SC1454

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 118 OF 2014

TZEN PACIFIC LIMITED
Appellant

V

INNOVEST LIMITED
First Respondent

KANAWI POURU
Second Respondent

SERI MITIGE
Third Respondent

YII HII LUK
Fourth Respondent

WALTER LUNGA
Fifth Respondent

GEORGE KAORE
Sixth Respondent

Waigani: Cannings J, Kariko J, Geita J
2015: 28th April, 21st August

PRACTICE AND PROCEDURE – objection to competency of appeal against decision of National Court to discharge contemnors of contempt of court charge – grounds of objection: no right to appeal against an acquittal on a criminal charge; necessity to develop underlying law – whether appeal incompetent.

The respondents to a Supreme Court appeal filed a notice of objection to competency of the appeal. The appeal was against the judgment of the National Court to dismiss a notice of motion seeking punishment of the respondents for contempt of court and to discharge the respondents. The objection to competency was based on two grounds: (1) there can be no appeal against an acquittal in criminal proceedings, and here the respondents were acquitted in criminal proceedings; and (2) it is necessary, in order to develop the underlying law, to dismiss the appeal as incompetent.

Held: 

(1)	Ground 1 was dismissed as, though there is no right of appeal against acquittal in conventional criminal proceedings, which are governed by Division III.3 of the Supreme Court Act, contempt proceedings are unique and are not the type of criminal proceedings governed by Division III.3 of the Supreme Court Act. A right of appeal was available in this case under Division III.2 of the Act, which was properly invoked by the appellant.

(2)	Ground 2 was dismissed as it was not a ground of objection. It was a submission, which was in any event misconceived.

(3)	Both grounds of objection being dismissed, the objection to competency was dismissed. Costs followed the event.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545
Application by Herman Joseph Leahy (2006) SC981
Bishop Bros Engineering Pty Ltd v Ross Bishop (1989) N690
Commissioner General of Internal Revenue v Bougainville Copper Ltd (2008) SC920
Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47
Director of the Serious Fraud Office v O'Brien [2014] AC 1246
Emma Ombu Karakabo v Public Prosecutor (2015) N5909
Geoffrey Vaki v Gari Baki (2014) N5612
In the matter of charges of contempt of court against Alfred Manase, Margareth 
John Kil v The State (1991) SC406
Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112
Lionel Gawi v The State (2006) SC850
Parua & Sam Bonner (2014) SC1394
PNG Coffee Industry Board v Panga Coffee Factory Pty Ltd [1990] PNGLR 363
Public Employees Association of PNG v Napoleon Liosi [1988-89] PNGLR 585
Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206
Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388
Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533
Tzen Pacific Ltd v Innovest Ltd (2014) N5716
21 ILGS Gobe Project Area Incorporated Land Groups v MRDC (2006) N3066

OBJECTION

This was an objection to competency of an appeal against a judgment of the National Court in contempt proceedings.

Counsel

M M Varitimos & P Tabuchi, for the Appellant
I R Shepherd, for the First, Second, Third, Fourth & Fifth Respondents

21st August, 2015

1.	BY THE COURT: The respondents, Innovest Ltd and four others, object to the competency of an appeal filed by the appellant, Tzen Pacific Ltd.

2.	The appeal is against the judgment of the National Court, constituted by Justice Hartshorn, dismissing a motion by the appellant to punish the respondents for contempt of court and to discharge them in relation to a charge of contempt of court.

THE JUDGMENT

3.	The judgment was given on 1 August 2014 in the course of civil proceedings, WS No 1121 of (2010), Tzen Pacific Ltd v Innovest Ltd, in which the appellant, Tzen Pacific, claimed damages against the first respondent, Innovest, for civil wrongs allegedly committed by Innovest in connection with a timber project in West New Britain. An order had been made in those proceedings on 19 November 2010 restraining Innovest from interfering or dealing with another timber company in connection with the timber project.

4.	In 2014 Tzen Pacific commenced contempt proceedings, by notice of motion, against Innovest and the five other respondents to this appeal, alleging that they were each in contempt of the Court by disobeying the order of 19 November 2010. A trial of the contempt of court charges commenced. All respondents (contemnors in the National Court) pleaded not guilty, evidence was presented and submissions were made on behalf of the parties to determine whether the respondents were guilty of contempt. In the course of submissions the respondents argued as a preliminary issue that the motion for punishment for contempt should be dismissed as Tzen Pacific no longer had a personal stake or special interest in the contempt matter (as its timber licence had been cancelled) and that they (the respondents) should be discharged.

5.	The primary Judge upheld that argument dismissed the motion for contempt and discharged the respondents (Tzen Pacific Ltd v Innovest Ltd (2014) N5716).

THE APPEAL

6.	Tzen Pacific filed a notice of appeal. The grounds of appeal include that the primary Judge erred by not being satisfied that Tzen Pacific had a personal stake or special interest in the contempt proceedings.

THE OBJECTION

7.	The first five respondents filed, under Order 7, Rule 15 of the Supreme Court Rules, a notice of objection to competency of the appeal. The sixth respondent, George Kaore, has not objected to competency of the appeal and has taken no part in the hearing of the objection.

8.	The respondents' objection is based on two grounds:

(1) there can be no appeal against an acquittal in criminal proceedings and in this case the respondents were acquitted of the criminal charge of contempt of court; and

(2) it is necessary, in order to develop the underlying law, to dismiss the appeal as incompetent.

GROUND 1: NO APPEAL AGAINST ACQUITTAL IN CRIMINAL PROCEEDINGS

9.	This ground is set out as follows:

1.1	The judgment which is appealed from, given on 1 August 2014 at Waigani in National Court proceedings WS 1121 of 2010, was to dismiss the Appellant/Plaintiff's Amended Notice of Motion filed 14 November 2013 in which the Appellant/Plaintiff sought pursuant to Order 14 Rule 42 of the National Court Rules orders to punish each of the Respondents for contempt of National Court orders made 19 November 2010.

1.2	The proceedings for contempt are criminal in nature and the Court in dealing with such proceedings must be satisfied beyond reasonable doubt that the elements of the offence had been proven.

1.3	The rights of appeal in criminal proceedings derive from Section 22 of the Supreme Court Act. Those provisions do not provide for an appeal against an acquittal of a criminal charge.

1.4	For this reason, the notice of appeal in this instance is incompetent, irrespective of its merits and should be dismissed.

Respondents' arguments

10.	Ground 1 of the respondents' objection is based on these propositions:

•	contempt of court proceedings are criminal in nature as they involve a charge being laid against a person, described as a contemnor, and the need for the court to be satisfied of the elements of the offence beyond reasonable doubt, and a verdict being entered, and in the case of a guilty verdict, the availability of criminal sanctions, including a fine or a term of imprisonment;

•	rights of appeal in criminal proceedings derive from Section 22 of the Supreme Court Act, which does not provide for an appeal against acquittal;

•	the respondents were acquitted of a charge of contempt of court and there is no avenue of appeal against it;

•	therefore the appeal is incompetent as the appellant has sought to invoke appellate jurisdiction of the Supreme Court that it does not have.

Appellant's arguments

11.	The appellant counters those propositions by arguing:

•	not all contempt of court proceedings are criminal in nature as the courts recognise a distinction between civil contempt and criminal contempt, and a civil contempt of court will be committed when a person is guilty of deliberate disobedience of an order of the court;

•	in this case the respondents were charged with a civil contempt (for disobeying the order of 19 November 2010), so the contempt proceedings were civil in nature;

•	rights of appeal in civil contempt proceedings are not subject to Section 22 of the Supreme Court Act;

•	the jurisdictional basis for the present appeal lies in Section 4 of the Supreme Court Act;

•	the respondents were not acquitted, they were discharged upon the dismissal of the motion, without the court making any finding on the merits of the charge of contempt of court;

•	the appeal is not incompetent as the appellant has properly invoked the appellate jurisdiction of the Supreme Court.

Issues

12.	The competing arguments of the parties give rise to these issues:

(a)	Is there a distinction between civil and criminal contempt?

(b)	Were the respondents charged with a civil contempt?

(c)	Is it important to draw a distinction between the two types of contempt?

(d)	Are contempt proceedings properly regarded as proceedings of a criminal nature?

(e)	Are appeals against judgments in contempt proceedings governed by Division III.3 of the Supreme Court Act?

(f)	Was the appeal in this case governed by Division III.3 of the Supreme Court Act?

(g)	Were the respondents acquitted of the charge of contempt?

(h)	Did the appellant properly invoke the right to appeal against the judgment of the National Court?

(i)	Is ground 1 of the objection upheld?

(a)	Is there a distinction between civil and criminal contempt?

13.	Yes. We agree with the appellant that there is a distinction between civil contempt and criminal contempt. Civil contempt is a term used to describe conduct that is not in itself a crime, such as disobedience of a court order, but which is nevertheless punishable as a crime so that the courts are able to ensure that their orders are enforced. Criminal contempt refers to all other types of conduct that interfere with the due administration of justice (Andrew Kwimberi v The State (1998) SC545, Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388, Andrew Kwimberi v The State (1998) SC545).

14.	This distinction has been referred to in cases such as Bishop Bros Engineering Pty Ltd v Ross Bishop (1989) N690, Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47, 21 ILGS Gobe Project Area Incorporated Land Groups v MRDC (2006) N3066 and Geoffrey Vaki v Gari Baki (2014) N5612. The House of Lords recently extensively discussed the distinction between civil contempt and criminal contempt in Director of the Serious Fraud Office v O'Brien [2014] AC 1246.

(b)	Were the respondents charged with a civil contempt?

15.	Yes. We agree with the appellant that the respondents were charged with a civil contempt for disobeying the order of the National Court of 19 November 2010. However, the categorisation of the charge as a civil contempt does not determine the question of whether there was a right to appeal against the judgment of the National Court of 1 August 2014.

(c)	Is it important to draw a distinction between the two types of contempt?

16.	In practical terms, no. We endorse the sentiments of Barnett J (with whom Konilio J agreed) in Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533. The Supreme Court was faced with an argument that the appellant, who had been convicted by the National Court of a civil contempt for disobeying a court order, was not entitled to the protections of the law made available by Section 37 of the Constitution, especially to persons "charged with offences", as he had only been charged with and convicted of a civil contempt, not a criminal contempt. His Honour stated:

To hold that the archaic and dwindling distinctions between "criminal", "quasi criminal" and "civil" contempt could justify withholding the full protection of the law from persons facing penal charges would be to permit an outmoded legal technicality to deprive a person of a fundamental right to protection of the law in cases where the court itself could be considered as an aggrieved party.

17.	Categorising the type of contempt with which a person is charged has no effect on the procedures to be followed by the court hearing the charge or the rights of the person charged or on the penalties available in the event of a conviction. Nor is it relevant to the question of whether there is a right of appeal against an acquittal on a charge of contempt.

(d)	Are contempt of court proceedings properly regarded as proceedings of a criminal nature?

18.	Yes. We agree with the respondents that generally speaking contempt of court proceedings should be regarded as proceedings of a criminal nature, as distinct from civil proceedings. We say this, for four reasons.

(i)	The Constitution recognises contempt of court as a criminal offence

Section 37(2) states:

Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

19.	The term "offence" in Section 37 refers to criminal offences, as distinct from disciplinary offences (Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206, Public Employees Association of PNG v Napoleon Liosi [1988-89] PNGLR 585).

(ii)	A person charged with contempt of court is entitled to the same protection of the law available to persons charged with any other criminal offence

20.	This is the principle emerging from Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533. A person charged with contempt of court has, in addition to the general right of all persons to the full protection of the law under Section 37(1) of the Constitution, other particular rights intended to be fully available to all persons charged with offences. Those rights are conferred by the following provisions of Section 37 of the Constitution:

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) A person charged with an offence—

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and

(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and

(c) shall be given adequate time and facilities for the preparation of his defence; and

(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and

(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

(5) Except with his own consent, the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

(6) Nothing in Subsection (4)(f) invalidates a law which imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of a person charged with an offence are to be paid their expenses out of public funds.

(7) No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

(8) No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

(9) No person shall be tried for an offence for which he has been pardoned.

(10) No person shall be compelled in the trial of an offence to be a witness against himself.

(12) Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

(14) In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

(15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.

(16) No person shall be deprived by law of a right of appeal against his conviction or sentence by any court that existed at the time of the conviction or sentence, as the case may be.

(17) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

(18) Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(19) Persons under voting age who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age.

(21) Nothing in this section … (a) derogates Division III.4 (principles of natural justice).

(iii)	A finding of guilt makes the contemnor liable to criminal penalties

21.	In PNG the offence of contempt of court is not, consistently with Section 37(2) of the Constitution, defined by a written law. However the sanctions able to be imposed are defined by a written law. Order 14, Rule 49 (punishment) of the National Court Rules states:

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

(2) Where the contemnor is a corporation the Court may punish contempt by sequestration or fine or both.

(3) 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 may approve for good behaviour and performs the terms of the security.

22.	It should be noted that there are no maximum penalties provided for contempt of court (In the matter of charges of contempt of court against Alfred Manase, Margareth Parua & Sam Bonner (2014) SC1394).

(iv)	The practice of the National Court and the Supreme Court has been to apply rules of criminal practice and procedure in contempt proceedings

23.	The conventional and proper way of conducting contempt of court proceeding is to conduct it as if it were a criminal trial (PNG Coffee Industry Board v Panga Coffee Factory Pty Ltd [1990] PNGLR 363). This means that the court will apply standard rules of criminal practice and procedure. Thus:

•	the charge will be explained to the contemnor, who will be arraigned and asked to enter a plea of guilty or not guilty;

•	the court will apply the criminal standard of proof, i.e. the party prosecuting the charge bears the onus of proving the elements of the offence beyond reasonable doubt;

•	if the contemnor is found guilty, the court will administer the allocutus so that the convicted person can address the court on the question of an appropriate punishment.

(e)	Are appeals against judgments in contempt proceedings governed by Division III.3 of the Supreme Court Act? 

24.	This is the critical issue. Division III.3 is entitled "Additional Provisions Relating to Appeals in Criminal Cases". It contains Section 22 (criminal appeals), which regulates appeals by persons convicted of offences by the National Court against their conviction and sentence. This is the provision relied on by the respondents to argue that there is no right of appeal against an acquittal in criminal proceedings.

25.	We agree that there can be no appeal against the judgment of the National Court to acquit a person of any charge in "criminal proceedings", subject to this important exception: Section 22 does not apply to contempt of court proceedings. We have drawn that conclusion because of the statutory scheme of the Supreme Court Act and the unique nature of contempt proceedings.

26.	Part III of the Supreme Court Act is headed "Appeals to the Supreme Court". It consists of three divisions:

•	Division III.1 (general) consists of Sections 4 to 12, which apply to all appeals, whether in civil cases or criminal cases.

•	Division III.2 (additional provisions relating to appeals in civil cases) consists of Sections 13 to 19. Section 13 states:

This Division applies to and in relation to proceedings other than criminal proceedings.

•	Division III.3 (additional provisions relating to appeals in criminal cases), consists of Sections 20 to 32. Section 20 (application of division 3) states:

This Division applies to and in relation to criminal proceedings.

27.	The starting point for a consideration of whether in a particular case a person aggrieved by a judgment of the National Court has a right of appeal or a right to apply for leave to appeal, is Section 4(1) (right of appeal from National Court), which states:

An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court.

28.	The appellant argues that this provision confers jurisdiction on the Supreme Court to hear an appeal against any judgment of the National Court. 

29.	That is not correct. In Application by Herman Joseph Leahy (2006) SC981 the Supreme Court rejected a similar argument, pointing out that the key words in Section 4(1) are "in accordance with this Act".

30.	No person has the inherent right to appeal against a judgment of the National Court. Appeals are the creature of statute: the right to appeal or seek leave to appeal must be found in a written law, which might regulate the right of appeal by imposing time limits or other conditions (Commissioner General of Internal Revenue v Bougainville Copper Ltd (2008) SC920). This is so, even in the case of persons convicted of a criminal offence who have the right under Section 37(15) of the Constitution to have their conviction and sentence "reviewed by a higher court or tribunal according to law". The key words are "according to law". An appeal can be subject to a requirement that the leave of the Court must be obtained (Lionel Gawi v The State (2006) SC850).

31.	To ascertain in a particular case whether there is a right of appeal (or a right to seek leave to appeal) against a judgment of the National Court, the right must be found in some specific provision of the Supreme Court Act. Whether such a right exists depends on whether the judgment of the National Court falls within Division III.3 (criminal proceedings) or Division III.2 (proceedings other than criminal proceedings).

32.	The Supreme Court Act does not provide a definition of "criminal proceedings", so it is necessary to consider the provisions of Division III.3 to appreciate the types of criminal proceedings to which it applies. There are four provisions that we highlight: Sections 21, 24, 26 and 31.

33.	Section 21 (reservation of points of law) provides for the National Court in a criminal trial to reserve a question of law for the consideration of the Supreme Court. It states:

When any person is indicted, the National Court shall, on the application of counsel for the accused person made before verdict, and may in its discretion, before or after verdict without such application, reserve any question of law that arises on the trial for the consideration of the Supreme Court.

34.	The power of reservation only arises when a person "is indicted". Presentation of an indictment either under Section 525 or 526 of the Criminal Code is the conventional mode of commencement of a criminal trial. By contrast a contempt of court proceeding is commenced under Division 14.6 (contempt of court) of the National Court Rules, by first filing a notice of motion seeking punishment for contempt and then presenting a statement of charge. An indictment is not presented and the contemnor is not indicted.

35.	Section 24 (appeal by Public Prosecutor against sentence) is the only provision of Division III.3 dealing with appeals by the prosecution against sentence. It states:

(1) In this section "sentence" includes any order made on conviction with reference to the person convicted or his property.

(2) The Public Prosecutor may appeal to the Supreme Court against any decision of the National Court, whether on appeal or sitting as a court of first instance, as to sentence, and the Supreme Court may in its discretion vary the sentence and impose such sentence as it thinks proper.

36.	The right of appeal against sentence is conferred only on the Public Prosecutor. It would seem that if contempt of court proceedings were brought within Division III.3, the prosecuting party aggrieved by the punishment imposed on the contemnor would have no right of appeal.

37.	Section 26 (reference of point of law following acquittal on indictment) allows the Principal Legal Adviser to refer a point of law to the Supreme Court in cases where a person is acquitted after being tried on an indictment. It states:

(1) Where a person tried on indictment has been acquitted whether in respect of the whole or part of the indictment and the Principal Legal Adviser desires the opinion of the Supreme Court on a point of law that has arisen in the case—

(a) the Principal Legal Adviser may, within 40 days after the acquittal, refer the point to the Supreme Court; and

(b) the Court shall, in accordance with this section, consider the point and give its opinion on it.

(2) For the purpose of its consideration of a point referred to it under this section, the Supreme Court shall hear argument—

(a) by, or by counsel on behalf of, the Principal Legal Adviser; and

(b) if the acquitted person desires to present any argument to the Court, by counsel on his behalf or, with the leave of the Court, by the acquitted person himself; and

(c) by, or by counsel on behalf of—

(i) the Public Prosecutor; and

(ii) the State Solicitor,

or either of them, if they desire to present any argument to the Court.

(3) No report of proceedings under this section shall be published that discloses the name or identity of any person charged at the trial or affected by the decision given at the trial.

(4) Any publication in contravention of Subsection (3) is punishable as contempt of the Supreme Court.

(5) A reference under this section does not affect the trial in relation to which the reference is made or any acquittal in that trial.

38.	This provision clearly has no application to the trial of a person for contempt of court.

39.	Section 31 (costs of appeal) provides that no costs are to be awarded in a criminal appeal. It states:

(1) On the hearing and determination of an appeal, no costs shall be allowed to either side.

(2) The expenses—

(a) of any witness attending on the order of the Supreme Court or examined in any proceedings incidental to the appeal; and

(b) of the appearance of an appellant, when in custody, on the hearing of his appeal or on any proceedings preliminary or incidental to the appeal; and

(c) of and incidental to—

(i) any examination of witnesses conducted by any person appointed by the Court for the purpose; or

(ii) any reference of a question to a referee appointed by the Court under Section 8(1) (d), 

shall be paid out of the Consolidated Revenue Fund to an amount allowed by the Court, subject to any provision as to rates and scales of payment made by the Rules of Court.

40.	Section 31 is consistent with the general rule that in a criminal trial the National Court only has power to award costs in the circumstances prescribed by Section 612 (costs of prosecution in certain cases) and Section 618 (costs of defence) of the Criminal Code. Both of those provisions fall within Division VIII.11 (information by private persons for indictable offences: ex officio indictments) of the Criminal Code. This means that the National Court only has power to award costs of a trial if the case has been commenced by a private prosecutor with the leave of the National Court under Section 616 (information by leave of the court by private prosecutors). (See John Kil v The State (1991) SC406 and Emma Ombu Karakabo v Public Prosecutor (2015) N5909.)

41.	By contrast, there is no restriction on the awarding of costs in contempt proceedings in the National Court. Contempt proceedings are commenced under and conducted in accordance with the National Court Rules. It is a common and proper practice for the National Court to award costs to the successful party in a contempt proceeding.

Conclusion: are contempt proceedings "criminal proceedings" for the purposes of Division III.3?

42.	No. Though contempt proceedings are proceedings of a criminal nature, they should not be regarded as "criminal proceedings" for the purpose of Division III.3, for the following reasons:

•	the offence of contempt is unique as it is not defined by a written law;

•	contempt proceedings are different to conventional National Court criminal proceedings as they are commenced, not by presentation of an indictment but by filing a notice of motion and presenting a statement of charge, under the National Court Rules, and they can be commenced without the leave of the Public Prosecutor or the National Court (Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112);

•	there are four provisions of Division III.3 – Sections 21, 24, 26 and 31 – that make it inappropriate to subject an appeal against a judgment of the National Court in contempt proceedings to the requirements of that Division;

•	"criminal proceedings", for the purposes of the Supreme Court Act, are those proceedings commenced by indictment by the Public Prosecutor or with the leave of the National Court under the Criminal Code or by some other originating process with the leave of the Public Prosecutor.

43.	We conclude that appeals against judgments in contempt proceedings are not governed by Division III.3 of the Supreme Court Act.

(f)	Was the appeal in this case governed by Division III.3 of the Supreme Court Act? 

44.	No. Our opinion, stated above, that appeals against judgments in contempt proceedings are not governed by Division III.3, resolves this issue.

(g)	Were the respondents acquitted of the charge of contempt?

45.	No. The primary Judge upheld the respondents' preliminary argument that the appellant lacked standing to prosecute them for contempt and dismissed the motion seeking their punishment and discharged them. His Honour did not acquit the respondents. The term "acquittal" should only be used where a person has faced trial and the court, having examined all the evidence, enters a verdict of not guilty.

46.	We point out that if we were satisfied that the respondents had been acquitted; this would make no difference to the question of whether the present appeal was competent. An appeal against acquittal of a contemnor in contempt of court proceedings commenced under the National Court Rules is not prohibited by the Supreme Court Act. Such an appeal is available under Division III.2 of the Act.

(h)	Did the appellant properly invoke the right to appeal against the judgment of the National Court? 

47.	Yes. As the judgment appealed against was not made in the type of criminal proceedings governed by Division III.3 of the Supreme Court Act, appeals against that judgment are governed by Division III.2, in particular by Section 14(1) (civil appeals to the Supreme Court), which states:

Subject to this section, an appeal lies to the Supreme Court from the National Court—

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

48.	The notice of appeal raises a number of questions of law and therefore leave was not required.

(i)	Is ground 1 of the objection upheld?

49.	No. Ground 1 is dismissed as there was a right of appeal against the judgment of the National Court, which has been properly invoked by the appellant.

GROUND 2: NEED TO DEVELOP UNDERLYING LAW

50.	This ground is set out as follows:

Sections 59 and 60 of the Constitution refer to the principles of natural justice being the rules of the underlying law and the development of those rules where it is appropriate to the circumstances. Schedule 2.3 of the Constitution expressly authorises both the Supreme Court and the National Court to develop the underlying law. As there are no specific provisions for an appeal against an order dismissing a charge of contempt and rights of appeal in criminal proceedings deriving from Section 22 of the Supreme Court Act make no provision for an appeal against an acquittal of a criminal charge, this is an appropriate case for the Supreme Court to develop the underlying law by dismissing the Appeal as incompetent.

51.	This is not a proper ground of objection. It is a submission that the Court should develop the underlying law. However, the submission is misconceived. There is no need to develop any underlying law. All the Court has been required to do is interpret and apply the Supreme Court Act. Ground 2 is dismissed.

CONCLUSION

52.	We have dismissed both grounds of objection. The objection to competency of the appeal must be dismissed. Costs will follow the event.

ORDER

(1)	The objection to competency is dismissed.

(2)	The first to fifth respondents shall pay the appellant's costs of these proceedings on a party-party basis, to be taxed if not agreed.

(3)	The appellant shall henceforth prosecute the appeal in accordance with the Supreme Court Rules 2012.

Judgment accordingly.

________________________________________________________________
Young & Williams Lawyers : Lawyers for the appellant 
Ashurst Lawyers : Lawyers for the 1st to 5th respondents