N6190
                                                                                                                                                                                                                                                                                                                                        
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 163 OF 2015

THOMAS HOLLAND
First Plaintiff

PETER SIPERAU
Second Plaintiff

GABRIEL KOH
Third Plaintiff

V

PHILLIP NAUGA, Auditor-General of Papua New Guinea
First Defendant

AUDITOR-GENERAL’S OFFICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kariko, J
2016: 24th March & 18th April

CONTEMPT - civil contempt - disobedience of court order - elements – whether order deliberately disobeyed - proof beyond reasonable doubt 

Cases Cited

Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533

Legislation

Audit Act 1989
Constitution
Public Service General Orders 
Public Services (Management) Act 1995 

Counsel:

Mr N Mirou, for the Plaintiffs 
Mrs I Mugugia, for the First Defendant/Contemnor

JUDGEMENT

18th April, 2016

1.  KARIKO J: The plaintiffs seek orders that the first defendant, the contemnor, be found guilty and punished for contempt of court for failing to comply with a Court Order made on 16th November, 2015 (Reinstatement Order) that relevantly states: 

“The decision of the Public Services Commission dated 6th January 2015 are binding and shall be complied with as soon as practicable, which means that the first defendant shall reinstate the plaintiffs to their former positions by 16th December 2015 and the first defendant shall reimburse their lost salaries and entitlements by 18th January 2016.” (My underlining)

2.  The contemnor denies the charges. 

Background

3.  It is appropriate to briefly set out the background facts leading up to the Reinstatement Order.

4.  The plaintiffs were senior contract officers employed in the Office of the Auditor-General (the AGO) until terminated from their employment on 16th December 2013. They sought a review of their terminations by the Public Services Commission (the PSC) who on 16th January, 2015 decided that the terminations were unlawful and recommended that the plaintiffs be reinstated to their respective former positions with the AGO. The Auditor-General refused to comply with the decision of the PSC prompting the plaintiffs to file proceedings OS No. 163 of 2015 seeking to have the decision enforced. 

5.  His Honour Cannings, J heard the matter  and found in favour of the plaintiffs and issued the Reinstatement Order which states:  

(1)	The application for enforcement of the decision of the Public Services Commission is granted; and
(2)	The decision of the Public Services Commission dated 6th January 2015 are binding and shall be complied with as soon as practicable, which means that the first defendant shall reinstate the plaintiffs to their former positions by 16th December 2015 and the first defendant shall reimburse their lost salaries and entitlements by 18th January 2016. 
(My underlining)

6.  In short, the Reinstatement Order obliged the Auditor-General to:

(1)	Reinstate the plaintiffs by 16th December 2015; and
(2)	Pay their lost salaries and entitlements by 18th January 2016.

7. The plaintiffs have no issue with the reimbursement of the salaries and entitlements but they allege that the Auditor-General failed to reinstate them as per the Reinstatement Order.

Statement of Charge

8.  The charges against the first defendant, Mr Nauga contained in the Statement of Charge read:

1.	You failed to comply with the part Order No. 2, for the reinstatement of the First, Second and Third Plaintiffs to their substantive senior positions in that you by official letter under your hand dated 14th December 2015 to the Plaintiff’s Lawyers and quote that “be advised that they will be immediately terminated due to the expiration of their respective Employment Contracts”.  In reference to the Administrative Circular under your hand dated 23rd November 2015 you quote that, “the Plaintiffs will resume will duties in the Office, as Ordered but subject to the validity and existence of their Contract of Employment”.

2.	You failed to comply with the terms of the National Court Order 1, in that you did not fully comply with the terms and conditions of the Contracts of Employment provisions, Part X – Sections 40, 41 & 43 of Public Services (Management) Act & General Order No. 9 to give sufficient Notice in consultation with the Secretary, Department of Personnel Management before terminating the Plaintiff’s contracts from the Public Service in compliance with the Public Service Commission decision dated 6th January 2015.
(My underlining)

Evidence

9.   The plaintiffs rely upon the affidavit of one of them, Gabriel Koh, sworn and filed 17th February, 2016. The affidavit discloses the following pertinent facts:

•	At 9am on 16th December, 2015 the plaintiffs reported to the offices of the AGO at TISA Haus, Waigani. 

•	They eventually met with the Auditor-General, the Director (Legal), the Director (HR/Personnel) and the Executive Officer in the Conference Room at 10.10am.

•	Mr Nauga told them he was re-instating them and welcomed them back to the Office. He then advised them the Director (HR/Personnel) would arrange their resumption “including office space, assets and other requirements to make us fit back into the Office”. He also advised them that if any issue arose requiring his attention that could be brought to him. He then left at 10.18am with other staff.   

•	The Director (HR/Personnel) then continued the process of their reinstatement.

•	While she was out of the Conference Room to organize workstations for the plaintiffs, they received a telephone call from their lawyer at 10.45am advising them he had received a letter from the Auditor-General and instructed them to go see him regarding the letter. They left the Conference Room and the Office and advised they would return later.

•	When they got to their lawyer’s office they were shown the letter which is dated 14th December 2015 that stated the plaintiffs would be reinstated but “will be immediately terminated due to the expiration of their respective Employment Contracts.” 

•	Attached to the letter was an Administrative Circular dated 23rd November 2015 by the Auditor-General advising staff that the plaintiffs would be reinstated pursuant to the Court’s Order but that would be subject to the validity of their contracts of employment. 

•	After discussing the letter, the plaintiff’s lawyer advised them not to return to the AGO given the intention of the Auditor-General expressed in the letter.

•	They did not return to the AGO that day or since. 

The law

10.    In Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533, the Supreme Court held that to succeed on a charge for contempt of a court order, these elements must be proved beyond reasonable doubt:

(1)	the order was clear and unambiguous;
(2)	the order was properly served on the contemnor; and
(3)	the contemnor deliberately failed to comply with it.

Issue

11.  The parties agree that the only issue for determination is whether the contemnor deliberately disobeyed the Reinstatement Order to have the plaintiffs reinstated to their former positions by 16th December 2015.

Findings

12.  The evidence of the plaintiffs confirms that the Auditor-General was in the process of having them reinstated on 16th December 2015 when their lawyer phoned them. The evidence suggests they left the AGO’s Office without advising the Director (HR/Personnel) who on behalf of the Auditor-General was then attending to their reinstatements and they never went back to the office to continue the process. They did not on that day raise their concern resulting from the phone call with the Director (HR/Personnel) nor did they request for the Auditor-General to advise on the issue.

13.   The reason given by the plaintiffs as to why they did not allow the process of reinstatement to complete was that their lawyer advised them not to further participate as they were bound to be immediately terminated. I accept that the lawyer may have strongly believed, and likewise his clients, that the plaintiffs were going to be terminated straight after their reinstatements, but the simple fact is that the process of reinstatement never completed due to the actions of the plaintiffs. The plaintiffs’ decision to leave the AGO while they were being reinstated and then not to return interrupted their reinstatements and thereby frustrated the contemnor complying with the Reinstatements Order.  The plaintiffs may well have been terminated at the end of the day but then again, maybe not. We will never know because of the premature actions of the plaintiffs. 

14.  In his letter, Mr Nauga expressed an intention to terminate the plaintiffs after reinstating them but he never actually terminated them. He was not even allowed to reinstate them. The plaintiffs should have waited for the process of reinstatement to continue to completion and then see if indeed the Auditor-General was going to carry out his intention. And if the contemnor did so, the plaintiffs could then argue that there was no “reinstatement”, and that the PSC decision of 6th January 2015 on the procedures relating to termination of contracts was also not honored.  

Conclusion

15.   Contempt of court is a very serious matter and where a contemnor is found guilty for deliberately or willfully disobeying a court order, he is likely to be sent to jail as punishment. 

16.   Proceedings for contempt are criminal in nature and as noted earlier, the standard of proof is proof beyond a reasonable doubt. I am not satisfied to the requisite standard that the contemnor deliberately failed to reinstate the plaintiffs as ordered by this Court on 16th November 2015, and accordingly I find him not guilty of the charges of contempt against him. 

17.   Where does this leave the reinstatement ordered on 16th November 2015.  It cannot simply be ignored because of the premature actions of the plaintiffs on 16th December, 2015 that were based on speculation. The Court has a duty to dispense justice, which is reinforced by Section 155(4) of the Constitution that permits this Court to make such orders as are necessary to do justice in the circumstances of a particular case. I consider that in the circumstances of this case justice would be effectively served by allowing the process commenced on 16th December 2015 to properly conclude. That would give effect to or enforce the Reinstatement Order.

18.  I also note that before issuing the Reinstatement Order, Cannings, J remarked: “If it proves practically difficult for the Auditor-General to reinstate the plaintiffs, due to an organizational restructure or any other reason, it is a practical difficulty which he must resolve.”  To my mind, his Honour’s comments reflect an acknowledgement that there may be difficulties in reinstating the plaintiffs given the passage of time since the terminations and also the fact the plaintiffs’ contracts of employment expired earlier that year. 

19.   How the Auditor-General addresses the issue of the expired contracts or other difficulties such as perhaps the availability of the plaintiffs’ previous positions are matters for Mr Nauga to resolve. But I stress that however the Auditor-General settles such issues must be done in accordance with the law, including being consistent with the terms of the contracts, the Public Service General Orders, the Public Services (Management) Act 1995 and the Audit Act 1989.

Order

20.  The orders I make are:

(1)	The first defendant is found not guilty of the contempt charges against him.

(2)	The first defendant shall by writing invite the plaintiffs to the Auditor-General’s Office at a convenient time before 29th April 2016 to complete the process of their reinstatements commenced on 16th December 2015.

(3)	The first defendant shall by 29th April 2016 complete the process of the plaintiffs’ reinstatements commenced on 16th December 2015. 

(4)	For avoidance of doubt, the plaintiffs are not entitled to any salary or other entitlements for the period 16th December, 2015 to the date of their reinstatements. 

(5)	The plaintiffs shall pay the first defendants’ costs of and incidental to the hearing in relation to the contempt charges, to be taxed if not agreed.              
___________________________________________________________
Eda Legal Services: Lawyer for the Plaintiffs
Solicitor-General:   Lawyer for the First Defendant/Contemnor