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Gaman Holdings Pty Ltd v Labu Holdings Pty Ltd [2000] PGNC 47; N2016 (8 September 2000)

N2016

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 402 OF 1998

BETWEEN:

GAMAN HOLDINGS PTY LTD
-Plaintiff-

AND:

LABU HOLDINGS PTY LTD
-Defendant-

Lae: Injia, J.
2000: September 6, 8

Cases cited in the judgment:
Ditford v. Brown (1990) 19 NSWLR 49
Ditford v. Katz (CCA (NSW) Full Court, 8 July 1991 (Unreported))
Rex v. Weisz & Anor; Ex parte Hector McDonald Ltd [1951] 2 K.B. 611

Counsel:
R. Saulep for the plaintiff
S. Tedor for the defendant

8 September 2000

INJIA, J.: This is the plaintiff’s notice of motion for punishment for contempt of various contemnors filed pursuant to Order 14 r 42(1) of the National Court Rules. The relevant parts of the Notice of Motion reads:

Pursuant to Clause 1(a) of the Notice of Motion, supra, the contempt proceedings arise out of the contemnor’s alleged breach of Order 3 of Sheehan J’s order of 7th April 1999. It is useful to set out in full Sheehan J’s order of 7th April 1999. It reads:

The Notice of Motion which is supported by various affidavits were personally served on the alleged contemnors.

At the hearing of the Notice of Motion, the competency of the contempt proceedings arose for determination. And it relates to the requirements of Order 14 rule 43, namely whether the plaintiff had filed a separate statement of charge or "subscribed" the statement of charge on the Notice of Motion. Order 14 rule 43 provides:

Rules 42(1) - 45 inclusive are expressed in mandatory terms by the use of the word "shall". Rule 42(1) provides for a party to a proceeding to file a Notice of Motion or Originating Summons for punishment for contempt of Court in relation to contempt committed in connection with proceedings in the Court. Where a Notice of Motion is filed, rule 43 requires a "Statement of charge" to be subscribed on the Notice of Motion or to be filed separately. Rule 44 requires affidavits to be filed in support of "the charge". Rule 45 requires personal service on the alleged contemnors of the Notice of Motion (filed under rule 42(1)), the statement of charge (filed under rule 43) and affidavits (filed under rule 44).

It is clear from rules 42(1) - 45 inclusive that a "statement of charge" is different from a Notice of Motion and affidavits. The "Statement of charge" must either be filed as a separate document or "subscribed" to the Notice of Motion. The word "subscribe" means "to write under" the Notice of Motion: Osborne’s Concise Law Dictionary, 6th Edn. Rule 43 defines what a "statement of charge" is when it says it "is a statement specifying the contempt of which the contemnor is alleged to be guilty".

Mr. Saulep of counsel for the plaintiff concedes that a "Statement of charge" is a separate document from a Notice of Motion. He also concedes that his client did not file a separate "Statement of charge" document. So no issue arises in respect of that part of the requirement. He also accepts that a statement of charge can also be "subscribed to the Notice of Motion". He submits that in the present matter, the "Statement of charge" was "subscribed" to the Notice of Motion. He submits the latter part of Clause 1(a) in the Notice of Motion sufficiently subscribes the "Statement of charge" because it says order No. 3 of Sheehan J is alleged to have been breached by the contemnors whose names are specified. Mr. Tedor of counsel for the defendant submitted that if the "Statement of charge" is subscribed to the Notice of Motion, then it must be expressly and specifically endorsed and enumerated as "Statement of charge" and that has not been done. Therefore, he submits, the proceedings are incompetent and should be struck out. These arguments raise the question: What is the form and content of a "Statement of charge?"

The National Court Rules do not provide a pro forma of a "Statement of Charge" which is to be "subscribed" to the Notice of Motion. Neither counsel was able to cite to me any local or overseas precedent on the issue of what form and content a "Statement of charge" "subscribed" on a Notice of Motion should take. I am unable to discover any local cases decided on this point.

One might say rule 43 contains a clear definition of what a "Statement of charge" should contain. But when one looks at that definition, it might appear simple at first glance, but it is not as simple as it appears. For instance, what is meant by a "Statement" in itself begs the question: What does it mean?

Some assistance may be gained from the New South Wales Supreme Court Rules from which our own rules derive their origin, and from the English High Court Rules upon which the New South Wales rules are based. In New South Wales, the practice has not been doubted that a Statement of Charge is a statement of alleged facts in clear and precise terms and with sufficient particularity which should sufficiently inform the alleged contemnor of the precise nature of the contempt alleged against him: see Ditford v. Katz (CCA (NSW) Full Court, 8 July 1991 (Unreported) and Ditford v. Brown (1990) 19 NSWLR 49.

In the United Kingdom the practice is a little different to the New South Wales practice because leave to apply for commitment for contempt is a pre-requisite to contempt proceedings. The requirement is for a "Statement of facts" to be filed separately in support of the application for leave which is made ex parte: see Rex v. Weisz & Anor Ex parte Hector McDonald Ltd [1951] 2 K.B. 611. The Statement of facts sets out the name, description and address of the applicant; the name, description and address of the alleged contemnor and the grounds on which the contemnors are alleged to be guilty of contempt. Once leave is granted, the Notice of Motion together with a copy of the Statement of facts used in the leave application and affidavits are required to be personally served on the alleged contemnors: see Halsbury's Laws of England, 4th Edn.; Volume 9, para 92.

I would think the procedure for leave application in the United Kingdom would be similar to our own judicial review judicial review procedure under Order 16 of the National Court Rules which I believe is adopted from the United Kingdom High Court Rules. Order 16 rule 3 provides for application for leave for judicial review made ex parte, which is supported by a "Statement in Support of application for leave" which sets out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and an affidavit verifying the facts relied on.

In my view the phrase "a statement specifying the contempt of which the contemnor is alleged to be guilty" in rule 43 should be given its broad meaning. It is to mean, a clear statement of relevant facts alleged against the contemnor by the applicant and the grounds constituting the alleged contempt. The statement should clearly be entitled "Statement of charge". It should state the full name, description and address of the applicant, the full name description and address of the alleged contemnors, and the grounds upon which the contemnor is alleged to be guilty. If a breach of an earlier Court order is relied upon as constituting the alleged contempt, it should set out clearly and precisely the terms of that Court order and the relevant facts alleged as constituting a breach of that order. The purpose of the "Statement of charge" is to clearly and sufficiently inform the alleged contemnor and the Court, at first glance of the "Statement of charge" document, of what is alleged against the contemnor as constituting the contempt. Any "Statement of charge" which falls short of these requirements should be struck down as incompetent.

The "Statement of charge" is no ordinary statement; it is a "charge" document, because the contempt procedure has penal outcomes and could well result in deprivation of personal liberty of the alleged contemnor if found guilty. It is for this reason that procedural rules for instituting contempt proceedings are in explicit and mandatory terms.

In the present case, the purported "Statement of Charge" contained in Clause 1(a) of the Notice of Motion, and in particular the latter part of Clause 1(a), is badly and carelessly worded. First of all, Clause 1(a) is not described as a "Statement of Charge." Secondly, whilst the names of the alleged contemnors and their title description are provided, the description of their corporate or other status and a description of their position in the specified company is not shown. Likewise the applicant’s address is not known. Thirdly, there is a bare statement of alleged breach of Clause 3 order Sheehan J’s of 7 April 1999, the particulars of which order are not stated. Fourthly, it does not say which Court made the order because taking judicial Notice of Sheehan J’s position, he is a judge of two Courts, a judge of the National Court and Supreme Court as well. Fifthly, and the most important of all, order 3 of Sheehan J’s order made on 7th April 1999 relates to award of costs to the plaintiff, but that is not what all the affidavits are alleging the contemnors failed to do. The records show Sheehan J made several injunctive orders, one on 7/8/98, one on 24/3/99 and then one on 7/4/99. For the plaintiff’s counsel to submit to the Court that the Notice of Motion speaks for itself because it alleges the contemnors failed to obey Court order of Sheehan J of the 7/4/99 and therefore they are guilty of contempt is a misconception.

For these reasons, I am not satisfied that the Notice of Motion for Contempt meets the mandatory requirements of rule 43. I strike out the Motion as being incompetent. With the motion should also go the affidavits filed in support. I shall now hear both counsels as to costs of the motion.
__________________________________________________________

Lawyer for the plaintiff : Saulep Lawyers
Lawyer for the defendant : Tedor & Associates