N5110
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 203 OF 2011

JOHN SIUNE
Plaintiff

V

RENDLE RIMUA,
SECRETARY, DEPARTMENT OF PETROLEUM AND ENERGY
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2013: 18, 20, 28 March

CONTEMPT – disobedience contempt – alleged disobedience by defendant of court orders to pay plaintiff unpaid entitlements – whether orders clear and unambiguous

The National Court ordered in judicial review proceedings that the first defendant, a Departmental Head, reinstate the plaintiff, a former officer of the Department, by close of business the next day and calculate and pay all unpaid entitlements due and owing to the plaintiff within two days after the date of the order. The first defendant reinstated the plaintiff the next day but did not pay any unpaid entitlements to the plaintiff within the two-day period set by the court, instead making two instalments of the payments, the first one nine days and the second one 28 days after the date set by the court. The plaintiff filed a notice of motion seeking punishment of the first defendant on a charge of contempt of court. The plaintiff claimed that the first defendant (referred to in the judgment as 'the contemnor', being a person charged with contempt) disobeyed the orders and was guilty of contempt in two respects: first, by not complying with the two-day timeframe set by the court, secondly by not fully paying his unpaid entitlements. The plaintiff claimed that his entitlements totalled K372,903.86 but he only received K129,000.82. The contemnor pleaded not guilty and the matter proceeded to trial.

Held:

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

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

(2)	Part of the order was clear (that the plaintiff's unpaid entitlements had to be calculated and paid within two days), while part of the order was ambiguous (no monetary amount was fixed and no method of calculation was set and the basis of calculation was contentious). The first element of the charge was proven only in respect of the part of the order that was clear.

(3)	The order was properly served.

(4)	The failure to comply was deliberate in that the contemnor showed reckless disregard for the need to comply with the order. The third element was proven.

(5)	Accordingly the defendant was found guilty of contempt and the matter will proceed to punishment.

Cases cited

The following cases are cited in the judgment:

Hadkinson v Hadkinson [1952] 2 All ER 567
Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763
Mathew Michael v John Glengme & Isaac Gladwin (2008) N3429
Moses Vua v Francis Mavu (2008) N3294
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Peter Luga v Richard Sikani and The State (2002) N2286
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572
Yap v Tan [1987] PNGLR 227

NOTICE OF MOTION

This is a ruling on a motion under which a defendant in judicial review proceedings was charged with contempt of court.

Counsel

J N Napu, for the plaintiff
E G Manu, for the contemnor (first defendant)

28th March, 2008 

1.       CANNINGS J: The plaintiff John Siune has charged the first defendant, Rendle Rimua, with contempt of court and this is the court's ruling – the verdict – on whether the first defendant (hereafter referred to as 'the contemnor', being a person charged with contempt) is guilty.

2.     The contempt charge arises out of judicial review proceedings the plaintiff, an officer of the Department of Petroleum and Energy, commenced against the contemnor, the Head of that Department. In 2007 the contemnor dismissed the plaintiff from the Public Service after finding him guilty of a disciplinary offence regarding unauthorised use of a departmental vehicle. The plaintiff sought review of his dismissal by the Public Services Commission (PSC), which inquired into the matter and found in the plaintiff's favour on the ground that the disciplinary charges were defective and the plaintiff had been denied natural justice. The PSC on 7 July 2010 decided that the plaintiff's dismissal was annulled and he was to be reinstated and paid all lost salaries and entitlements. The contemnor failed to comply with the PSC decision, and it was his failure to comply which became the subject of the judicial review proceedings.

3.     The judicial review proceedings were the subject of two substantive orders of the National Court. First on 22 December 2011 Manuhu J ordered that:

1	The defendants shall reinstate the plaintiff to his substantive position with the Department of Petroleum and Energy forthwith. 

2	The defendants shall compute and pay to the plaintiff all of his lost salaries and entitlements forthwith.

4.      For some reason, it is not clear why, that order was not complied with and this led the plaintiff to bring an initial charge of contempt against the contemnor. The initial charge was set down for hearing before Sawong J but for some reason it did not proceed. Instead his Honour on 23 May 2012 made the following order:

1	Contempt proceedings against the first defendant is vacated pending compliance of substantive order of Court dated 22 December 2011.

2	All unpaid entitlements due and owing to the plaintiff shall be calculated and paid to him by 12.00 pm, 25 May 2012, by the first defendant.

3	The first defendant shall reinstate the plaintiff by close of business 24 May 2012.

5.     It is that order of 23 May 2012 which is the subject of the charge of contempt. The contemnor reinstated the plaintiff the next day but did not pay any unpaid entitlements to him within the two-day period set by the court. Instead he paid the plaintiff in two instalments, the first on 1 June 2012 in the sum of K57,150.51, and the second on 22 June 2012 in the sum of K71,850.31; the total sum being K129,000.82. The plaintiff claims that he has been underpaid. He has put to the contemnor that he is still owed K243,903.04 comprised of special domestic market allowance, incidentals allowances and other benefits to which he is entitled. The contemnor's position has been and remains that those are discretionary payments and it is not within his power to pay them as the plaintiff's eligibility is determined by the Department of Personnel Management and subject to supervision by the Salaries and Conditions Monitoring Committee.

6.     Aggrieved by the contemnor's stance, the plaintiff has charged him with contempt and applied by notice of motion for orders that he be punished for disobeying the order of 23 May 2012. The contemnor pleaded not guilty and the matter proceeded to trial.

ISSUES

7.     The parties agree that proceedings for contempt are criminal in nature and that for the contemnor to be found guilty of this sort of disobedience contempt, the court must be satisfied beyond reasonable doubt of the three elements of the offence:

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

(See Peter Luga v Richard Sikani and The State (2002) N2286, Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447, Moses Vua v Francis Mavu (2008) N3294, Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763.)

8.       It is undisputed that the contemnor was legally represented in court when the order of 23 May 2012 was made and that the order was duly served. The contemnor does not contest the second element, but he does contest the first and third elements.

WAS THE ORDER CLEAR AND UNAMBIGUOUS?

9.      I find that part of order No 2 was clear: that the plaintiff's unpaid entitlements had to be calculated and paid within two days. I find that the other part of order No 2 was not clear and unambiguous, as no monetary amount of unpaid entitlements was fixed and no method of calculation was set and the basis of calculation is contentious. The court heard evidence from both sides (including oral testimony by the plaintiff and the Department's Director Corporate Services) as to whether the plaintiff had an entitlement to domestic market allowance and the other emoluments comprising the claim for K243,903.04. I do not intend to rule on who is right as there has been insufficient evidence and argument on the matter and the issue does not have to be determined. It is sufficient to say that the second part of the order is ambiguous and still subject to dispute. It follows that the first element of the charge is proven only in respect of the part of the order that was clear.

WAS THERE A DELIBERATE FAILURE TO COMPLY?

10.      As I suggested in Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572 this element of a disobedience contempt charge 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?

11.      Yes, as the contemnor paid nothing to the plaintiff within the timeframe set by the court.

Who failed to comply?

12.     Clearly the contemnor was the person who failed to comply with the order as the order stated expressly that the plaintiff's unpaid entitlements shall be paid by the first defendant.

Was there a deliberate failure to comply?

13.     Mr Manu submits that any failure on the part of the contemnor to comply with the order was not deliberate but resulted from confusion over the amount that had to be paid and genuine difficulties faced by the contemnor in meeting the payment within two days. This was not a case of outright refusal to comply or wilful disobedience. The contemnor had every intention of complying and did the best that could reasonably be expected in the circumstances. He immediately sought advice from the Secretary for Personnel Management. He was 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 was not done. They could not comply with the order and therefore did not fail to comply, so they were found not guilty of contempt.

14.      I reject those submissions. 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 deceitfully or deliberately playing dumb. What must be proven is that the act of non-compliance with the order was deliberate. There is sufficient evidence of that. The contemnor showed a reckless disregard for the need to comply with the order. His degree of recklessness, which is a manifestation of his contempt for the court, is magnified by the fact that he had continuously failed to comply with legal obligations to pay the plaintiff's entitlements for a period of 21 months (from August 2010, when the PSC decision became binding, to May 2012, the date of the National Court decision). Six months before the order that is the subject of the charge the contemnor had been ordered to pay the plaintiff's entitlement's "forthwith". So the order of 23 May 2012 to pay the plaintiff within two days did not come out of the blue. The contemnor should have had all the plaintiff's entitlements calculated and ready to be paid a long time before he was given the order to pay within two days.

15.     The contemnor displayed a careless attitude to his duty to comply with court orders, the importance of which was emphasised by Hinchliffe J in the classic case of Yap v Tan [1987] PNGLR 227 where his Honour quoted with emphatic approval the dicta of Romer LJ in Hadkinson v Hadkinson [1952] 2 All ER 567:

It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged ... it extends even to cases where the person affected by an order believes it to be irregular or even void.

16.     If the contemnor faced genuine difficulty in complying with the order (which difficulty appears to have been of his own making) he should have applied to the Court for an extension of time. He might not have been given further time but at least he could have tried, and if had had tried this would have perhaps been a good defence to this charge as it would be evidence that he was taking the order seriously. I am satisfied beyond reasonable doubt that the contemnor's conduct amounted to a deliberate failure to comply with the order. The third element of the offence is proven. All three elements have been proven. The contemnor will be found guilty.

CONCLUSION

17.      Only part of the order of 23 May 2012 was clear and unambiguous, but it was an important part of the order and it had to be complied with. The contemnor failed to comply and his failure was deliberate. He showed contempt for the court and for that reason he is guilty of the charge of contempt of court.

ORDER

(1)	The contemnor, Rendle Rimua, is adjudged guilty of contempt of court in that he disobeyed the order of the National Court made on 23 May 2012 by not paying all unpaid entitlements due and owing to the plaintiff within the time set by the Court.

(2)	The matter shall proceed to punishment which will be determined by the Court after a separate hearing on punishment, to be conducted at a date and time directed by the Court.

(3)	The contemnor shall remain on bail on the same conditions as previously fixed, subject to his attendance at the hearing on punishment, to which he is summoned.

(4)	The question of costs of the proceedings is reserved.

Verdict accordingly.
_________________________________________________________

Napu & Company Lawyers: Lawyers for the plaintiff
Manu & Associates Lawyers: Lawyers for the contemnor (first defendant)