SC1367
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRev 56 of 2013

APPLICATION FOR REVIEW PURSUANT TO SECTION 155(2)(b) CONSTITUTION

BETWEEN:

RENDLE RIMUA, 
the Secretary, Department of Petroleum and Energy
First Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Applicant

AND:

JOHN SIUNE
Respondent

Waigani: Gavara Nanu, Hartshorn and
: Murray JJ
2013: December 19th,
2014: March 28th

Section 155(2)(b) Constitution Review

Cases cited:

Avia Aihi v. The State [1981] PNGLR 81 

Counsel:

Ms. A. Kimbu, for the Applicants
Mr. Napu, for the Respondent

28th March, 2014

1. BY THE COURT: Mr. Rendle Rimua was found guilty of contempt of court in the National Court on 28th March 2013 (verdict). He and the State were granted leave by the Supreme Court to review the verdict pursuant to s. 155 (2) (b) Constitution on 20th September 2013. This is our decision on the application to review the verdict.

Facts

2. It is convenient to set out that part of the decision of the trial judge as to the facts:

"The plaintiff John Siune has charged the first defendant, Rendle Rimua, with contempt of court and this is the court's ruling – the verdict – on whether the first defendant (hereafter referred to as 'the contemnor', being a person charged with contempt) is guilty.

2. The contempt charge arises out of judicial review proceedings the plaintiff, an officer of the Department of Petroleum and Energy, commenced against the contemnor, the Head of that Department. In 2007 the contemnor dismissed the plaintiff from the Public Service after finding him guilty of a disciplinary offence regarding unauthorised use of a departmental vehicle. The plaintiff sought review of his dismissal by the Public Services Commission (PSC), which inquired into the matter and found in the plaintiff's favour on the ground that the disciplinary charges were defective and the plaintiff had been denied natural justice. The PSC on 7 July 2010 decided that the plaintiff's dismissal was annulled and he was to be reinstated and paid all lost salaries and entitlements. The contemnor failed to comply with the PSC decision, and it was his failure to comply which became the subject of the judicial review proceedings.

3. The judicial review proceedings were the subject of two substantive orders of the National Court. First on 22 December 2011 Manuhu J ordered that:

 1 The defendants shall reinstate the plaintiff to his substantive position with the Department of Petroleum and Energy forthwith. 

 2 The defendants shall compute and pay to the plaintiff all of his lost salaries and entitlements forthwith.

4. For some reason, it is not clear why, that order was not complied with and this led the plaintiff to bring an initial charge of contempt against the contemnor. The initial charge was set down for hearing before Sawong J but for some reason it did not proceed. Instead his Honour on 23 May 2012 made the following order:

 1 Contempt proceedings against the first defendant is vacated pending compliance of substantive order of Court dated 22 December 2011.

 2 All unpaid entitlements due and owing to the plaintiff shall be calculated and paid to him by 12.00 pm, 25 May 2012, by the first defendant.

 3 The first defendant shall reinstate the plaintiff by close of business 24 May 2012.

5. It is that order of 23 May 2012 which is the subject of the charge of contempt. The contemnor reinstated the plaintiff the next day but did not pay any unpaid entitlements to him within the two-day period set by the court. Instead he paid the plaintiff in two instalments, the first on 1 June 2012 in the sum of K57,150.51, and the second on 22 June 2012 in the sum of K71,850.31; the total sum being K129,000.82. The plaintiff claims that he has been underpaid. He has put to the contemnor that he is still owed K243,903.04 comprised of special domestic market allowance, incidentals allowances and other benefits to which he is entitled. The contemnor's position has been and remains that those are discretionary payments and it is not within his power to pay them as the plaintiff's eligibility is determined by the Department of Personnel Management and subject to supervision by the Salaries and Conditions Monitoring Committee.

6. Aggrieved by the contemnor's stance, the plaintiff has charged him with contempt and applied by notice of motion for orders that he be punished for disobeying the order of 23 May 2012. The contemnor pleaded not guilty and the matter proceeded to trial."

Section 155 (2) (b) Constitution

3. Section 155 (2) (b) Constitution provides that this Court has an inherent power to review all judicial acts of the National Court. The relevant legal principles were pronounced in Avia Aihi v. The State [1981] PNGLR 81. These equate essentially to the Court exercising its discretionary power where it is in the interests of justice to do so. As leave has been granted we proceed to consider this application to review.

4. Counsel for the applicants submits that amongst others, although the trial judge correctly stated that for a contemnor to be found guilty of disobedience contempt, the court must be satisfied beyond reasonable doubt of the three elements of the offence which are that the order was clear, it was properly served and there was a deliberate failure to comply, in finding Mr. Rimua guilty the trial judge fell into error as:

a) he had already found that part of Order No. 2 of the Court Order made on 23rd May 2012, in respect of which Mr. Rimua was subsequently found guilty of contempt of court (disobeyed order), was not clear.

b) that part of Order No. 2 of the disobeyed order that the trial judge found was clear, "that the plaintiff's unpaid entitlements had to be calculated and paid within two days", was not a matter of complaint in the Amended Statement of Charge. 

c) that part of Order No. 2 of the disobeyed order that the trial judge had found was clear, was also unclear and ambiguous.

d) there was insufficient evidence to find a deliberate failure to comply by Mr. Rimua with the disobeyed order.

5. Counsel for the respondent submitted in essence that the trial judge did not fall into error in finding Mr. Rimua guilty of contempt of court for the reasons given by the trial judge.

6. We consider Order No. 2 of the disobeyed order first. It is as follows:

"All unpaid entitlements due and owing to the plaintiff shall be calculated and paid to him by 12.00pm, 25 May 2012, by the first defendant." 

7. The trial judge found that part of Order No. 2 was clear. That part is stated by the trial judge as, "… that the plaintiff's unpaid entitlements had to be calculated and paid within two days." The trial judge then finds that the other part of Order No. 2 is not clear and unambiguous as no monetary amount of unpaid entitlements was fixed and no method of calculation was set and the basis of calculation is contentious.

8. This begs the question of how the plaintiff's unpaid entitlements are to be calculated and paid within two days if no amount is fixed, no method of calculation was set and the basis of calculation is contentious It is not clear how the unpaid entitlements are to be calculated in such circumstances. We also note that at the beginning of Order No. 2, it commences with, "All unpaid entitlements…" as distinct from 'unpaid entitlements'. In our view all of Order No. 2 of the disobeyed order is unclear and ambiguous.

9. In our respectful review, the trial judge fell into error in finding that part of Order No. 2 was clear and was proved beyond reasonable doubt. As we are satisfied that one of the three elements of the offence of disobedience contempt has not been proven beyond reasonable doubt, the application to review should be upheld. Given this finding it is not necessary for us to consider the other submissions of counsel.

Orders

10. The Orders of the Court are: 

a) The decision of the trial judge of 28th March 2013 in OS (JR) no. 203 of 2011 at Waigani which found the First Applicant guilty of contempt of court orders of 23rd May 2012 is quashed.

b) The First Applicant is found not guilty of contempt of court orders of 23rd May 2012.

c) The decision and orders of the trial judge of 31st July 2013 as to sentence are quashed and the First Applicant shall be refunded his bail money in the sum of K 500.00.

d) The Respondent shall refund to the First Applicant the sum of K10,000.00 that was paid to the Respondent by the First Applicant pursuant to the Court Orders of 31st July 2013.

e) The costs of the Applicants of and incidental to this application shall be paid by the Respondent. 

_____________________________________________________________
Greg Manda Lawyers: Lawyers for the Applicants 
Napu & Company Lawyers: Lawyers for the Respondent