N5474
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NOS 616 & 924 OF 2006

RAIKOS HOLDINGS LIMITED
Plaintiff

V

TONY TAI TUNG CHI
First Defendant

YUAN CHIEN CHENG
Second Defendant

YOUNG WADAU
Third Defendant

BUMBUM BAIS, RICKY BAIS, JACK GABOR
AND THEIR AGENTS, ASSIGNS AND ASSOCIATES
Fourth Defendant

PORCHE ENTERPRISES LIMITED
Fifth Defendant

Cannings J

Madang: 18, 19 October 2007
Waigani: 2 November 2007

CONTEMPT – contempt by publication – sub judice – whether public comment on pending court proceedings impairs public confidence in impartial and competent administration of justice – tests to apply.

The defendants in a case in the National Court published a notice in a national daily newspaper while the case was still proceeding, commenting on the subject matter of the court case and an order made by the Court. The plaintiff brought contempt charges against the defendants, arguing that the notice interfered with the due administration of justice by lowering the authority of and scandalising the Court and bringing it into disrepute.

Held:

(1)	Contempt of court is akin to a criminal offence and consists of any conduct that by act or omission is calculated (ie intended) to interfere with the due administration of justice.

(2)	Contempt by publication consists of publishing allegations or other comments that tend to undermine public confidence in the administration of justice or prejudice the fair trial of a case.

(3)	There is no blanket prohibition on making public comments about orders or judgments of a court or a continuing court case.

(4)	Each case of alleged contempt by publication must be assessed on its merits to determine whether the publication was likely to:

•	bring a court or judge into disrepute; or
•	lower the authority of the court or judge; or
•	interfere with the due course of justice; or
•	scandalise the court; or
•	impair public confidence in the impartial administration of justice.

(5)	The public notice did not infringe against any of those prohibitions as it assumed considerable knowledge as to the disputes underlying the court proceedings and would only have been comprehensible to persons with a fairly detailed knowledge of those proceedings and did not question the authority of the court or the validity of its order. The notice was innocuous and its authors were exercising their right to freedom of expression guaranteed by Section 46 of the Constitution.

(6)	The authors of the notice and other contemnors alleged to have facilitated publication of the notice were found not guilty of contempt.

Cases cited

The following cases are cited in the judgment:

Attorney-General v Times Newspaper Ltd [1974] AC 273
Charles Maino v Moi Avei & Electoral Commission (1998) N1733
Peter Luga v Richard Sikani and The State (2002) N2286
Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448
Raikos Holdings Ltd v Tony Tai Chung Chi and Others, OS No 924 of 2006, 23.01.07
Richard Sikani v The State and Peter Luga (2003) SC807
Supreme Court Reference No 3 of 1984; Ex Parte Rowan Sidney Callick and Joe Koroma [1985] PNGLR 67

NOTICE OF MOTION

This is a ruling on a motion for contempt of court.

Counsel

I P Mambei, for the plaintiff
Y Wadau, for the contemnors

2nd November, 2007 

1. CANNINGS J: This is the verdict on whether ten people charged with contempt of court (the contemnors) are guilty of contempt. They have been charged by the plaintiff, Raikos Holdings Ltd, in relation to ongoing proceedings in the National Court. The plaintiff has brought the charges under Division 14.6 of the National Court Rules. This allows any party to a court case to apply to the court to have another party or any other person convicted of contempt, and punished, if the contempt has been committed in connection with the case.

2. The alleged contempt revolves around publication of a notice in a national daily newspaper, while the case was still going on, commenting on the subject matter of the case and interlocutory orders made by the Court. The plaintiff argues that the notice interfered with the due administration of justice by lowering the authority of and scandalising the Court and bringing it into disrepute. The disputes underlying the court case were sub judice (under judicial consideration) and were not to be commented on while the case was still going on. The person who authored the notice and those who facilitated its publication should therefore be found guilty of contempt, the plaintiff argues. So, the issue for decision is this: are the contemnors guilty of contempt?

THE COURT CASE AND THE ORDERS ALREADY MADE

3. The court case that led to these contempt proceedings relates to forestry operations in the Rai Coast district of Madang Province, conducted for a number of years under a timber permit, No 12-18, issued under the Forestry Act. The plaintiff, Raikos Holdings Ltd, was the permit holder and entered into a logging and marketing agreement with the fifth defendant, Porche Enterprises Ltd. At some time in 2006, or perhaps before then, the date is immaterial, a split developed in the ranks of Raikos Holdings Ltd. Some of the directors had a falling out with the company's managing director, Andrew Sallel, and purported to sack him and a number of other company directors and replace them with a new managing director – Bumbum Bais – and a newly composed board. The group that sacked Mr Sallel is led by Gawan Kuyan, who holds himself out as chairman of the board, and they have sided with Porche Enterprises Ltd, the company that has been doing the actual logging. Mr Sallel and his group of directors have never accepted that they were properly sacked, so much so that last year they tried to terminate the agreement with Porche Enterprises. They also used the company's name to commence court cases against Porche Enterprises Ltd (the fifth defendant) and a number of other defendants including Mr Kuyan. The cases were:

•	OS No 616 of 2006, filed on 5 September 2006; and
•	OS No 924 of 2006, filed on 21 December 2006.

4. Each case has Raikos Holdings Ltd as the plaintiff (even though it shows as defendants people who say they are the proper directors of the company).

5. On 19 January 2007 three motions regarding OS No 924 came before me in Waigani. The defendants moved a motion for dismissal of the proceedings and a motion to punish Mr Sallel for contempt of court. The plaintiff moved a motion for various injunctions. I refused to make most of the orders sought by both sides of the dispute but made a number of other orders and declarations, which had the effect of keeping both proceedings (OS Nos 616 and 924) on foot and published a written judgment: Raikos Holdings Ltd v Tony Tai Chung Chi and Others, OS No 924 of 2006, 23.01.07. The orders I made were these:

1	the defendants' motion for dismissal of the proceedings is refused;

2	the five orders sought by the plaintiff's motion are refused and instead it is declared that:

(a)	The LMA expired on 30 November 2006 and all felling of logs had to cease on that date and not continue thereafter.

(b)	All logs felled had to be removed, hauled to a loading area, loaded and shipped pursuant to the terms and conditions of the LMA by 31 December 2006. No more hauling, loading or shipping (other than provided for below) can take place after 31 December 2006.

(c)	The fifth defendant has until 28 February 2007 to ship logs from the Log Pond.

(d)	The fifth defendant has until 28 February 2007 to give notice to the plaintiff of its desires regarding fixed and movable equipment under clause 28.1(b) of the LMA.

3	the defendants shall be at liberty to prosecute Andrew Sallel for contempt provided that the application for punishment for the contempt is made by originating summons filed in the National Court at Madang;

4	the causes of action in OS Nos 616 and 924 of 2006 shall be merged and OS No 924 of 2006 must be transferred to the Madang Registry of the National Court;

5	the provisions of the National Court Rules concerning proceedings commenced by writ of summons shall from now on apply to the merged proceedings;

6	the plaintiff has 14 days from the date of entry of these orders to file a statement of claim relating to the merged proceedings, failing which the entire proceedings will stand dismissed for want of prosecution.

6. In the meantime, on 18 or 19 January 2007, the Minister for Forests granted an eight-year extension of the Rai Coast TRP. I was not made aware of the extension when I made my orders of the 23rd, but no one has made an issue of that, so nothing turns on it for now.

7. The contentious public notice – the one that has given rise to the contempt charges – was published in The National, one of PNG's two national daily newspapers, on Wednesday 31 January 2007. I am going to quote it verbatim but before doing that I will mention some other things that happened after I made the orders, which help to put the contempt charges in context. On 23 January 2007 – the day I made the orders that have given rise to the contempt charges – Mr Kuyan (who claims to be the company chairman) and Mr Bais (who says he is the managing director – Mr Sallel's replacement) filed National Court proceedings OS No 19 of 2007. They joined Raikos Holdings Ltd as a third plaintiff. As defendants, they named: Mr Sallel; Ignas Mambei (who is Raikos Holdings Ltd's lawyer in the present contempt case) and three others who claim to be still company directors (Batteng Puto, Usum Mai and Yanam Mul). The plaintiffs are seeking a declaration that Mr Sallel and his group of directors were lawfully removed from office at a board meeting in August 2006. They also want injunctions against Mr Sallel, Mr Mambei and the others, restraining them from holding themselves out as being associated with the company. OS No 19 of 2007 has yet to be set down for trial.

8. Soon after OS No 19 was filed, Mr Sallel and his group filed OS No 33 of 2007, on 31 January 2007. Messrs Sallel, Puto and Mul, plus another individual, Bawn Bulum, are plaintiffs. Raikos Holdings Ltd is also named as a plaintiff. They named Mr Kuyan and his group as defendants, as well as Tony Tai Tung Chi (the managing director of Porche Enterprises Ltd) and Teup Goledu (the Registrar of Companies). The plaintiffs seek a declaration that the meeting of August 2006 at which Mr Sallel and his group were removed was illegal. They also want an injunction against Mr Chi to stop him interfering in the company's affairs. OS No 33 has also not yet been set down for trial. So there are now three separate court proceedings on foot regarding Raikos Holdings and the Rai Coast TRP:

•	OS Nos 616 & 924 of 2006 – which form the basis of the contempt charge;
•	OS No 19 of 2007 – filed by Mr Kuyan and his group; and
•	OS No 33 of 2007 – filed by Mr Sallel and his group.

THE PUBLIC NOTICE

9. It was published in the name of Raikos Holdings Ltd and stated:

This is to inform the general public that Raikos Holdings Ltd and Porche Enterprises has no dispute or disagreement on the logging and marketing agreement (LMA). The LMA has never been terminated and Raikos has never brought Porche Enterprises into court. The terminated managing director of Raikos Holdings Andrew Sallel used our name and filed the case in court without our consent and knowledge. He wants to destabilise the good relationship of Raikos Holdings and Porche Enterprises to avenge with the company.

The court order made in Waigani on 23rd of January 2007 published in The National and Post-Courier newspapers is applicable to the timber permit – TRP 12-18 which was expired on 30th of November 2006. The said timber permit was extended on 19th January 2007 for eight (8) years. Set below is the letter received from the National Forest Service advising us that the suspension on felling operations is uplifted and our contractor Porche Enterprises may resume its operation. Also the timber permit extension signed by the Minister for Forest is set out below to confirm its extension. [Those two letters appeared beneath the text of the notice.]

The Public Notice has been made to clear the name and show the good relationship of Raikos Holdings & Porche Enterprises.

Signed by:

Gawan Kuyan
CHAIRMAN/RAIKOS HOLDINGS

THE CONTEMPT CHARGES

10. The charges against the contemnors are as follows:

1.1	The Contemnor namely Tony Tai Chi supported Contemnors namely Bumbum Bais and Gawan Kuyan to publish a Notice in the National Newspaper on the 31st January, 2007 by sponsoring the publication fee to publish a Notice discrediting the validity of the Court Order of Justice Cannings dated 23rd January, 2007. The copy of the newspaper is annexed to the Affidavit of Andrew Sallel.

1.2	Young Wadau be punished for contempt of court as an officer of the court who has the carriage and conduct of these proceedings continued to support and advised the other person named including Gawan Kuyan to publish the Notice in the National Newspaper discrediting a valid court.

1.3	The contemnors namely Tony Tai Tung Chi, Yuan Chien Cheng, Young Wadau, Bumbum Bais, Ricky Bais, Jack Gabor, Asangul Balifun, Jonah Dembi, Gawan Kuyan and John Augustine be punished for contempt of court knowing full well that the court proceedings namely OS No 616 of 2006 and OS No 924 of 2006 are still on foot where important issues concerning the breach of the Logging and Marketing Agreement by the Fifth Defendant are yet to be determined by the Court and conditions of the Court Order of 23rd January, 2007 are yet to be implemented and they went ahead to force the signing of the new Logging and Marketing Agreement on 31st January, 2007 as shown on the newspaper thus demeaning and disrupting the Court proceedings and bring this Honourable Court into disrepute.

2	The Contemnors namely Gawan Kuyan and Bumbum Bais be charged and be punished for contempt of court for perverting the administration of justice and make comments in the National Newspaper on the 31st January, 2007 and that implied that the Court Order made by this Honourable Court on the 23rd January, 2007 is not a valid court order thus bringing this Honourable Court into disrepute. Refer to the newspaper cutting in the Affidavit of Andrew Sallel.

11. Three other charges were included in the statement of charge but I struck some of them out for being too vague and I found some contemnors not guilty after upholding a no-case submission at the close of the plaintiff's case.

WHAT IS CONTEMPT OF COURT?

12. It is akin to a criminal offence and consists of any conduct that by act or omission is calculated (ie intended) to interfere with the due administration of justice. Contempt of court is constituted by a number of different sorts of conduct, the main ones being, as explained by Sakora J in Peter Luga v Richard Sikani and The State (2002) N2286:

1	improper behaviour in a court room 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 which tend to undermine public confidence in the administration of justice or 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, commonly referred to as the "disobedience contempt"; and

5	any 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.

13. In Luga v Sikani, the Commissioner of the Correctional Service, Richard Sikani, was convicted of a disobedience contempt and sentenced to six months imprisonment. The conviction and sentence were later quashed by a 2:1 decision of the Supreme Court on the ground that there was insufficient evidence that the contemnor refused to comply or avoid compliance with the court's orders (Richard Sikani v The State and Peter Luga (2003) SC807, Amet CJ, Los J; Sevua J dissenting). However, Sakora J's comprehensive exegesis on the history, constitutional basis and categories of the law of contempt remained intact.

CONTEMPT BY PUBLICATION

14. At issue in this case is the third category of contempt referred to above: contempt by publication. There are several PNG cases that illustrate what this entails. In Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448 (Supreme Court, Raine DCJ, Saldanha J, Kearney J, Wilson J, Greville-Smith J) the Minister for Justice faced three contempt charges over public comments she made about the judiciary, after a National Court decision to issue an injunction against deportation of a non-citizen, Dr Ralph Premdas. The three charges related to: (1) a letter she wrote to the Chief Justice and copied to 45 "issue conscious" people in the Nation, containing material highly critical of the Judges; (2) the Minister's comments on radio that she had "no confidence in the Chief Justice and other Judges" and "it appears that the foreign judges on the bench are only interested in administration of foreign laws and not the feelings and aspirations of the Nation's political leaders"; and (3) a Post-Courier story in which she was reported as saying "she would not retract from what she said because the judiciary is no longer doing justice". 

15. The Court found the Minister guilty on all three charges and sentenced her to eight months imprisonment. The court held that conduct will amount to contempt sub judice where it presents a real risk as opposed to a mere possibility of interference with the due administration of justice; or where it is intended to prejudice the fair hearing of a matter before the court. Further, any act done or writing published calculated to bring a court or a judge into contempt, to lower its or his authority, or to interfere with the due course of justice or the lawful process of the court, amounts to contempt known as 'contempt scandalising the court' (or as Sakora J called it in Luga v Sikani 'contempt by publication').

16. In Supreme Court Reference No 3 of 1984; Ex Parte Rowan Sidney Callick and Joe Koroma [1985] PNGLR 67 the Supreme Court instituted contempt proceedings against the publisher of The Times of Papua New Guinea newspaper and the author of a controversial article in it. The article commented on issues before the Supreme Court concerning an election petition regarding the electorate of Unggai-Bena Open. At issue was Mr Iambakey Okuk's eligibility to stand for the seat and the article entitled "Okuk, at home and away", commented directly on the issue of residential qualification that was before the court. 

17. McDermott J, sitting as a single Judge of the Supreme Court, concluded that though the article bordered on contempt, the contemnors were not guilty. His Honour held that publication in the media of comments on a matter before the court will not necessarily be regarded as a matter tending to influence the court. However, it is contempt of the court to publish material which prejudges the issue or is likely to cause public prejudgment of the issue the subject of pending litigation. Whether published material purports to prejudge an issue before the court depends on whether or not, in the circumstances of the particular case, what has happened is something which is likely to prejudice the fair trial of the action, and the risk that it will prejudice the fair trial of the action must be a real risk. Further, any act done or material published calculated to bring a court or a judge of the court into contempt or to lower his authority is a contempt of court. Matters relevant to the determination of whether published material tends to lower the authority of the court include:

•	freedom of expression;
•	the nature of the material, and the manner and time of publication;
•	the balancing of the private right to criticise in good faith, public acts done in the seat of justice and the rights of those before the courts to have their cases heard free from matters of prejudice.

18. In Charles Maino v Moi Avei & Electoral Commission (1998) N1733, the respondent to an election petition, Sir Moi Avei, charged the petitioner, Sir Charles Maino, with contempt over public comments made by Sir Charles. The National Court had after hearing the petition ordered a recount of ballot papers and Sir Moi sought a Supreme Court review of that order. Sir Charles held a press conference and used phrases like 'questioned the genuineness of an appeal'; 'he said he appreciated the aggrieved parties right to appeal but I don't want the constitutional rights to be abused by lawyers representing the parties'; 'I hope the lawyers are not appealing just for the sake of appealing in order to make more money out of the Electoral Commission which is funded from the public purse'; 'what is my brother Moi afraid of now? Is he afraid of the recount? Is it because he is trying to hide something?' 

19. Woods J found Sir Charles not guilty of contempt as the statements attributed to him were not calculated to prejudice any of the requirements for the fair and due administration of justice nor could they undermine public confidence in the due administration of justice.

20. Those cases relied on the decision of the House of Lords in Attorney-General v Times Newspaper Ltd [1974] AC 273, which means that the basic test to ascertain whether contempt by publication has been committed is whether a person's published comments tend to undermine public confidence in the administration of justice (scandalising the court and the judiciary) or prejudice the fair trial of a case. There is no blanket prohibition on making public comments about orders or judgments of a court or a continuing court case. Each case of alleged contempt by publication must be assessed on its merits to determine whether the publication was likely to:

•	bring a court or judge into disrepute; or
•	lower the authority of the court or judge; or
•	interfere with the due course of justice; or
•	scandalise the court; or
•	impair public confidence in the impartial administration of justice.

HAS CONTEMPT BY PUBLICATION BEEN COMMITTED IN THIS CASE?

21. Mr Mambei argues yes, for two reasons. First, the public notice includes statements contrary to the court's ruling of 23 January 2007, particularly:

The LMA has never been terminated and Raikos has never brought Porche Enterprises into court.

22. Mr Mambei argues that the court found that the LMA had been terminated and that Raikos Holdings Ltd had a dispute with Porche Enterprises and was the plaintiff in the two National Court proceedings that had been filed. The public notice was therefore misleading and bringing the court into disrepute.

23. Secondly, the public notice was commenting on on-going proceedings in the National Court, which were sub judice. The court's processes were scandalised and the authority of the court was called into question.

24. I have given these arguments careful consideration but concluded that, though the publication of such a notice was a somewhat risky activity on the part of the contemnors and could be regarded as imprudent, I am not satisfied that it infringes against any of the prohibitions constituted by the offence of contempt by publication. The notice assumed considerable knowledge as to the disputes underlying the court proceedings and would only have been comprehensible to persons with a fairly detailed knowledge of those proceedings. I think a reasonable person reading this notice who had no detailed knowledge of the court proceedings would not understand the notice. I do not consider that it brought the National Court or me (the Judge who made the orders being commented on) into disrepute. The notice was not calculated to lower the authority of the court or a judge. It did not interfere with the due course of justice and I cannot uphold the submission that it scandalised the court in any way. It was not a notice capable of impairing public confidence in the impartial administration of justice. I consider that the notice was innocuous and that its authors and those who facilitated publication were exercising their right to freedom of expression guaranteed by Section 46 of the Constitution. I therefore find all ten contemnors not guilty of contempt.

ORDERS

(1)	The contemnors are found not guilty of contempt.

(2)	The motion for punishment is refused.

(3)	An order as to costs, if any, is reserved pending further argument.

Verdict accordingly.
_______________________________________________
Mambei Lawyers & Consultants: Lawyers for the Plaintiff
Young Wadau Lawyers: Lawyers for the Contemnors