N10160
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 581 OF 2018

BETWEEN:
DAVID PORYKALI
Plaintiff

AND:
HARI JOHN AKIPE, SECRETARY FOR DEPARTMENT OF DEFENCE
First Defendant

AND:
SIMON TUNAPAI, ACTING DEPUTY SECRETARY FOR DEPARTMENT OF DEFENCE
Second Defendant

AND:
TAIES SANSAN, ACTING SECRETARY FOR DEPARTMENT OF PERSONNEL MANGEMENT
Third Defendant

Waigani:   Dingake J
2023:    8th & 17th March

CONTEMPT OF COURT – alleged failure by defendants to comply with court orders – application for contempt brought by plaintiff – defendants allegedly failed to give effect to orders of the court in reinstating plaintiff to his substantive position as First Assistant Secretary of Department of Defence – defendants allegedly failed to pay plaintiff lost salaries and entitlements – whether plaintiff personally served court orders on the defendants – whether terms of the court order are not ambiguous but in clear terms – Plaintiff failed to prove beyond reasonable doubt that the Court Order was clear; was served properly on the Defendants and they, with knowledge of the Order, wilfully disobeyed it – terms of order unclear - application for contempt dismissed – costs follow event

Case Cited:

Ross Bishop & Others v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533
Ian Augerea v Todagia Kelola (2014) N5582
Solomon Tato v Samson Akuani (2016) SC1511
John Siune v Randel Rimua, Secretary for Department of Petroleum & Energy 2013 PGNC 83

Counsel:

Mr. Ezekiel Tolabi, for the Plaintiff
Mr. Copland Raurela, for the First, Second & Third Defendants
Mr. Efraim Bua, for the Fourth Defendant

17th March, 2023

1.	DINGAKE J:	This is an application brought by way of a Notice of Motion filed with this Court on the 24th of December, 2021 (Doc No. 14) filed of record, in which the Plaintiff, pursuant to Order 14 Rules 42(1), 49(1), 46 and 40 seeks, inter alia, that the First, Second, and Third Defendants be found guilty and punished for contempt of Court for failing to comply with the Order made by this Court on the 25th January 2021, and taking steps in direct contravention of Orders of this Court.

2.	The Applicant also prays that a warrant of arrest be issued against the alleged contemnors and that they be kept in interim custody pending full determination of the contempt proceedings herein.

3.	The application is opposed by the alleged contemnors and the State.

4.	The Plaintiff complains that the alleged contemnors have not complied with the Orders of the Court made on the 25th of January 2021 in that:
(1)	They have not reinstated Plaintiff to the position of First Assistant Secretary Financial Services Grade 18.
(2)	Paid Plaintiff all lost salaries, allowances and entitlements from the date of his termination on the 25th of January 2017 to the date of Judgment; and 
(3)	All documents relating to the Plaintiff’s suspension, charge, termination and all others relating to his disciplinary action emanating or instituted against the Plaintiff have not been destroyed or expunged in his presence.

5.	The alleged contemnors have pleaded not guilty to the charges as contained in the Statement of Charge (Doc. No. 15).

6.	The trial was conducted on affidavits.

7.	The material facts of this matter are beyond dispute.

8.	The Plaintiff was formerly employed as First Assistant Secretary, Financial Services with the Department of Defence (the “DoD”) pursuant to an Employment Contract (the “Employment Contract”) signed on 24 December 2013. The Employment Contract was for a period of three (3) years and expired on 23 December 2016.

9.	On 21 December 2016, the Plaintiff was charged by then Secretary, late Vali Asi on two (2) counts of serious disciplinary offences. He was afforded the opportunity to defend himself.

10.	On 25 January 2017, after considering his response to the charges, then Secretary, the late Vali Asi, terminated the Plaintiff from the DoD and the National Public Service.

11.	The Plaintiff appealed the decision to terminate his employment to the Public Service Commission ("PSC”) on 30 January 2017, and on 10 August 2017, PSC delivered its decision reinstating the Plaintiff to his substantive position. By then, the Plaintiff’s Employment Contract with the DoD had expired on 23 December 2016, and was never renewed. Consequently, the Plaintiff was an unattached officer of the Public Service.

12.	The Department of Defence commenced OS(JR) No. 250 of 2018, on 18 April 2018, seeking orders in the nature of certiorari to bring into the National Court and to quash the PSC decision made 10 August 2017.

13.	The Plaintiff commenced this proceeding seeking an order of mandamus to compel DoD to effect the PSC decision on the 10th August 2017.

14.	On 6 March 2020, the Plaintiff’s lawyers wrote to the Second Defendant asking that the DoD organizational restructure should not be approved.

15.	Miviri J delivered his decision on 25 January 2021 and ordered as follows:
(1)	The OR(JR) 250 of 2018 of the 22nd November 2019 dismissed in its entirety as being without merit;
(2)	Costs in that proceeding to follow the event on a party-party basis;
(3)	The OS(JR) 581 of 2018 is granted in fovour of the Plaintiff, David Porykali. –
(a)	It is declared that the decision by the Defendants in not complying with the decision of the Public Service Commission made on the 27th August 2017, is unlawful and wrong.
(b)	Mandamus is granted forthwith and lies against the Defendants to comply and immediately implement the decision of the Public Service Commission made on the 27th August 2018 to:
i)	Reinstate him to his substantive position of First Assistant Secretary Financial Services, Grade 18 which position he held prior to his termination with the Department of Defence and the National Public Service.
ii)	Pay in full his lost salaries, allowances and entitlements from the date of his termination the 25th January 2017, to the date of Judgment today forthwith.
iii)	That all documents relating to his suspension, charge, and termination and all others to his disciplinary action emanating instituted against him be all destroyed in his presence forthwith.
(c)	Damages awarded on exemplary basis to be paid by the defendants to be assessed; and
(d)	Costs in the latter proceedings will follow the event forthwith on a solicitor client basis against the Defendants.

16.	On or about the 4th of February 2021, the Supreme Court, in SCM No. 11 of 2021, stayed of the Court Order of 25 January 2021.

17.	On 16 February 2021, the Plaintiff filed a Notice of Objection to Competency of the Appeal, SCM No. 11 of 2021. On 20 August 2021, the Supreme Court dismissed the Appeal for being incompetent.

18.	On 10 September 2021, the Plaintiff was reinstated as a Public Servant but not to the position as First Assistant Secretary, Financial Services as ordered by the Court on 25 January 2021.

19.	The Department of Defence (“DoD”) then filed a Supreme Court Review, SCR No. 34 of 2021, but that Review was dismissed by Supreme Court on 2 August 2022, for being an abuse of Court process.

20.	Based on the above facts, the Plaintiff contends that the First, Second and Third Defendants have therefore failed to comply with the Court Order made on 25 January 2021.

21.	The only issue before this Court is whether or not the Defendants are guilty of contempt of the Court Order of the 25 January 2021, as the Plaintiff contends.

22.	It is trite learning that the standard of proof in a charge of contempt of Court is beyond reasonable doubt. (Ross Bishop & Others v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533.

23.	The elements of the offence that the Plaintiff must prove are:
(1)	There is a Court Order issued by a Court of competent jurisdiction;
(2)	The Court Order is valid;
(3)	Order must be clear and unambiguous;
(4)	The order must have been properly served upon the alleged contemnors;
(5)	The Defendants failed to obey the terms of the Order; and
(6)	The Defendants failure is intentional, wilful and deliberate.
(Ian Augerea v Todagia Kelola (2014) N5582; Solomon Tato v Samson Akuani (2016) SC1511).

24.	I have gone through the totality of the evidence of the parties filed of record in this matter and it seems incontrovertible that this Court issued an Order on the 25th of January 2021, which Order was valid.

25.	A close scrutiny of the Order reveals that some aspects of it were unclear as I shall demonstrate hereunder.

26.	I consider that Order No. 3 (b)(ii) requiring the Defendants to pay in full “all his lost salaries, allowances and entitlements from the date of his termination to the date of judgment today forthwith” was ambiguous in so far as they were no specified amounts of lost salaries, allowances and unpaid entitlements. It is also note worthy that the Court Order did not provide any formula to calculate what was due to the Plaintiff.

27.	I am fortified in the conclusion I have reached on the ambiguity of the Order by the remarks of my brother Cannings J. to the same effect in the case of John Siune v Randel Rimua, Secretary for Department of Petroleum & Energy 2013 PGNC 83, which was a case involving alleged contempt after the Defendant failed to obey the Court Order, that included, inter alia, an Order that the Defendant pay all unpaid entitlements due and owing to the Plaintiff.

28.	In my respectful view, my finding and or conclusion that the Order of the 25th January 2021, was unclear, means that it cannot be correct or competent to grant the relief sought in this application. The conclusion or finding means that this application should be dismissed on this ground alone.

29.	However, in the event I am wrong in holding that the Order was vague, I think this application would still fail because I am not satisfied beyond reasonable doubt that the alleged contemnors have been served with the Order of this Court.

30.	On the evidence tendered to prove service, being the Affidavit of Ezekiel Tolabi sworn on the 23rd of December 2021, and filed with this Court on the 24th of December 2021, there is no proof that the alleged contemnors were personally and or properly served with the Order of the 25th January 2021.

31.	In the submissions of the Plaintiff on the issue of personal service, the Plaintiff chronicles the sequence of events since the Order of the 25th of January 2021 was issued, including an appeal by the first contemnor in OS(JR) No. 250 of 2018, and the review application (SCR No. 34 of 2021) that was dismissed by Hartshorn J sitting as a single judge of the Supreme Court as proof that the alleged contemnors knew about the Order of the 25th January 2021.

32.	The Plaintiff also argues that the alleged contemnors knew about the Order, the subject matter of this proceedings, because, on the 11th of July, 2022, the statement of charge was read out in the presence of all the alleged contemnors, who denied the charges.

33.	At paragraph 24 of his extract of submissions, the Plaintiff argues that: 

“The fact that two (2) proceedings were commenced in the Supreme Court and two (2) applications for stay were made, clearly exhibit that the Defendants were fully aware of their obligations to comply with the National Court Order”.

34.	On the evidence it seems clear to me that there was no proper service effected on the alleged contemnors and their alleged knowledge of proceedings as indicated above, including the charge being read in their absence, cannot amount to proper service for purposes of contempt proceedings.

35.	In the case of Ross Bishop & Ors v Bishop Bros Engineering Pty Ltd & Ors [1988 – 89] PNGLR 533, at p.545 the Court stated that:

“To sustain an action for contempt of a Court Order, there must be proof beyond reasonable doubt that it has been properly served “upon the alleged contemnor” … More technical service will not be sufficient as the major element of the offence is that it must be a wilful refusal to obey the order.”

36.	In my considered opinion, if a person’s liberty is imperiled by the Court Order, then the Court should only stamp its authority and punish such person for disobedience, with imprisonment, if it is satisfied, that he or she knew about the Court Order and notwithstanding that knowledge deliberately disobeyed it.

37.	I am fortified in the above view by the remarks of the Court in the case of Tutuman Development v Growmax PNG Limited 2015 SC 1407, when it stated that:

“If a man be ordered to do an act, so that his failure to do it may lead him to prison, justice requires that the know precisely what he has to do and by what time he has to do it, …”.

38.	Having regard to all the above, I hold that the charges of contempt against the alleged contemnors cannot succeed because the Plaintiff failed to prove beyond reasonable doubt that the Court Order was clear; was served properly on the Defendants and they, with knowledge of the Order, wilfully disobeyed it.

39.	In the result, the application is dismissed with costs – such costs to be taxed if not agreed.
_______________________________________________________________
Kopunye Lawyers: Lawyer for the Plaintiff
Raurela Lawyers: Lawyer for the First, Second & Third Defendants
Office of the Solicitor General:  Lawyer for the Fourth Defendant