gaining access to the warehouse and on 27-28 July 2012 during the mediation conference shouted at him and threatened to punch and kill him. This evidence was not seriously challenged. Mr Asivo, a non-lawyer who represented the plaintiff in these proceedings with the leave of the Court, shrugged off his words and actions in the course of submissions as being something that was not meant to be taken seriously, as something that almost inevitably happened because of the frustration that had built up due to the contemnors not taking the case seriously. That was an unsatisfactory explanation. I accept the allegations of the first contemnor as true and find that he was prevented by Mr Asivo from complying with the orders and was intimidated and threatened by Mr Asivo. In these circumstances it cannot be concluded that he deliberately failed to comply. He will be found not guilty. I will remark later on the implications of Mr Asivo's conduct.

25. As for the second contemnor he was not prevented from complying with the orders. He had legal advice available to him at all relevant times. Mr Meten for Mr Gee Gunar submitted that his client was given to understand that all of the court's orders were subject to mediation and that when the mediation failed the matter would return to court. A similar sort of argument was raised in defence of the contemnor in Liriope v Usurup. It was submitted that the contemnor honestly and genuinely believed that the order was confined in its operation and did not appreciate that the disciplinary action that he took against the plaintiff would be regarded as a breach of a court order and that he never had any intention of disobeying the court's order. I rejected the defence as there was nothing in the terms of the order to warrant the view that it was confined in its operation in the way contended for. I concluded that, despite what he said, the contemnor did not honestly believe that he could take the action that he did with impunity. Further, if the contemnor did honestly believe that he did not have to obtain the leave of the court before taking disciplinary action against the plaintiff that still did not provide him with a defence. He held a mistaken, flawed view of the order, and it was not a reasonable view. I take the same approach here. I do not accept that the second contemnor honestly believed that he could ignore the critical date, 31 July 2012, and fail to comply with the order because the matter was subject to mediation. If he did honestly believe that he could wait until the matter came back to court, that does not provide him with a defence. He held a mistaken, flawed view of the order, which is not a reasonable view. He chose not to comply. I find it proven that the second contemnor deliberately failed to comply with the order. He wilfully disobeyed the order and must be found guilty.

26. I draw similar conclusions regarding the third contemnor, Mr Lange. He was not prevented from complying with the orders. He had legal advice available to him at all relevant times. I cannot find any credible evidence that he honestly believed that it was not his duty as Provincial Administrator to take all steps necessary to ensure that Madang Provincial Government, as third defendant, complied with the order. If he held such a belief it represented a mistaken, flawed and unreasonable view of the order. He chose not to comply. I find it proven that the third contemnor deliberately failed to comply with the order. He wilfully disobeyed the order and must be found guilty.

REMARKS

27. The three elements of contempt have been proven beyond reasonable doubt against the second and third contemnors and they will be convicted. The other contemnors will be acquitted. The second and third contemnors will be subject to 'punishment', the term used by the National Court Rules, Order 14, Rule 49, to describe the penalty imposed on a contemnor who has been found guilty of contempt of court. The Court may punish contempt by committal to prison or fine or both. I will set a time for a punishment hearing, to which the second and third contemnors will be summoned to attend. In the meantime I encourage those contemnors and the plaintiff to try again to settle their differences and reach agreement on how this dispute might be brought to an amicable resolution sooner rather than later. If settlement is reached before the court decides on punishment that would be an influential mitigating factor to be taken into account by the court in deciding on the form and extent of punishment.

28. Finally a word of warning to everyone involved with this case. Intimidation of parties or witnesses in court proceedings will not be tolerated. Such conduct amounts to contempt of court, an offence that is constituted not only by disobedience of a court order (the type of contempt the subject of this judgment) but any act or omission committed in the face of the court or outside court which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice (Andrew Kwimberi v The State (1998) SC545). Taking reprisals on or threatening parties, witnesses or court officials, including lawyers, are other types of contempt which are viewed equally seriously by the courts (Peter Luga v Richard Sikani (2002) N2285, Ian Augerea v David Tigavu (2010) N4185). I issue these remarks generally but also rather pointedly in the direction of the plaintiff's Executive Director, Mr Stephen Asivo, who was the subject of very serious allegations of threats and intimidation, which have been upheld in the course of the Court's findings.

VERDICTS

(1)	The first contemnor, Noilai Gunar, is adjudged not guilty of contempt of court and is acquitted accordingly.

(2)	The second contemnor, Gee Gunar, is adjudged guilty of contempt of court and is convicted accordingly and shall be punished.

(3)	The third contemnor, Bernard Lange, is adjudged guilty of contempt of court and is convicted accordingly and shall be punished.

(4)	The fourth contemnor, Ganei Agodop, is adjudged not guilty of contempt of court and is acquitted accordingly.

(5)	The fifth contemnor, Godfried Savi, is adjudged not guilty of contempt of court and is acquitted accordingly.

(6)	The sixth contemnor, Thomas Neruse Kolokol, is adjudged not guilty of contempt of court and is acquitted accordingly.

Verdicts accordingly.

_____________________________________________________

Thomas More Ilaisa Lawyers: Lawyers for the First Contemnor
Meten Lawyers: Lawyers for the Second Contemnor
Young Wadau Lawyers: Lawyers for the Third, Fourth, Fifth & Sixth Contemnors