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Exxonmobil PNG Ltd v Tukupa Walo Incorporated Land Group (no 16078) [2025] PGNC 309; N11454 (20 June 2025)

N11454

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA NO. 36 OF 2021

BETWEEN:
EXXONMOBIL PNG LIMITED
Appellant/Applicant

AND:
TUKUPA WALO INCORPORATED LAND GROUP (no 16078)
Respondent

IN THE MATTER OF CHARGES OF CONTEMPT OF COURT

TUKUPA WALO INCORPORATED LAND GROUP (no 16078)
First Contemnor

EDWARD PENO TAJA aka EDWARD PENO
Second Contemnor

WAIGANI: PURDON-SULLY J
12, 20 JUNE 2025

CONTEMPT OF COURT – punishment – after trial – disobedience contempt – whether committal to prison or fine or costs is appropriate – mitigating and aggravating factors – extent of punishment.

Cases cited
Newsat Ltd v Telikom PNG Ltd (2007) N3673
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572
Ian Augerea v David Tigavu (2010) N4188
Elias Padura v Stephanie Valakvi (2012) N4830
John Siune v Rendle Rimua (2013) N5110
Ian Augerea v Peter Charles Yama (2014) N5476
Ian Augerea v Hon Anton Yagama MP (2014) N5477
Kulunga v Vaki [2014] SC1394
Peter Luga v Richard Sikani (2002) N2285
Elias Padura v Stephanie Valikvi (2012) N4894
The State v John Rumet Kaputin [1979] PNGLR 544
Yap v Tan [1987] PNGLR 227
Bishop Brothers v Ross Bishop (1989) N690
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
Re Valentine Kambori (No 3) (2003) N2490
Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923
Sr Dianne Liriope v Dr Jethro Usurup (2009) N3931
Ian Augerea v Augustine Koroma (2014) N5475

Counsel
Mr A Roden-Paru with Ms G Jiki for the applicant
Mr Edward Peno as Chairman of the First Contemnor (now de-registered)
Mr H Maladina for second contemnor

THESE REASONS WERE DELIVERED EX TEMPORE AND HAVE BEEN CORRECTED FOR MINOR AND GRAMMATICAL ERROR

1. PURDON-SULLY J: On 2 May 2025, the first and second contemnors were found guilty of contempt of court for failing to comply with an order of the National Court of 13 April 2022 (the injunction order) as extended on 27 April 2022 (the injunction extension order) in the course of ongoing court proceedings.
2. The injunction order provided that pending the determination of those court proceedings or until further order of the court, the first contemnor and its Chairman, the second contemnor Edward Peno Taja, their servants, agents, supporters and relatives of the second contemnor Edward Peno Taja be restrained from:
   1. causing or setting up blockades or in any other way interfering with the Appellant's or its employees and/or its contractors and their respective employees access to and use of the Hides Gas Conditioning Plant (HGCP) and work sites in PDL7 Hides;
   2. entering upon the land within the fenced area of the HGCP and other work sites in PDL7 Hides or within 100 metres of such sites;
   100. entering upon any work site of the Appellant or its contractors or within 100 meters of the HGCP site at PDL7 Hides;
   4. approaching and or impeding any vehicle being used by the Appellant, its employees and/or its contractors and their respective employees at PDL7 Hides;
   5. intimidating, coercing or making threats by word of mouth, letter, telephone, email or otherwise against the Appellant, its employees and/or its contractors and their respective employees or encouraging others to do so;
   6. attempting to enforce or enforcing the decision of the Petroleum Warden dated 16 November 2021 in EDC 1 of 2021 ExxonMobil PNG Limited pending determination of the proceedings; or
   4. harming, preventing, interfering or attempting to harm, prevent or interfere with the Appellant, its employees and/or its contractors and their respective employees or encouraging others to do so.
      
3. The contemnors disobeyed the Court orders when on 20 July 2022 they inter alia set up a road block as outlined in the Statement of Charge dated 28 July 2022, a large group of clan members blocking the main supply route from Komo airport to the Hides project facility resulting in vehicles being used by the applicant, some of which transported employees and contractors to the facility, being prevented from passing, the second contemnor at the time making threatening statements as to what would occur if their demands were not met.
4. The Court found beyond reasonable doubt that the first and second contemnor were responsible for the disruptions and threats as outlined in the Statement of Charge, that they knew their conduct, as so particularised, would be in breach of the injunction order however they then wilfully, intentionally and contemptuously chose not to comply with the injunction order later extended.
   
5. Having handed down guilty verdicts with respect to both contemnors the matter was adjourned to enable written submissions on penalty to be filed. Both the applicant and the second contemnor did so. The first contemnor, who is represented by its Chairman the second contemnor, Mr Peno, failed to comply however through his lawyer he provided an explanation for his failure which explanation the court accepts.
6. The matter was then relisted before me on 2 June 2025 for the taking of oral submissions. It did not proceed on the date due to the short notice and the unavailability of the contemnors and Counsel for the second contemnor. It was then adjourned to 12 June 2025 for the taking of further submissions on penalty. Neither Counsel for the second contemnor nor Mr Peno as the Chairman of the first contemnor appeared on that date.
7. I was informed they had left court to attend a meeting with the Minister for Land and Physical Planning. I gave ex tempore reasons as to why I proceeded to hear the matter in their absence and take oral submissions.
8. The Court proceeded to do so taking oral submissions from Counsel for the applicant. Counsel for the applicant informed the Court that the applicant is no longer seeking a permanent injunction or any orders against the first contemnor as a result of the first contemnor having recently taken steps to de-register itself.
9. The applicant seeks that the second contemnor pay a fine of K45,000 within one month failing which a term of imprisonment be imposed for a period of twelve (12) months.
10. I then adjourned the matter to today at 9.30am to afford the second contemnor an opportunity to be heard on penalty and I ordered that the second contemnor to present himself in person which he has done and I issued a chamber order seeking an explanation by affidavit by Counsel for the second contemnor for his non-attendance at Court on 12 June 2025. Mr Maladina has apologised to the Court today for his non-attendance and I accept his apology. I understand the difficulties with respect to the unavailability of Court rooms resulting in matters being stood down and or parties having to wait can cause particularly when they have other commitments.
11. However it is trite to say that any agreement between Counsel that the matter should be adjourned is a matter that needs to be raised with the Judge rather than it be assumed that an adjournment will be granted given that this is a very busy Court and dates for hearing are sometimes difficult to accommodate if the matter is to be adjourned and in the context of the background of this matter where it has been in the Court system for some time through no fault of the parties involved, and where there was a need for the contempt application to be re-heard.
12. The second contemnor, Mr Peno, is present today. He was given the opportunity to address the Court on the question of punishment before the Court handed down its decision. He stated that he was remorseful for his actions and he apologised.
    
13. I have otherwise considered the written submissions filed on behalf of the applicant and second contemnor.
14. As noted earlier the applicant does not seek a penalty against the first contemnor.
15. This is the Court’s decision on penalty.
16. To determine the appropriate penalty I shall follow the decision- making process outlined in a number of National Court decisions on punishment for contempt (Newsat Ltd v Telikom PNG Ltd (2007) N3673, Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572, Ian Augerea v David Tigavu (2010) N4188, Elias Padura v Stephanie Valakvi (2012) N4830, John Siune v Rendle Rimua (2013) N5110, Ian Augerea v Peter Charles Yama (2014) N5476, Ian Augerea v Hon Anton Yagama MP (2014) N5477) as adopted by the Supreme Court in Kulunga v Vaki [2014] SC1394 (Cannings J, Sawong & Geita JJ) (Kulunga) at [27]).
    
17. There are seven (7) steps as follows:

Step 1: what is the maximum punishment?

Step 2: what is a proper starting point?

Step 3: what punishment has been imposed in equivalent cases?

Step 4: what are the mitigating and aggravating factors?

Step 5: what is the appropriate form of punishment?

Step 6: what should the extent of the punishment be?

Step 7: should all or part of the punishment be suspended?

18. I turn now to each step as outlined.

STEP 1: WHAT IS THE MAXIMUM PUNISHMENT?

19. The law under which this matter has been prosecuted does not fix a maximum punishment for contempt. Order 14 Rule 49(1) (punishment) of the National Court Rules states:

Where the contemnor is not a corporation the Court may punish contempt by committal to prison or fine or both.

20. Subsection (3) goes on to provide that:

The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment where the contemnor gives security in such manner and in such sum as the Court my approve for good behaviour and performs the terms of the security.

21. The Court therefore has a very wide discretion as to punishment.
22. In addition to committal to prison and a fine, the Court has the option of making an order for costs, including costs on an indemnity basis.
23. Based on the authorities to which I have been referred and the Court’s wide discretion and how it should be exercised I view the notional maximum penalty as 18 months imprisonment and/or a fine of K50,000 and/or an order for payment of costs on an indemnity basis.
24. In considering the authorities and a proper approach as regards to this step, I place some weight on the maximum notional penalty awarded in Kulunga and the reasoning of the Court in that case.
25. While in that case the fact that each of the contemnors was a lawyer and an officer of the court, warranting in the view of the Supreme Court a notional maximum greater than that appropriate for persons who are not officers of the Court, in the case before me I have had regard to the fact that the contempt involved breach of a Court order, a serious matter at any time but made more so on the facts here, in circumstances where the first contemnor, of which the second contemnor was Chairman, was then a party to the proceedings conducted on its behalf by the second contemnor in which the order that was breached was made. To put that into context, at a time when the first contemnor was seeking the Court’s assistance seeking a favourable outcome in a dispute with the applicant, it breached an order of that Court made in those proceedings.
26. Neither contemnor could be said to be inexperienced in matters relating to Court litigation, having sought the Court’s assistance in earlier proceedings initiated by the first contemnor and again conducted on its behalf by the second contemnor.
27. Indeed, any attempt to present the second contemnor as someone inexperienced in the ways of the world, locked in some David and Goliath struggle against the power of an international company must be rejected. I found in handing down my judgment that the second contemnor, an intelligent man, was able to effectively use the power he had to advance the cause of his clan as he viewed their interests. Indeed, the recent deregistration of the first contemnor, conceded by the second contemnor, and his meeting with the relevant Minister would suggest that the second contemnor is well able to continue to advance the interests of his clan as seen by him during the course of proceedings where the first contemnor had been found guilty of contempt and he knew that the applicant was seeking that it be fined for such contempt.
28. Given that the contemnors were legally represented during the proceedings when the relevant court order was breached and given that the contemnors had been forewarned by the applicant what would happen if they breached the order, and did so notwithstanding, it is a circumstance that makes the breach particularly serious.
29. I have concluded that the notional maximum penalty is eighteen months imprisonment or a fine of K50,000.00 and/or an order for payment of costs.
30. In so concluding I have also considered the unchallenged evidence before the Court of the financial consequences to the applicant of the breach and the disruption generally to a large project of national significance. To my mind, there is a difference between a litigant who breaches, for example, an order not to attend a particular place at a particular time and does so without or with minimal consequence including financial consequences, and a litigant who breaches an order of the Court not to set up a blockade and does so resulting in employees of the applicant or its contractors having to be airlifted at significant expense into their place of work. It is an aggravating factor.

STEP 2: WHAT IS A PROPER STARTING POINT?

31. Given the nature and extent of the contempt and the findings of fact by the Court that led to its verdict, an appropriate starting point is in the middle of the range: namely 9 months imprisonment or a fine of K25,000.00 and/or an order for payment of costs.

STEP 3: WHAT PUNISHMENT HAS BEEN IMPOSED IN EQUIVALENT CASES?

32. In Peter Luga v Richard Sikani (2002) N2285 Sakora J explained that contempt of Court can be constituted by a number of different sorts of conduct, the main categories being:
    1. improper behaviour in a courtroom during a hearing; the "contempt in the face of the court" situation;
    2. endeavouring improperly to influence participants in proceedings;
    3. contempt by publication, notably publishing allegations that tend to undermine public confidence in the administration of justice; and publishing material which tends to prejudice the fair trial of a case;
    4. failure to comply with an order of the court or undertaking given to a court – the "disobedience contempt"; and
    5. other forms of interference with the administration of justice, including failing to carry out one's duties as a court officer and taking reprisals on witnesses and court officials on account of what they have said or done in court.
33. The contempt committed in the present case falls into the category of ‘disobedience contempt’, namely a failure to comply with an order of the Court. As the Supreme Court noted in Luguna at [33] “most contempt cases dealt with by the National Court have been category 4, disobedience, cases which tend to be more serious in nature than category 5 cases”.
34. As I have earlier observed I find the ‘disobedience contempt’ here of a particularly serious kind for the reasons earlier discussed, but also by reason of the events of 20 July 2022 where there were threats by the second contemnor to use violence if their demands were not met. But for the applicant’s attempts to de-escalate the situation, it takes no small imagination to understand that someone could have been hurt by the actions of the first and second contemnor that day. Further, it is unchallenged that women and children were present during the incident.
35. Little regard was had by either contemnor to the disruption caused to others and the cost of that disruption, borne elsewhere, by their actions. That cost was not just borne by a foreign international. Any disruption to a major resource project that benefits the country including providing a livelihood for the majority of its work force who are Papua New Guineas, comes at a cost. It was a cost also borne by its employees who were potentially placed in harm’s way on 20 July 2022. It was borne by publicly funded services, such as the police, who were required to be engaged when they could have been deployed elsewhere. It has been borne by this Court, a publicly funded resource, a resource that belongs to the people of Papua New Guinea, whose critical interest is in respect for and maintenance of the rule of law.
36. Further, in terms of the type of punishment metred out by the Courts for “disobedience contempt”, relevantly, as the Supreme Court went on to observe in Kulunga at [34] citing with approval Elias Padura v Stephanie Valikvi (2012) N4894 “it has been customary to punish the disobedience form of contempt with a term of imprisonment.”
37. In that regard the authorities have observed that short, sharp sentences in the range of 10 weeks to 18 months imprisonment has been the norm, as shown by the selection of cases in the following table outlined in the written submissions before me.

PUNISHMENT FOR DISOBEDIENCE CONTEMPT BY INDIVIDUALS

35. Some cases, not categorised as involving a ‘disobedience contempt’, are also worthy of mention. In Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448, whilst neither disobedience contempt nor a category 5 contempt, the contemnor, the Minister for Justice, was convicted of publication of a document that scandalised the Supreme Court, - a category 3 case – and was sentenced to eight (8) months imprisonment.

36. Further, the authorities note a string of cases involving incidents in the precincts of the National Court at Madang: Ian Augerea v David Tigavu (2010) N4188, Ian Augerea v Augustine Koroma (2014) N5475, Ian Augerea v Peter Charles Yama (2014) N5476, Ian Augerea v Hon Anton Yagama MP (2014) N5477. Those were all category 5 cases, in which the punishment took the form of prison sentences of twelve (12) months, (eighteen) 18 months, six (6) months and nine (9) months respectively.

STEP 4: WHAT ARE THE MITIGATING AND AGGRAVATING FACTORS?

38. The mitigating and aggravating factors which ultimately govern the form and extent of the punishment are as follows. Given the findings of the Court on verdict they are factors common to both contemnors, however the Court will focus on the second contemnor given the applicant no longer seeks orders against the now de-registered first contemnor.
39. The mitigating factors are:
    1. Since the incident on 20 July 2022 the second contemnor has not engaged in other contumacious conduct.
    2. Save for his non-attendance at the hearing on 12 June 2025 and failure to file written submissions on behalf of the first contemnor, all of which has been explained to the Court[s satisfaction, the second contemnor has co-operated with this Court in the hearing of this application and the fact the matter was not heard expeditiously was not the result of his actions.
    100. The second contemnor has expressed remorse and respect for the Court and has apologised.
    4. The second contemnor has no prior convictions for contempt or any other offence.
    5. The second contemnor is viewed as a respected member and spokesman of his clan.
40. The aggravating factors are:
    1. The conduct constituting the contempt was blatant and intentional.
    2. The cause of the contemptuous course of conduct was not as a result of a genuine mistake or misunderstanding nor an emergent circumstance that suggested that the second contemnor had no time to pause and reflect on the wisdom of his conduct nor as a result of any perceived threat to the safety and security of the contemnor or a member of the clan – the second contemnor’s motivation was money, financial gain, the conduct one that suggested a sense of entitlement, a preparedness to threaten harm to achieve a desired outcome and lack of respect for the Court whose assistance had been sought.
    100. The effect of the contemptuous course of conduct was interference with the due administration of justice.
    4. The conduct involved the disobedience of a Court order, the contemnors having been warned in clear terms what would happen if they breached the order.
    5. The contemnors conduct involved an attemopt to circumvent the order as the sworn evidence relied upon sought to present their conduct as one not in breach of the Court order because the breach did not occur on clan land, or was undertaken by relatives of the late Moses Peno, or a lack of presence of the second contemnor, circumstances irrelevant to the breach, a fact that each of the contemnors would have well known by reason of the clear terms of the order and the events leading up to and on the day of the 20 July 2022. As the Court found the second contemnor was the invisible and guiding hand, clan members unlikely to act in breach of the Court order without his imprimatur and approval.

STEP 5: WHAT IS THE APPROPRIATE FORM OF PUNISHMENT?

41. The next step to consider is whether the punishment should be imprisonment or the imposition of a fine or an order for costs or a combination of those forms of punishment.
42. Counsel for the applicant submits that the Court should impose a fine of K45,000 with the second contemnor to be imprisoned for twelve (12) months if the fine is not paid. The applicant also seek its costs.
43. In his written submissions Counsel for the second contemnor submits a fine of K1,000 is the appropriate penalty in the circumstances. To suggest that such a penalty would in the circumstances of this case be appropriate or meet the demands of justice is rejected.
44. This is because:
    1. Firstly, it is clear that the list of aggravating factors exceed the mitigating factors by a considerable margin.
    2. Secondly, the contempt is ‘disobedience contempt’, a serious matter which has often involved a penalty of imprisonment for an individual convicted of contempt.
    100. Thirdly, it is no good telling the Court you respect it or you respect the people of Papua New Guinea which the second contemnor has previously told this Court, when the evidence of your actions in attempting to take matters into your own hands says the opposite. Further, any Court which fails to uphold its own orders cannot then complain of a lack of respect for its orders, and any Judge who fails to uphold orders of the Court where she or he is privileged to sit would not, in my respectful view, be meeting their oath of office and constitutional mandate to uphold the law and apply the Constitution.
45. I have determined the appropriate penalty is the imposition of a fine, a costs order and a committal to custody.

STEP 6: WHAT SHOULD THE EXTENT OF THE PUNISHMENT BE?

46. The seriousness of the matter must reflect the high degree of culpability of the second contemnor.
47. Taking into account the serious nature of the contempt as outlined, including its effect on the due administration of justice, and having identified a starting point of K25,000.00 and taking into account the large number of aggravating factors and the fact that the second contemnor took the matter to trial, having pleaded not guilty, I impose a fine of K45,000 payable within one month, in default a term of imprisonment of twelve (12) months.

STEP 7: SHOULD ALL OR PART OF THE PUNISHMENT BE SUSPENDED?

48. Suspending all or part of the fine is an option under Order 14, Rule 49(3) of the National Court Rules.
49. I am not of the view that suspending the fine would serve the purpose of deterrence that imposition of such a substantial fine is designed to achieve. There should be no suspension.
    

COSTS

50. While the fine imposed is substantial I do not consider that a relevant factor in determining there should be no costs order or that it may be oppressive to also order that the second contemnor pay the applicant’s costs.
51. I am not persuaded that an order that each party bear their own costs as sought on behalf of the second contemnor would amount to a sufficient punishment of the second contemnor’s contempt. Unlike the circumstances in Kulumba, for example, where no order for costs was made after the imposition of a substantial fine against each contemnor, the second contemnor did not plead guilty to the charges as did each of the contemnors in that case. The second contemnor chose to take the matter to trial having pleaded not guilty. He did so not once, but twice, the intervening two (2) years not suggesting any pause for reflection on his part in that regard given the strength of the evidence against him and the first contemnor, and his acknowledgment of remorse for his conduct. He did so, acknowledging in the written submissions of Counsel for the second contemnor, that he had defied the Court’s authority, emotions at the time running high. Instead of pleading guilty, throwing himself on the mercy of the Court as evidence of contrition and the remorse he tells the Court he feels, thereby saving the costs of the trial, he engaged a lawyer to represent himself in two trials with no evidence suggesting that he did not have the funds to meet their legal costs and that their work on his behalf had been undertaken on a pro bono basis.
52. On the issue of costs, and informing my discretion, no evidence was advanced or submissions made on his behalf that suggested that there were any ‘without prejudice’ attempts by him to resolve the matter in the intervening period between trials or at all or any offers exchanged that may prove a mitigating factor in the Court’s consideration on costs.
53. The second contemnor should meet the applicant’s costs on party and party basis to be agreed or taxed.
54. I propose to also make an order that the second contemnor’s current lawyers forthwith provide him with written advice of the meaning and effect of the order, the potential consequences if he fails to fully comply and in relation to any failure to meet the terms of the costs order.

ORDERS
(1) The contemnors, having been convicted of contempt of court are punished as follows:

• There be no order against the first contemnor by reason of the applicant not seeking any order by way of penalty.
• With respect to the second contemnor Edward Peno Taja also known as Edward Peno: fine of K45,000.00 (the fine), payable by 12.00 noon on 18 July 2025 (the payment date) to the Registrar of the Court for remittance to Consolidated Revenue, in default 12 months imprisonment.
  

(2) That the matter be adjourned to 18 July 2025 at 2.00pm the second contemnor to attend in person at that time, however in the event that the fine is paid by the payment date then that court date be vacated on Counsel for the applicant and second contemnor jointly notifying chambers in writing that the date is vacated.

(3) The second contemnor meet the applicant’s costs on a party party basis to be agreed or taxed.

(4) That the second contemnor’s lawyer provide an explanation to him before he leaves court today of the meaning and effect of this order.

(5) Time to abridge.
Punishments accordingly
________________________________________________________________
Lawyers for the applicant: Allens
Lawyers for the second contemnor: Parua Lawyers