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Wari v Alefay [2024] PGNC 320; N10975 (3 September 2024)

N10975

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 204 OF 2023 (IECMS)

BETWEEN:
DIKA WARI
Plaintiff/Applicant

AND:
JASON ALEFAY
Defendant/Contemnor

Waigani: Carey J
2024: 6^th August & 3^rd September

CONTEMPT OF COURT — failure by the defendant to comply with court orders — application for contempt brought by the plaintiff — Defendant failed to comply with Permanent Protection Orders ordered by the District Court – Elements of contempt.

This is an application by the Plaintiff against the Defendant for contempt of Court. The Plaintiff claims the Defendant is in contempt of court as he has breached some terms of a Permanent Protection Order granted against him in the District Court. The Defendant has chosen not to appear in court and a bench warrant for the arrest of the Defendant exists for failure to come to court.

Held:

1. The Defendant/Contemnor is guilty of contempt of Court for breaching orders granted in the District Court proceedings IPO No 36 of 2023 – Dika Wari v. Jason Alefay.
   
2. The matter shall return for sentencing on 2^nd October 2024 at 9.30 a.m.
   
3. The Defendant/Contemnor shall pay the costs of and incidental to these proceedings on a solicitor and client basis pursuant to Order 22 Rules 34 and 35 of the National Court Rules.

Cases Cited:

Andrew Kwimberi v The State (1998) SC545
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
Solomon Tato v. Samson Akuani (2016) SC1511
Tato v Akunai [2016] PGSC 29; SC1511

Legislation:

The Constitution of the Independent State of Papua New Guinea

Counsel:

Mr. Ezron Ulach, for the Plaintiff/Applicant

JUDGMENT

3^rd September 2024

1. CAREY J: This is an Originating Summons filed by the Plaintiff for the Defendant to be found guilty and punished for contempt of Court for defying Orders made by the District Court on the 7^th of June 2023.
   
2. After this proceeding commenced in the National Court, the Court issued a bench warrant but that has not been executed.
   

BACKGROUND

3. On 25 April 2023, the plaintiff commenced an application for an Interim Protection Order (IPO) proceedings No. 36 of 2023 at the District Court held at Port Moresby against the Defendant/Contemnor and the application was mentioned on 10 May 2023.
   
4. On the 10th of May 2023, the application was heard ex parte and Interim Protection Orders were granted. On the 1st of June 2023, the Defendant/Contemnor with full knowledge of the terms of the IPO, broke into the Plaintiff’s place of residence and harassed and assaulted the Plaintiff using a dangerous weapon.
   
5. On the 7th of June 2023, there was an inter partes hearing at the District Court at Port Moresby. Submissions were made by the Plaintiff and the learned Magistrate granted Permanent Protection Orders for the duration of 2 years. The Defendant was present in Court at that time and was made aware of the terms of the Permanent Protection Orders at that time.
   
6. There have been several alleged breaches of the Permanent Protection Order by the Defendant and so this proceeding was instituted for contempt of Court.
   

ISSUE

1. Did the Defendant breach the Permanent Protection Orders granted by the District Court on 7^th June 2023?
   

DETERMINATION

7. The Constitution of the Independent State of Papua New Guinea, states:
   

“S.37(2) – A contempt of Court is an offence of a criminal nature committed against the Court for which a contemnor may be charged, convicted and punished by the Court, without following the usual criminal procedure prescribed by the written law.”

8. The Supreme Court in Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533 (See also Andrew Kwimberi v The State (1998) SC545 and Tato v Akunai [2016] PGSC 29; SC1511), indicated that for the charge of contempt to succeed the elements must be proven beyond a reasonable doubt as follows:
   
   1. “The order was clear and unambiguous;
   2. the order was properly served on the contemnor;
   100. the contemnor deliberately failed to comply with it; and
   4. the standard of proof is proof beyond a reasonable doubt.”
      
9. In addressing the issues at hand, the Plaintiff relied on the following affidavits:
   
   1. Affidavit of Dika Wari, sworn on 1 August 2023 and filed on 9 August 2023
   2. Supplementary Affidavit of Dika Wari, sworn on 8 August 2023 and filed on 9 August 2023
   100. Affidavit of Dika Wari, sworn and filed on 5 September 2023
   4. Affidavit of Raela Wari, sworn and filed on 5 September 2023
   5. Affidavit of Deborah Wari, sworn on 4 September 2023 and filed on 5 September 2023
   6. Affidavit of Tomasi Kami, sworn on 4 September 2023 and filed on 5 September 2023
   7. Affidavit of Richard Pono, sworn on 4 September 2023 and filed on 5 September 2023.
      
10. The Defendant has not filed any documents in its Defence and the Plaintiff filed a Notice of Motion for substituted service which was granted on the 27^th of June 2024.
    

ADDRESSING THE ELEMENTS OF CONTEMPT

Element 1: The Order must be clear and unambiguous

11. The District Court’s Orders of 7^th June 2023, granting Permanent Protection Orders to the Plaintiff was clear and unambiguous. At the time of the granting of the Order, the Defendant was present in Court and was aware of the Orders.
    

Element 2: The Order must have been properly served upon the alleged contemnor so that he has knowledge of the terms of the Order

12. The court is satisfied that the Defendant has knowledge of the terms of the Order in that he was in Court when the orders were made. Through the evidence presented in Court, it is clear that the Defendant has no registered address or place of residence, however, the Defendant has an email address he has used so service of documents was done via that address.

Element 3: Failure to obey the terms of the order must be willful

13. After being aware of the Court Order issued on 7^th June 2023, the Defendant committed acts that violated those Orders, and those acts were illustrated in the affidavits in support filed.

The Defendant was aware of the court orders in place but disobeyed them willingly.

Evidence presented by the Plaintiff clearly shows that when the Defendant first breached those orders, a day after they were granted, the Defendant was reminded of those orders on that day. The Defendant was even given a reminder about the orders through a forewarning letter from the Plaintiff’s lawyers 7 days after the order was issued. All these did not deter him from continuing to breach the orders on several occasions after that.

Element 4: Standard of proof is proof beyond a reasonable doubt.

14. The offence of contempt of court is criminal in nature. In the case of Solomon Tato v. Samson Akuani (2016) SC1511, it was held that ‘where the contemnor is alleged to have committed a disobedience contempt, the court must be satisfied beyond reasonable doubt...’ of the three elements of the offense before contempt is proven beyond a reasonable doubt. The 3 elements are those mentioned above, being that the order was clear, it was properly served and/or the contemnor was aware of the order, and there was a deliberate failure to comply with the court order. The Plaintiff has submitted sufficient evidence that meet the elements of the offence and so the Court finds that the Defendant is guilty beyond reasonable doubt.

CONCLUSION

15. The law on contempt in this jurisdiction is very clear. I have concluded that the Defendant’s actions indicate a blatant disregard for the law and the court's authority and that warrants a finding of contempt. There is ample evidence to show that the Defendant did commit acts that were in contempt and were in disobedience of a Court Order issued on the 7^th of June 2023.
    
16. In the case of Solomon Tato v. Samson Akuani (2016) SC1511, the court stated that the proper course for any party wishing to challenge an order was to apply for its variation or discharge. The Defendant in this matter, being aware of the Orders of 7th June 2023, did not apply to have the orders variated or discharged, rather he continuously committed acts in breach of the Orders.
    

ORDERS

1. The Defendant/Contemnor is guilty of contempt of Court for breaching orders granted in the District Court proceedings IPO No 36 of 2023 – Dika Wari v. Jason Alefay.
   
2. The matter shall return for sentencing on 2^nd October 2024 at 9.30 a.m.
3. The Defendant/Contemnor shall pay the costs of and incidental to these proceedings on a solicitor and client basis pursuant to Order 22 Rules 34 and 35 of the National Court Rules.
   
4. Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
   

Ordered accordingly.

Posman Kua Aisi Lawyers: Lawyers for the Plaintiff/Applicant