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Paim Kumbipara Holdings v Mountain Catering Ltd [2021] PGNC 169; N9011 (5 July 2021)

N9011

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1334 OF 2013

BETWEEN
PAIM KUMBIPARA HOLDINGS
Plaintiff

AND:
MOUNTAIN CATERING LIMITED
Defendant

Lae: Dowa J
2021: 17^th May & 5^th July

PRACTICE & PROCEDURE – Interlocutory application to restrain the Plaintiff and the Police commissioner to institute criminal proceedings against the defendants witnesses who filed affidavits in the proceedings. Initiating criminal proceedings alleging false sworn statements pending determination of the civil proceedings is an interference of the witnesses. Utilization of criminal proceeding to jeopardize civil proceedings is an abuse of the court process –– Sufficient provision in the National Court Rules and the Evidence Act. The need to respect its institutions in the justice sector for reaching its common goal-administration of justice and good order – In the interest of justice to allow the due process and procedure in civil proceeding to take their normal course without interference
Cases Cited:

Wartoto -v- State (2015) SC1411

Counsel:

J. Haiara, for the Plaintiff
S. Kesno, for the Defendant

INTERLOCUTORY RULING

5^th July, 2021

1. DOWA J: This is a ruling on an interlocutory application by the Defendants. By Notice of motion the Defendant seeks the following orders:

1. pursuant to order 4, Rule 38(2) of the National Court Rules the requirements for service of this notice of Motion be dispensed with.
   
2. Pursuant to order 4, Rule 46 of the National Court Rules the hearing of the Notice of motion is permitted to proceed ex parte.
   
3. Pursuant to section 155(4) of the Constitution and/or order 12, rule 1 of the National Court Rules pending the determination of this proceeding or until further order, an interlocutory injunction be granted to restrain the Plaintiff, its servants, employees and agents from taking further action with the Royal PNG Constabulary to have the Defendant’s witnesses Julie Sema, Peter Long, David Sneddon and Scott O’Reilly arrested, charged and prosecuted for any offence arising from the contents of their affidavits filed in this proceeding.
   
4. Pursuant to section 155(4) of the Constitution and/or Order 12, Rule 1 of the National Court Rules pending the determination of this proceeding or until further order, an interlocutory injunction be granted to restrain the Commissioner for Police, his servants, employees and agents within the Royal PNG Constabulary to have the Defendant’s witnesses Julie Sema, Peter Long, David Sneddon and Scott O’Reilly arrested, charged and prosecuted for any offence arising from the contents of their affidavits filed in this proceeding.
   
5. Any other orders as the court deems fit.
   
6. The time for entry of these order be abridged to the date of settlement by the Assistant Registrar which shall take place forthwith.
   

2. The Defendant relies on the affidavit of Julie Sema in support of the Application.

Facts

3. Briefly, the Plaintiff instituted proceedings against the Defendant claiming damages for breach of a business management agreement and for outstanding unsettled bills. The Defendants have denied liability. The matter is pending listing for trial on issues of both liability and damages.
   
4. The Defendants have identified and intend to call Julie Sema, Peter Long, David Sneddon and Scott O’Reilly as their witnesses. Affidavits have been filed for the said Julie Sema, Peter Long, David Sneddon and Scott O’Reilly.
   
5. The Defendants, allege, the Plaintiff through its Managing Director, Mr Jonathan Paraia, lodged a complaint with the Department of Police, against the witnesses for swearing false affidavits.
   

6. The Defendants allege, that, Julie Semi is already arrested and charged by the Police for swearing a false affidavit, in respect of her affidavit sworn and filed 10^th September 2020 in these proceedings. She is charged under section 196 of the Criminal Code Act.

7. Ms Julie Sema deposes that she went through a traumatising experience of feeling intimidated by the actions of Mr Paraia and the police investigating officers, only because she has sworn an affidavit in these proceedings.
   

Mr Paraia’s Response

8. Mr Paraia confirms he lodged a complaint with the police against, Julie Sema and the other employees of the Defendant for making false statements in their affidavits filed in this proceeding. He denies using threats or any form of threat or intimidation. He says, the matter is now in the hands of the police to make those arrests and pursue further criminal proceedings, and the current application by the Defendant is an attempt to interfere with the criminal proceedings.
   

Issues

9. The issues for consideration are:
   
   1. Whether the Defendant’s application is an interference and obstruction to the criminal proceedings initiated by the Plaintiff.
      
   2. Whether the Defendant is entitled to the reliefs sought in its Notice of Motion.
      

Whether the application is an interference to the Criminal

proceedings.

10. The facts are not disputed. Mr Paraia and the Plaintiff dispute the contents of the affidavits filed by the Defendant’s witnesses namely, Julie Sema, Peter Long, David Sneddon and Scott O’Reilly. The witnesses are employees, or former employees of the Defendant company.
    
11. Mr Paraia and the Plaintiffs allege the statements in the affidavits of the witnesses filed by the Defendant are false. He therefore lodged a complaint against the witnesses who swore these affidavits with the Police to arrest and charge them for making false statements under oath. Julie Semi has already been arrested and charged.
    
12. The first issue is whether this application is intended to interfere with the criminal proceedings initiated by the Plaintiff and the Police.
    
13. The current civil proceeding was filed by the Plaintiff on 19^th November 2013. The affidavits of the Defendant’s witnesses were filed between July 2015 and 10^th September 2020.
    
14. The current civil proceedings are fixed for listing and pending hearing. The statements filed in Court by the Defendant is in defence of the proceedings filed by the Plaintiff.
    
15. The matter is yet to be tried, and evidence is yet to be called. There is no finding of fact by the Court on those facts and evidence that are filed in these proceedings. The truth or falsehood of the Statements in the affidavits filed by Julie Sema and other witnesses is yet to be determined, and that shall be done at the conclusion of the trial.
    
16. The criminal proceedings initiated by Mr Paraia relate directly to the statements filed by the witnesses in this civil proceeding. The criminal complaint was first lodged on or around 24^th February 2021, and Julie Sema was charged on 26^th Friday 2021.
    
17. In my view, it is too early for the Plaintiff to conclude that the statements made by Julie Sema and the other witnesses are false. The Plaintiff’s claim in this proceeding is contested by the defendant. The parties to the proceedings are entitled to call whomever they want, to be their witnesses. The evidence of these witnesses may be necessary in determining the issues before the Court. It would be improper for a party to act in a manner that is calculated to curtail the freedom of a witness.
    
18. The actions of Mr Paraia and the Plaintiff appear to be an interference of the Defendant’s witnesses from giving evidence in these proceedings. It can be viewed as contemptuous with the court process under Order 14 and Rule 42 of the National Court Rules.
    
19. The Court acknowledges that police have a constitutional duty to receive complaints from its citizens and act upon them. Under section 197(2) of the Constitution, the police are independent and not subject to direction by any one in carrying out its duties. On the same token the Constitution establishes the Supreme and National Courts with its administrative and judicial process for the administration of justice. In the judicial system we have the criminal and the civil processes. Police are involved mainly in the criminal process. Although the Police and the Court play different roles their common goal is preserving peace, good order, enforcement of law and administering justice. In this context, it is expected that each constitutional office will understand and respect each other in their respective processes involved.
    
20. The Supreme Court in Wartoto -v- State (2015) SC 1411 has expressed the need for respecting the Court process. The head note of the judgment, paragraphs 1-8 read as follows:
    

1. A larger range of procedural safeguards are built into the criminal process to give full protection of the law to the accused; the National Court before which the criminal trial is conducted remains duty-bound to conduct those proceedings fairly and according to law, and accused persons committed to stand trial in the National Court should have no reason for concern, at [11]

2. That the National Court is a court of unlimited jurisdiction, coupled with the discretionary powers provided by s 155(4) of the Constitution should not be read and applied to override the criminal trial process in the National Court as stipulated by the Criminal Code, at [12];
   
3. The argument that the alleged facts did not support the charge can be revived before the trial judge. This Court should not deal with those issues, at [14];
   
4. Any issue around irregularity, defect or otherwise alleging an abuse of process, must be raised promptly at the appropriate level of criminal law proceedings, at [51];
   
5. It would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court's civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it, at [52] and [64];
   
6. Unless a person brings an application or proceeding in accordance with the processes and procedures at the relevant and appropriate stages, anything else would be an abuse of processes of the Courts or any prescribed procedure, at [60];
   
7. It would be a clear abuse of the process of any court for an accused to resort to any other means, even s 155(4) of the Constitution, to challenge charges against him or her without first making use of the process and procedures before each of the authorities at each stage of the criminal justice process. At [72];
   
8. The State has all its interests or property rights in public funds paid to a private contractor for certain public works, until the purpose for which the payments are made is achieved or accomplished, at [70];
   
21. Applying the principles to the present case, I am of the view, that it would be inappropriate, and an abuse of the process of this Court for the Plaintiff to resort to any other means including lodging a complaint with the police, to challenge the evidence filed in these proceedings without first making use of the process and procedures established in the civil justice system.
    
22. If the Plaintiff disputes the evidence filed by the Defendant’s witnesses, he can file and call rebuttal evidence. He can object to the whole or some parts of the evidence. He can require the deponents for cross-examination and discredit them in the witness box. The Evidence Act, the National Court Rules, and the trial procedures provide safeguards and process which the Plaintiff can use to dispute and discredit the evidence and establish the truth of matters deposed. This process is not yet exhausted.
    
23. For these reasons, I am of the view that, this application is not an interference of the police investigations. Rather, the actions of the plaintiff are an attempt to interfere with the smooth running of the civil jurisdiction of the National Court.
    

Whether the Defendant is entitled to the Relief sought in the Notice of Motion.

24. The evidence, which is not disputed clearly show, the Plaintiff and Mr Paraia are determined to pursue criminal proceedings against Julie Sema and the other witnesses who have filed affidavits in these proceedings. This may bring fear and intimidate witnesses and will affect a fair trial and a just outcome of the proceedings. In the interest of justice, I would grant the Orders sought in the Notice of Motion.
    

Cost

25. The application is brought about due to the actions of the Plaintiff. The Defendant has been successful in its application. The Defendant shall have the cost of the application.
    

Orders

26. The Court orders that:

1. Pending the determination of this proceeding or until further orders, the Plaintiff, its servants, employees, and agents are restrained from taking further action with the Royal PNG Constabulary to have the Defendant’s witnesses Julie Sema, Peter Long, David Sneddon and Scott O’Reilly arrested, charged, and prosecuted for any offence arising from the contents of their affidavits filed in this proceeding.
   
2. Pending the determination of this proceeding or until further order, the Commissioner for Police, his servants, employees, and agents within the Royal PNG Constabulary are restrained from having the Defendant’s witnesses Julie Sema, Peter Long, David Sneddon and Scott O’Reilly arrested, charged, and prosecuted for any offence arising from the contents of their affidavits filed in this proceeding.
   
3. The Plaintiff pay the cost of the application.
   
4. The time for entry of these order be abridged to the date of settlement by the Assistant Registrar which shall take place forthwith.

________________________________________________________________
Haiara’s Legal Practice: Lawyers for the Plaintiff
Kesno Lawyers: Lawyers for the Defendant