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Nonga Hospital Board v Watt [2006] PGNC 49; N3055 (24 March 2006)

N3055

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 963 OF 2005

BETWEEN:

NONGA HOSPITAL BOARD
Plaintiff

AND:

SR. THEONILA WATT
SR. BENEDICTA KAKAO
SR. FELISITHAS WOWO
SR. CLARA RADING and
SR. TAMA KALAMA for and on Behalf of the EAST NEW BRITAIN BRANCH OF THE PAPUA NEW GUINEA NURSES ASSOCIATION.
Defendants

KOKOPO: Lenalia, J.
2006: 17 and 24th March

PRACTICE & PROCEDURE – Motion – Application by – Contempt of Court – Application for - Preliminary issues – Locus standi – Lack of – Statement of Charge – Invalid Application.

Cases Cited:
NTN Pty Limited -v- The Board of the Post & Telecommunication Corporation [1987] PNGLR 70
Arowe Logging Pty Ltd -v- The Independent State of Papua New Guinea and Minister for Forest [1988-89] PNGLR 216.
PNG Air Pilots -v- Director of Civil Aviation [1983] PGNLR 1.

Counsel
K. Latu, for the Plaintiff
N. Kiuk, for the Defendant

24th March, 2006

LENALIA, J. In October last year, the Plaintiff instituted these proceedings against the various defendants for an alleged strike on which the Nurses Association of Papua New Guinea and its members were engaged in a "sit in protest". These proceedings were filed on 20th of October 2005. The Plaintiff through their lawyers was granted leave to dispense with requirements to serve the Notice of Motion and supporting documents pursuant to O.4 r.38 of the National Court Rules.

On 20th of that month, the Court heard Mr. Latu of counsel for the Plaintiff and having satisfied itself that on the balance of convenience there were substantial issues to be trial, the Court gave the following orders:

1. That the executive members and the entire membership of the East New Britain Branch of the Papua New Guinea Nurses Association be restrained from continuing on with the strike or sit in protest until the substantive issue is properly determined.
   
2. That the executive members and the entire membership of the East New Britain Branch of the Papua New Guinea Nurses Association be restrained from harassing the Plaintiff and it’s Executive and the Chief Executive Officer of the Nonga Base Hospital from performing their duties at the Nonga Base Hospital.
   

The above orders were made returnable on 28th day of October 2005.

The Defendants who are the Nursing Staff of the Nonga Base General Hospital were on strike over a log of claims including:-

1. Nurses outstanding allowances
2. Allied Health Workers delayed Over-Time and On-Call Allowances.
3. Doctors outstanding Gratuity Allowance.
4. Allied Health Workers Medical Laboratory Technicians Nurses and Doctors, and the petition for removal and suspension of the Chief Executive Officer and his Executive Management team.
   

The matter was mentioned on 28th of October of last year and counsels applied for the orders to be extended. That application was made before Mogish, J. on the basis that the Plaintiff’s lawyers were to serve documents in relation to the Contempt charges. Though the matter was adjourned to the 16th of December of that year, if the orders had been complied with, then I suppose the matter would have to stand dismissed.

When lawyers appeared last week Friday, Mr. Latu was to move a Notice. I believe, it might have been the motion to punish all named defendants for Contempt of Court. However, Mr. Kiuk made a preliminary application on three specific areas of law.

Those matters include the issue of locus standi. In his very brief submission, Mr. Kiuk submitted that the Plaintiff lack standing. It appears from the Plaintiff’s pleadings that the Nonga Hospital Board is an authority perhaps with the standing required to sue and be sued in law. The law would fail its functions if it does not endorse or recognize the principle that public authorities should be compelled by law to perform their duties as a matter of public interest at the instance of any person or authority genuinely concerned. I am of the view that the Board has locus standi.

The test so far adopted in this jurisdiction on the issue of locus standi is that in order to entertain a person or authority as an applicant in any proceedings is that an applicant ought to have a "sufficient interest" in the proceedings: NTN Pty Ltd -v- PTC [1987] PNGLR 70, Arowe Logging Pty Ltd -v- The Independent State of Papua New Guinea and Minister for Forest [1988-89] PNGLR 216. PNG Air Pilots -v- Director of Civil Aviation [1983] PGNLR 1.

If this Court is satisfied that, there is cause for grievance, then the Application should proceed: Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Business Ltd [1950] 2 A11 ER 378.

The second issue raised in that preliminary application is one of there being no cause of action. If there is no cause of action, then the issue arises, is can the Defendants be prosecuted for Contempt of Court. Unfortunately Mr. Kiuk did not elaborate further as to why he raised such issue. Mr. Kiuk directed the Court’s attention to O.4. r.7 of the National Court Rules. Order 4 r.7 (1) which says that an originating summons ought to specifically state the relief claim by the Plaintiff. Subsection (2) of Rule 7 states that, where a claim for relief includes a claim for the determination or discretion of the Court on any issue, the originating process must state such question. Because there was no other submission made in relation to I will infer that what counsel was referring to would be the issue of contempt proceedings.

What is clear is Division 6 of Order 14 provides for Contempt proceedings (see O.14 r.37). Of particular interest is the procedure to be followed as required by O.14 rr 42 and 43. I read those provisions;

42. Procedure generally.
    

(1) where contempt is committed in connexion with proceedings in the court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.

(2) Where contempt is committed, but not in connexion with proceedings in the court, proceedings for punishment of the contempt must be commenced by originating summons, but an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, unless the court otherwise orders.

The above provisos are self-explanatory and I do not need to go over them. But I think the gist of Mr. Kiuk’s application may be centred aboard, the next proviso in the Rules, that is O.14 r.43. I have perused the file and all the documents therein. I have read through the Affidavit of Service filed and served by one Sergeant Andrew Manamb of Rabaul Police Station. I have noted that there is no statement of charge: That Sub-rule says:

"45. Service

The notice of motion or summons, the statement of charge and affidavits shall be served personally on the contemnor".

The requirement for service pursuant to O.14 r.45 is that a notice of motion or summons, the statement of charge and all affidavits must be served on the contemnor personally.

If there is not statement of charge, there is no cause of action and I must up-hold the preliminary submission and refuse the application for contempt proceedings.

I order that the Plaintiff shall meet the cost of appearance today to be taxed if not agreed.

___________________________________________________________

Lawyer for the Plaintiff : LATU Lawyers
Lawyer for the Defendants : LOMAI & LOMAI Attorneys