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Wuni v Namah [2017] PGNC 251; N6951 (26 July 2017)

N6951

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS 304 of 2014

BETWEEN:
JOHN WUNI and OTHERS
First Plaintiff

AND:
BEWANI PALM OIL DEVELOPMENT LTD
Second Plaintiff

AND:
PALMS 21 LIMITED
Third Plaintiff

AND:
HON. BELDEN NAMAH et al
(7 other defendants)
Defendants

Waigani: Hartshorn J.
2017: July 25^th, 26^th

Application for direction to registrar to apply for punishment for contempt – Order 14 Rule 47 National Court Rules

Cases:

Toami Kulunga v. Geoffrey Vaki (2014) SC1389

Counsel:

Mr. M. Philip, for the Plaintiff
Mr. J. Brooks, for the Seventh and Eighth Defendants

26^th July, 2017

1. HARTSHORN J. This is a decision on an application by the seventh and eighth defendants, Bewani Oil Palm Plantations Ltd and Bewani Forest Product Ltd (Applicants), for, amongst others, the Registrar of the National Court to be directed to apply by motion or to commence proceedings against the first plaintiff, John Wuni, for punishment for contempt of court (contempt direction).
   

2. Notwithstanding that it was intended that the motion was to be moved ex parte, the motion was served upon the lawyer for Mr. John Wuni. Mr. Wuni’s counsel appeared on his behalf upon the hearing of the motion.

3. The Applicants rely upon Order 14 Rule 47 National Court Rules which is:

“(1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the court or of any other court, the Court may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.”

4. The Applicants seek the contempt direction as:

a) Mr. John Wuni has obtained an ex parte order restraining Bewani Oil Palm Plantations Ltd from conducting logging operations on Portion 160C Milinch Oneka, in proceeding WS 603 of 2017, after he had sought the same or similar relief in an inter partes application in this proceeding before me and I had reserved my decision;

b) This action of Mr. Wuni interferes with the course of justice in this proceeding as it has rendered my reserved decision otiose;

c) The action of Mr. Wuni is aggravated, as it was not disclosed to the Judge in proceeding WS 603 of 2017 that the application on 13^th June 2017 had been made before me in this proceeding and that I had reserved my decision.

5. Counsel for Mr. Wuni, informed the court that he was not and is not the lawyer acting for Mr. Wuni in proceeding WS 603 of 2017. Further, he had not been able to contact Mr. Wuni to discuss the matter with him. It was submitted that this court should wait for the Judge in proceeding WS 603 of 2017 to rule substantively before considering whether to issue the contempt direction that is sought. In addition, it was submitted that the substantive cause of action in proceeding WS603 of 2017 was not the same as the substantive cause of action in this proceeding. In this proceeding the substantive cause of action is concerned with amongst others, a project agreement, and in proceeding WS 603 of 2017 the cause of action is concerned with a Special Agriculture Business Lease.

Consideration

6. It is the case that by virtue of the ex parte decision of the Judge in WS 603 of 2017, my reserved decision as to whether injunctive relief should be granted against Bewani Oil Palm Plantations Ltd has been rendered otiose.

7. A multiplicity of proceedings may constitute an abuse of process, but it is not necessarily a contempt of court. Here, however, in circumstances where proceeding WS 603 of 2017 was commenced by Mr. Wuni one week after I reserved my decision on 13^th June 2017 and the ex parte orders in proceeding WS603 of 2017 were issued on the 6^th and 7^th July 2017, with Mr. Wuni instructing different lawyers, which instruction gives rise to the allegation that Mr. Wuni intended to embark upon a course of action that his lawyers in this proceeding would not countenance, and the hearing before me and my reserved decision not being brought to the attention of the Judge in proceeding WS 603 of 2017, and Mr. Wuni relying on essentially the same evidence that was before me, such actions leading to my reserved decision being rendered otiose; I am satisfied that Mr. Wuni intentionally or otherwise has interfered with the course of justice in this proceeding such that prime facie he is guilty of contempt of this court. I refer in this regard to the Supreme Court decision of Toami Kulunga v. Geoffrey Vaki (2014) SC1389 and Borrie & Lowe, The Law of Contempt 3^rd ed 457- 464.

8. I am not of the view that the substantive decision of the Judge in proceeding WS 603 of 2017, whatever it may be, will detract from the action of Mr. Wuni such that the contempt direction sought should not be made. The Applicants are entitled to the relief that they seek.

Orders

9. As to the notice of motion of the seventh and eighth defendants filed 20^th July 2017, the court orders as follows:

a) The relief sought in paragraphs 1, 6 and 8 are granted;

b) Pursuant to Order 14 Rule 47 National Court Rules the Registrar of the National Court is directed to apply by motion for, or to commence proceedings for, punishment for contempt of court against the first plaintiff, John Wuni;

c) The decision reserved on 13^th June 2017 in this proceeding will be delivered on a date to be advised;

d) This proceeding shall be adjourned to a date to be allocated;

e) Time is abridged.
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Korerua & Associates Lawyers : Lawyers for the Plaintiffs
Ashurst Lawyers: Lawyers for the Seventh and Eighth Defendants