N5273
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 296 OF 2010

AISI IUMA BORE ON BEHALF OF BEHORI CLAN OF FURIMUTI VILLAGE
Plaintiffs

V

CLEMENT MALAISA, LAND TITLES COMMISSION
First Defendant

RAGA KAVANA, REGISTRAR OF TITLES
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

ELIAS WAKORE & CATHERINA WAKORE
Fourth Defendants

FOXIE KAEAKA
Fifth Defendant

Waigani: Cannings J
2013: 4 June, 24 July

CONTEMPT – disobedience contempt – alleged failure to comply with court order restraining defendants from dealing with land the subject of judicial review proceedings – whether the order was clear and unambiguous – whether order served on contemnors – whether contemnors deliberately failed to comply.

The National Court made an interim order in judicial review proceedings commenced by the plaintiffs which challenged the decisions through which the fourth defendants had obtained title to a portion of land. The interim order restrained the defendants, their servants and agents from "dealing with the land that is the subject of these proceedings until further orders". The plaintiffs charged the fourth defendants with contempt of court in relation to two incidents: the first when they allegedly permitted a person to whom they has sold part of the land to come on to the land and carry out earthmoving work, the second when they allegedly engaged the services of local Police to come on to the land and destroy a house and property of one of the plaintiffs who had been living on the land.

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 and unambiguous;
•	it was properly served; and
•	there was a deliberate failure to comply.

(2)	As to the first charge, the plaintiffs failed to prove the facts on which the charge was based so the fourth defendants were found not guilty. 

(3)	As to the second charge, the order did not clearly and unambiguously restrain the sort of conduct that was alleged to constitute the contempt, it being plausible to confine the application of the order to restraining the defendants from transferring their interests in the land or creating new interests in it.

(4)	The order was properly served on the contemnors' lawyers and that was sufficient.

(5)	There was no failure to comply with the order as a reasonable interpretation of it was that it simply restrained the fourth defendants from transferring their interests in the land or creating new interests in it; but if there was a failure, it was not deliberate as there was in place a District Court order that appeared to authorise the conduct alleged to be contemptuous and the District Court order was never set aside.

(6)	Two essential elements of the offence of contempt were not proven in relation to the second charge.

(7)	The fourth defendants were accordingly found not guilty of both charges.

Cases cited

The following cases are cited in the judgment:

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
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572
The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303

NOTICE OF MOTION

This was a motion by which the plaintiffs charged the fourth defendants with two counts of contempt of court for disobeying an order of the National Court.

Counsel

R Tuva, for the plaintiffs
B Lakakit, for the fourth defendants

24th July, 2013

1. CANNINGS J: The plaintiffs, Aisi Ume Bore and other members of Behori clan, have by a statement of charge and notice of motion filed on 20 August 2012 charged the fourth defendants, Elias and Catherina Wakore, with two counts of contempt of court. This is the ruling on whether Mr and Mrs Wakore are guilty of contempt.

2. The contempt charges have been brought in the course of proceedings commenced by the plaintiffs in which they apply for judicial review of decisions regarding the conversion of customary land at 14 Mile, Central Province, to freehold title in favour of Mr and Mrs Wakore. The land has an area of 8.59 hectares and is known as "Vauboto", Portion 2430 Milinch of Granville, Fourmil of Moresby. The decisions were made under the Land (Tenure Conversion) Act 1963 in the period from 2000 to 2002 by the first and second defendants, Mr Malaisa, constituting the Land Titles Commission, and Mr Kavana, Registrar of Titles.

3. On 11 June 2010 the plaintiffs commenced the proceedings. On 12 August 2010 Sevua J made an interim order in the following terms:

1	The plaintiffs' application for leave for judicial review is adjourned to 19 August 2010 at 9.30 am.

2	The defendants, their servants and agents are restrained from dealing with the land that is the subject of these proceedings until further orders.

3	Costs of today's adjournment is awarded to the plaintiffs to be borne by the third defendant, the State.

4. It is order No 2 that the plaintiffs allege the fourth defendants have disobeyed on two occasions. First, when from 26 to 30 April 2012 they allegedly permitted Salome Mon, a person to whom they had sold part of the land, to come on to the land and carry out earthmoving work. The second, when on 21 May 2012 they allegedly engaged the services of local Police to come on to the land and destroy a house and property of one of the plaintiffs, Leo Oke Bore, who had been living on the land.

COUNT 1

5. I find that the plaintiffs, although proving that an incident happened involving Salome Mon coming on to the land and engaging a contractor to do earthmoving work including levelling a hill, have not proven that the fourth defendants in fact sold any of the land to Salome Mon or authorised her to enter the land or do the earthmoving work. There is no evidence that the fourth defendants were present or even that they knew what was happening.

6. A charge of contempt of court, though brought in the context of civil proceedings, is essentially a criminal charge so it is incumbent on the party who is prosecuting the charge to prove the facts said to constitute the offence according to the criminal standard of proof of beyond reasonable doubt. The plaintiffs have not proven the facts necessary to sustain the first allegation. Therefore the fourth defendants are not guilty of count 1.

COUNT 2

7. The plaintiffs have proven beyond reasonable doubt that the second incident happened as alleged. The fourth defendants on 21 May 2012 engaged the services of an armed Police squad based at Gordon Police Station, consisting of eight to ten policemen, who came on to the land in two 10-seater vehicles and destroyed a house and property of one of the plaintiffs, Leo Oke Bore, who had been living on the land, and evicted him from the land.

8. The question arises whether the conduct of the fourth defendants in engaging the Police and requesting that the Police destroy Mr Leo Bore's home put the fourth defendants in contempt of order No 2 of 12 August 2010. The plaintiffs claim that the fourth defendants committed a 'disobedience' contempt: they deliberately failed to comply with (or disobeyed) order No 2 of 12 August 2010. To succeed with this claim the plaintiffs must prove three things:

•	the order was clear and unambiguous;
•	the order was properly served on the contemnors (those charged with contempt: the fourth defendants); and
•	the contemnors deliberately failed to comply with it.

9. The plaintiffs must prove those three elements beyond reasonable doubt. Each contemnor must be treated separately. If one element is not proven against a contemnor that person will be not guilty. If all elements are proven against either 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; Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572). I now consider the three elements of the offence.

1	Was the order of 12 August 2010 clear and unambiguous?

10. No. The order did not clearly and unambiguously restrain the sort of conduct that was alleged to constitute the alleged act of contempt. It is plausible to interpret the order in such a way that it is confined to restraining the defendants from transferring their interests in the land or creating new interests in it. The first element is not satisfied.

2	Was each contemnor properly served?

11. Yes. The order was properly served on the contemnors' lawyers and that was sufficient.

3	Was there a deliberate failure to comply with the order of 12 August 2010?

12. As I indicated in Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572 this element gives rise to three issues:

•	was there a failure to comply?
•	who failed to comply?
•	was it deliberate?

13. There was no failure to comply with the order as a reasonable interpretation of it was that it simply restrained the fourth defendants from transferring their interests in the land or creating new interests in it. But if there was a failure, it cannot be regarded as deliberate as there was in place a District Court eviction order dated 25 May 2010 that appeared to authorise the conduct alleged to be contemptuous and the District Court order had not been set aside. I consider that the fourth defendants could reasonably have formed the view that they were able to engage the Police pursuant to the District Court order to evict Mr Leo Bore and destroy his house, and do all that without breaching the National Court order of 12 August 2010. The third element is not satisfied.

CONCLUSION

14. The plaintiffs have failed to prove that the fourth defendants were involved in the first incident so they are each not guilty of count 1. The facts said to constitute contempt for count 2 were proven but two of the elements of contempt were not proven, so the fourth defendants are each not guilty of count 2. Costs will follow the event.

ORDER

(1)	All relief sought in the plaintiffs' notice of motion filed 20 August 2012 is refused.

(2)	The fourth defendants, Elias Wakore and Catherina Wakore, are each adjudged not guilty of the two counts of contempt of court the subject of the statement of charge and are acquitted accordingly.

(3)	The plaintiffs shall pay the fourth defendants' costs of the notice of motion filed 20 August 2012.

Verdicts accordingly.
_________________________________________________________

Tuva & Associates Lawyers: Lawyers for the plaintiff
Lakakit & Associates Lawyers: Lawyers for the 4th defendants