PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2019 >> [2019] PGNC 85

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

D'Jest Investments Ltd v Yama [2019] PGNC 85; N7784 (2 April 2019)

N7784

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO 659 OF 2018


D’JEST INVESTMENTS LIMITED TRADING AS TUMBUNA TV
Plaintiff


V


HON PETER YAMA, GOVERNOR, MADANG PROVINCE
First Defendant


MADANG PROVINCIAL GOVERNMENT
Second Defendant


JOHN BIVI, PROVINCIAL ADMINISTRATOR, MADANG
Third Defendant


THOMAS NERUSE, FINANCE DIRECTOR,
MADANG PROVINCIAL GOVERNMENT
Fourth Defendant


PAUL AMERA, PROVINCIAL TREASURER,
MADANG PROVINCIAL GOVERNMENT
Fifth Defendant


Madang: Cannings J
2019: 11, 13, 20, 21 February, 7, 11, 15, 16 March, 2 April


CONTEMPT – disobedience contempt – alleged failure to comply with court order requiring specific performance of contract – alleged failure to release payments and perform contract – whether the order was clear and unambiguous – whether order served on defendants – whether defendants failed to comply – whether failure to comply was deliberate.


In earlier proceedings in which the plaintiff sued the first and second defendants for breach of contract, the Court granted a decree of specific performance requiring those defendants and their servants and agents to release payments due under the contract and fully perform the terms of the contract; and those proceedings were thereby determined. Three months later the plaintiff commenced separate proceedings, by originating summons, against those two defendants and three others, charging each of them with contempt of court, the allegation being that they had deliberately disobeyed the order in the earlier proceedings. All defendants 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 of the three elements of the offence:
(2) The order was clear and unambiguous.

(3) The orders were properly served on only the second defendant, a provincial government.

(4) The third element (deliberate failure to comply) gives rise to three issues:
(5) There was a failure to comply as there was clear evidence that the order had been ignored and no reasonable attempt to comply with it was made and none of the defendants made any genuine attempt to negotiate with the plaintiff or explain any practical difficulties in complying with the order.

(6) Those who failed to comply were the first and second defendants. The third, fourth and fifth defendants 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 defendant’s failure to comply was not deliberate as the order was not personally served on him and although he was a party to the original proceedings, he appeared to be genuinely ignorant of the requirements of the order, and these being criminal proceedings he was entitled to the benefit of reasonable doubt.

(8) The second defendant deliberately failed to comply as it was a corporate entity and a deliberate failure to comply must be imputed to it.

(9) A verdict of guilty was entered against the second defendant, and a verdict of not guilty was entered against all other defendants.

Cases cited


The following cases are cited in the judgment:


Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881
Modowa Trevor Gumoi v Gull Gorgum (2016) SC1520
Re the Honourable Julie Soso Akeke MP (2016) SC1519
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
Yap v Tan [1987] PNGLR 227


ORIGINATING SUMMONS


This is the verdict on a charge of contempt of court against five defendants.


D F Waáu, for the Plaintiff
T M Ilaisa, for the First Defendant
B Lomai, for the Second to Fifth Defendants


2nd April, 2019


1. CANNINGS J: This is the verdict on whether any one or more of five defendants charged with contempt of court is guilty of contempt. The charge has been laid under Division 14.6 of the National Court Rules by the plaintiff, D’Jest Investments Ltd, trading as Tumbuna TV, by originating summons, against:


2. In earlier proceedings, OS No 857 of 2017, in which the plaintiff sued the first and second defendants for breach of contract, the Court granted a decree of specific performance requiring them and their servants and agents to release payments due under the contract and fully perform the terms of the contract; and those proceedings were thereby determined. The order was made on 19 June 2018 in in the following terms:


The Court grants a decree of specific performance of the contract at the centre of the proceedings, namely the contract between D’Jest Investment Limited trading as Tumbuna TV and Madang Provincial Government dated 5 February 2016 and orders accordingly that the first defendant and the second defendant and their agents, servants or employees and/or the assignees shall release payments for the plaintiff and fully perform the terms of the contract in accordance with the terms of the contract.


3. Three months later the plaintiff commenced these contempt proceedings against those two defendants and three others, charging each of them with contempt of court, the allegation being that each of the five defendants had deliberately disobeyed the order in the earlier proceedings. All defendants pleaded not guilty so a trial was held.


ELEMENTS OF CONTEMPT


4. The plaintiff has charged the defendants 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:


5. Contempt of court is a criminal matter and the plaintiff must prove the existence of the three elements beyond reasonable doubt. Each defendant must be treated separately. If one element is not proven against a defendant, that defendant will be not guilty. If all elements are proven against any defendant, a guilty verdict will be entered 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, Re the Honourable Julie Soso Akeke MP (2016) SC1519, Modowa Trevor Gumoi v Gull Gorgum (2016) SC1520).


FIRST ELEMENT: WAS THE ORDER OF 19 JUNE 2018 CLEAR AND UNAMBIGUOUS?


6. The defendants argue that the order is vague and incapable of sustaining a contempt charge as it cross-refers to a contract, the terms of which were discretionary as to the timing of payments, and to which only one of the defendants – Madang Provincial Government – was a party.


7. I agree that the order was expressed in general terms and did not specify what precise payments were to be released and when they had to be released. However, I reject the proposition that such an order is incapable of sustaining a charge of contempt. The order was a simple and straightforward one: the contract between D’Jest Investment Ltd and Madang Provincial Government was to be specifically performed and the first and second defendants “shall release payments for the plaintiff and fully perform the terms of the contract in accordance with all terms of the contract”. I am satisfied that the first element has been proven.


SECOND ELEMENT: WERE THE DEFENDANTS SERVED?


8. This issue must be addressed in relation to each defendant. The plaintiff relies on an affidavit of service by Nathan John, an employee of the plaintiff’s lawyers, who deposes that on 16 July 2018 he served the order of 19 June 2018 on Cathy Jenangi, Executive Assistant, Madang Provincial Government. I am satisfied that this constitutes service on Madang Provincial Government. Section 7 (service of process) of the Organic Law on Provincial Governments and Local-level Governments 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.


9. As I indicated in Madang Cocoa Growers Export Co Ltd v Noilai Gunar, Gee Gunar & Madang Provincial Government (2012) N4881, Section 7 provides for one 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 Ms Jenangi amounted to service on Madang Provincial Government.


10. However, that did not amount to personal service on the first, third, fourth or fifth defendants. I distinguish the facts of this case from those in Madang Cocoa Growers Export Co Ltd v Noilai Gunar, where there was evidence that provincial government officers were aware of the order that was allegedly disobeyed and what it entailed. Here there is no other evidence relevant to the issue of service on the first, third, fourth or fifth defendants and I find that they were not served with the order of 19 June 2018.


THIRD ELEMENT: WAS THERE A DELIBERATE FAILURE TO COMPLY WITH THE ORDER OF 19 JUNE 2018?


11. 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 (2009) N3572 this element gives rise to three issues:


Was there a failure to comply with the order of 19 June 2018?


12. Yes. There is clear evidence that the order has been ignored. No reasonable attempt to comply with it was made and none of the defendants made any genuine attempt to negotiate with the plaintiff or explain any practical difficulties in complying with the order.


Who failed to comply?


13. Those who failed to comply were the first and second defendants. The third, fourth and fifth defendants cannot be said to have failed to comply as they were under no direct duty to comply with the order and each of them is not directly responsible for compliance.


Was there a deliberate failure to comply?


14. I am not satisfied that the first defendant’s failure to comply has been deliberate as the order was not personally served on him and although he was a party to the original proceedings he appeared to be genuinely ignorant of the requirements of the order, and these being criminal proceedings he is entitled to the benefit of reasonable doubt.


15. The second defendant deliberately failed to comply as it is a corporate entity and, in the circumstances, a deliberate failure to comply must be imputed to it.


CONCLUSION


16. The three elements of contempt have been proven beyond reasonable doubt against the second defendant, Madang Provincial Government, which will be convicted. The other defendants will be acquitted. The second defendant will be subject to ‘punishment’, the term used by the National Court Rules, Order 14, Rule 49, to describe the penalty imposed on a defendant who has been found guilty of contempt of court. I will set a time for a punishment hearing. In the meantime, I encourage Madang Provincial Government 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 considered when deciding on the form and extent of punishment.


ORDER


(1) The following verdicts are entered:


  1. The first defendant, Hon Peter Yama, is not guilty.
  2. The second defendant, Madang Provincial Government, is guilty of contempt of court and is convicted accordingly and shall be punished.
  1. The third defendant, John Bivi, is not guilty.
  1. The fourth defendant, Thomas Neruse, is not guilty.
  2. The fifth defendant, Paul Amera, is not guilty.

(2) The proceedings against the first, third, fourth and fifth defendants are dismissed.


(3) The proceedings against the second defendant shall continue and for that purpose a directions hearing on the question of punishment shall be conducted on 23 April 2019 at 1.30 pm.


(4) The question of costs of the proceedings will be addressed at the punishment hearing.


Verdict accordingly.
_____________________________________________________________Ninerah Lawyers: Lawyers for the Plaintiff
Thomas More Ilaisa Lawyers: Lawyers for the First Defendant
Lomai Lawyers & Attorneys: Lawyers for the Second to Fifth Defendants

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2019/85.html