N3858

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 141 of 2007

BETWEEN:

MATHEW MOIGA on his behalf and as representative of their villages and the 68 Clan Agents/signatories to the 1967 Block 6 Timber Rights Purchase Agreement set in schedule 1 hereto:
Plaintiff.

AND:

MR NEVILLE DEVETE as Acting Solicitor General
First Defendant.

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant.

Waigani: Salika, DCJ
2010: 11 February

CONTEMPT – Contempt of Court – what is contempt of court – whether the alleged contemnor disobeyed court orders – duty of persons to whom the court order is directed at – no discretion to refuse court order other than by way of an appeal.

Cases Cited:

Papua New Guinea Cases
Passingan Taru (1982) PNGLR 292
Awaita (1985) PNGLR 179, 
Paul Metta v The State (1992) PNGLR 176, 
Yap v Tan (1987) PNGLR 227, 
The State v Foxy Kia Tala (1985) PNGLR 303, 
Peter Luga v Richard Sikani & Another (2002) Unreported National Court Judgment N2285 
Poka v The State (1988) PNGLR 218

Overseas Cases
Hadkinson v Hadkinson [1952] p.285
Spokes v Banbury Board of Health (1865) LR 1 Eq 42 
Howitt Transport v Transport and General Workers Union [1973] ICR 1 

Counsel:

Mr C Narokobi, for the Plaintiff
Mr Kandi, for the Defendants

11 February, 2010

1.	SALIKA DCJ: In this matter the plaintiff took out proceedings by way of an Originating Summons seeking orders for:-

(1)	Leave of the Court to apply for judicial review pursuant to o.16 r.3 of the National Court rules.
(2)	An order in the nature of mandamus or a mandatory injunction requiring the First Defendant to sign the certificate of judgement in relation to proceedings in WS 1492 of 2005 pursuant to s.14(2) of the Claims By and Against the State Act 1996.
(3)	Costs on a Solicitor – Client basis.

2. A notice of motion in similar terms was filed together with the Originating summons seeking the same orders. In support of the motion Mathew Moiga filed an affidavit on the same date 26th March 2007.

3. Leave was granted by the court on 2 April 2007 and matter adjourned to the Registrar for a date to be obtained for hearing of the judicial review.

4. On 11 April 2007 the Solicitor General entered notice of appearance for himself and the State.

5. There is an order on Court file obtained on 5 April, 2007 ordering the First Defendant to sign the Certificate of judgement in relation to proceedings WS 1492 of 2005, by close of business on Tuesday 10 April 2007.

6. Since then, numerous other orders have been made requiring the Solicitor General to sign the certificate of judgement.

7. The Solicitor General had since failed to sign the certificate of judgement and was therefore charged with contempt of the court for his failure to sign the Certificate of Judgement.

8. The Statement of Charge reads:-

That you Mr Neville Devete the Acting Solicitor General and the First Defendant in these proceedings is in Contempt of Court in that you wilfully and knowingly failed to comply with the provision of the Orders of Court made on 6th June 2007 that is to say:-

1.	That His Honours Orders were:-

1.	The First Defendant, Mr Neville Devete as Acting Solicitor General to sign the Certificate of Judgement in relation to proceedings WS No 1492 of 2005 of 01st March 2007 pursuant tos.14(2) of the Claims By and Against the State Act 1996, and Order of Court of 5 April 2007 that is to be signed within 14 days.

2.	That you as the First Defendant willingly and knowingly disobeyed the Court Order in that:-

1.	You did not sign the Certificate of Judgement in relation to the proceedings WS No 1492 of 2005 of 01st March 2007 within 14 days, and are therefore guilty of Contempt of Court and ought to be punished by imprisonment for breaching Court Orders.

9. The Charge was heard and I reserved. The matter has taken some time to complete for a number of reasons. One of the reasons being that the position of Solicitor General has changed so many times over the last few years with officers acting on the position and then replaced and with one being suspended from office thereby rendering the matter to be adjourned sine die. Another reason is that as this matter has connections with other previous actions the court dealt with more time was needed to have a careful look at this file amongst other files, and a suggestion that the plaintiffs claim was a fraudulent claim.

10. I will deal firstly with the issue of whether Neville Devete the now substantive Solicitor General of PNG is guilty of contempt of court. But before I descend onto that I need to look at what is Contempt of the Court.

11. What is Contempt of Court? The Concise Law Dictionary by PG Osborn Fifth Edition defines Contempt of Court as:-

"(1)	Failure to comply with an order of a Superior Court, or an act of resistance or insult to the Court, or the judges

(2)	Conduct likely to prejudice the fair trial of an accused person, punishable by fine or committal in prison".

12. In common law the learned authors of "The law of Contempt", Anthony Arlridge and David Eady at page 30 say:-

"The Common law definition of Contempt of Court is an act or omission calculated to interfere with the due administration of justice. This covers criminal contempts (that is acts which so threaten the administration of justice that they require punishment) and civil contempts (disobedience to an order made in a civil cause).

13. In other words failure to comply with an order of the Court is an act calculated to interfere with due administration of justice and is an act of resistance or insult to the Court.

14. In Papua New Guinea, the courts have adopted the common law position. This is evidenced by the following decisions of the court in relation to what is contempt of Court:- Re: Passingan Taru (1982) PNGLR 292, Re: Awaita (1985) PNGLR 179, Paul Metta v The State (1992) PNGLR 176, Yap v Tan (1987) PNGLR 227, The State v Foxy Kia Tala (1985) PNGLR 303, Peter Luga v Richard Sikani & Another (2002) Unreported National Court Judgment N2285 and Poka v The State (1988) PNGLR 218.

15. The purpose of the Contempt jurisdiction is as summarised by Lord Morris in Attorney General v times Newspapers (1974) AC 273 at p.302 where he said:

"In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity; it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted and their authority wanes and is supplanted."

16. The statement made by the law lord is very relevant in PNG today. That statement was made in 1974 just before PNG got her political independence but it is vitally important in our community today. PNG is a developing country and at this stage of the country's development, it faces many challenges on issues of the maintenance of the rule of law, good governance, separation of powers, corruption, discriminations in different forms and maintenance of democracy. The general opinion of the community at large is that respect for the legislature and the executive arms of government have waned and that the last bastion of our system of governance that is holding the country together is the judiciary of this country. The structure or ordered life in this country is at great risk if legitimate orders of the courts of the land are allowed to be so flouted and the respect and the Judicial powers of the court loses its effectiveness and authority. For the same reason that the common law has embraced the contempt of court jurisdiction, I am of the view that we in PNG also embrace the area of law in our own jurisdiction. It is a sound one.

17. The learned authors of "The Law of Contempt" (supra) identify the principle heads of contempt as:-

(a)	contempt in the face of the court, as assaulting or insulting the presiding judge;	
(b)	words, written or spoken, scandalising the court.
(c)	acts calculated to prejudice the fair trial of a pending cause.
(d)	impeding service of process of the court or altering or forging the process;
(e)	revenges taken upon persons for what they have done in the course of litigation;
(f)	breach of duty to the court by an officer of the court;
(g)	disobedience to an order of the court.

18. Again we in PNG have adopted these principle heads of contempt as shown by PNG cases I have alluded to earlier. Again I would adopt them in this case.

19. In this case the nature of disobedience complained of falls into category (g) above, that is that Mr Devete disobeyed an order of the Court.

20. The actual orders of the court that Mr Devete is alleged to have breached are these:

On the 6th day of June 2007, the Court made the following orders:

1.	The First Defendant, Mr Neville Devete as Acting Solicitor General shall sign the Certificate of Judgment pursuant to order of Court of 5th April 2007, that is to be signed within 14 days; and

2.	Costs of motions awarded to Plaintiff.

Ordered the 6th day of June 2007.
Entered the 7th day of June 2007.

21. Mr Devete has not directly denied disobedience of the Court order. He gave evidence explaining why he disobeyed the court order.

22. In his submissions counsel for Mr Devete has gone to great lengths to explain the nature of the Claim in WS 1492 of 2005: Mathew Moiga v The State and Others. He submitted as follows:

 "36.	The decision of 11 August 2006 was for the parties to go for trial on assessment. The clear intent of the Orders of 11 August 2006 is for default judgement to be entered against the State with damages to be assessed. That clearly was the intention of the Order pronounced on 11 August, 2006.

37.	The next step to be undertaken by the parties and in particular, the plaintiff was to have the matter listed before the Civil Listings Court for appropriate directions and the allocation of a trial date for assessment of damages.

38.	The State has led evidence to demonstrate to the Court that the Plaintiffs had no good reason at law to resort to an O.4 r.21, NCR application seeking a specific sum of K1,925,000.00. The plaintiff's application under Order 4 Rule 32, NCR made on the 6 December,2006 was in clear circumvention and blatant defiance or breach of an Order given in their favour, on the 11 August 2006, which Court Order required assessment to be made, following the entry of Default Judgement against the State.

39.	The State has also led evidence in the trial of the Contempt Charges herein, to demonstrate to the Court that the later Mandamus proceedings instituted by the Plaintiffs were calculated manuvering and manipulation of the due processes of the Court to give legitimacy to an Order obtained improperly and irregularly in the following manner.

(i)	Improper invocaton of o.4 r.32, NCR

The plaintiffs claim is a claim at common law tort for alleged negligence by certain agents of the State and pleading vicarious liability against the State. The action is one commenced by Writ of Summons with Statement of Claim endorsed to it.

To establish vicarious liability against the State, the Plaintiff was obliged to satisfy the Court of the five (5) basic and fundamental elements of the tort of negligence.

(a)	First the State owed a duty of care to the plaintiffs or to the person in whose stead the plaintiffs are suing.

(b)	Secondly, that the State breached that duty, i.e. Act or omission of State's conduct caused injury to the person.

(c)	Thirdly, that the State's negligent conduct caused injury to the person.

(d)	Fourthly, that the person's injuries are not too remotely connected to the State's conduct.

(e)	Fifthly, that the plaintiff has not contributed to his or her own injuries (or loss) by being contributorily negligent or contributorily assuming the risk or injury.

(ii)	One cannot simply lace a monetary value on an alleged act, conduct or omission that could be described or deemed as negligence. It is irresponsible and an act of fraud for one to put a monetary value on a mere allegation or negligence.

It is clear that the Court was misled by Narokobi Lawyers in making the application, under O.4 r.32, NCR. That rule is not intended to be invoked, in the manner Narokobi Lawyers did in an action for alleged negligence.

(iii)	The decision of the National Court comprising His Honour Los, J (as he than was) of the 6 December 2006 was made contrary to s.12 (3) of the Claims By and Against the State Act and the law restated in State & Ors v Brian Josiah & 80 Ors, SC 792 and Stephen John Rose & John Charles Harrison [2007] N3241. The plaintiffs claim was not a liquidated demand. It was also not a claim for a debt only.

(iv)	The court was misled by Narokobi Lawyers. The lawyers were duty bound and they had an obligation to demonstrate utmost good faith, when they made the ex parte application on the 6 December 2006.

The Lawyers were to demonstrate utmost good faith and candidness by bringing to the attention of the Court all facts and materials including facts which could be put in favour of the Defendant's position.

When Narokobi Lawyers made the successful ex parte application before Los, J on the 6 December, 2006, for summary judgement in the sum of K1,925,000.00, they did not disclose to the Court the following crucial facts:-

(a)	The existence of the Court Order of 11th August 2006 requiring assessment to be made on the Plaintiff's claim.

(b)	Section 12(3) of the Claims By and Against the State Act 1996, which says you cannot ask the Court to give you a specific sum in a claim against the State, unless the claim is a "debt only". The Supreme Court decision of State v Brian Joshia & 80 ors, SC 892 operates as a bar to a claimant obtaining judgement against the State in a specific sum, without assessment.

(c)	The numerous other identical claims brought by the same Plaintiffs that were dealt with by the Court and others that are pending before the National and Supreme Courts of Justice, which include the following:

1.	Mathew Moiga & Ors v Sate 
WS No 1492 of 2005
2.	Raymond Turu & Ors v State
WS 353 of 1999
3.	Raymond Turu & Ors v State
OS 1030 of 2005
4.	Michael Sakelu & Ors v State
WS 924 of 1999
5.	John Maku & Ors v State
OS 101 of 2003
6.	Jack Apa & Ors v State
OS 1030 of 2005
7.	Sate v Raymond Turu & Ors v State
SCA 24 of 2006
8.	Raymond Turu & Ors v State
WS 798 of 1999-
9.	Raymond Turu & John Maku & ors v State – WS 1203 of 2004 
10.	Raymond Turu & John Maku & Ors v Patterson Lawyers 
WS3298 of 2006

REASONS GIVEN BY THE CONTEMNOR FOR REFUSING TO ENDORSE THE CERTIFICATE OF JUDGEMENT OF THE CONTROVERSIAL ORDER OF 6th DECEMBER, 2006

40.	The order of 6 December, 2006 was obtained fraudulently. The Lawyer for the plaintiffs misrepresented and misled the Court and, the court made an obvious error in law.

41.	The mandamus orders obtained on the 5 April 2007 and 6 June 2007 respectively were based on the fraud, impropriety and errors above.

42.	In all conscience, the contemnor could not sign the Certificate of Judgement which will have the ultimate effect of sanctioning and legitimizing a court Order which was obtained by fraud.

43.	To sign a Certificate of Judgement, which will have the effect of giving legitimacy to an order obtained fraudulently is immoral, illegal inequitable and unconsciousible. In all of the circumstances, the Contemnor can not and will not sign the Certificate of Judgement unless or until such time the controversial Order of the 6 December, 2006 is corrected.

44.	To sign the Certificate of Judgement would be akin to or tantamount to licensing the Plaintiffs to double dip, enrich unjustly and steal monies lawfully belonging to 6 million people of PNG

These monies must be spent on hospitals, schools and roads that are in deteriorating state now, not to be wasted on fraudsters and thieves, anymore..

45.	State has taken the appropriate steps to have the Orders of the 6 December 2006 discharged. An application has been filed on this contempt proceedings. A similar application to set aside the Court Orders of 6 December 2006, is pending in the WS No 1492 of 2005 The State through Posman Kua Aisi Lawyers has filed that application.

23. In his submissions counsel had alluded to reasons Mr Devete has failed to sign or execute the court order to be forwarded to the Department of Finance for payment.

24. With respect while I acknowledge the reasons for Mr Devete's refusal I am aware of our practices and procedures provided under the rules. The arguments and allegations made by Mr Kandi for Mr Devete are arguments that ought to have been properly before the trial judge in WS 1492 of 2005 at the time the application for summary judgement was made or they would have been good grounds upon which to mount an appeal. All these information would have greatly assisted the court. Is he now entitled to raise the matters at this stage? That is one side of the argument.

25. The other side of the argument is whether the orders of the court obtained on 8 December 2006 in WS 1492 of 2005 – Mathew Moiga and others v The State & Others were obtained properly without any element of fraud. These are serous allegations for the court to consider and investigate. The transcripts need to be produced to prove that indeed Narokobi lawyers did not inform the court all the relevant material that they should have. Mr Kandi is correct in his submission that lawyers have a duty and obligation to demonstrate utmost good faith and put all the necessary material before the court when making ex parte applications or when an application intended for an inter parte hearing turns into an ex parte hearing in the event of the other party not making an appearance. While lawyers have a duty to their clients they must never forget that they are officers of the Court and as such have that duty to the Court to help the court come to a fair considered decision based on all the evidence before it.

26. On the other hand I am aware from my own experience that on busy motion days, judges in their haste to complete all the motions matters in a day tend to lower their guard to be thorough and take it for granted that what the lawyers say from the bar table is correct or true. This may have been the case here, but I do not know for sure.

27. If there was a judgement for the plaintiff with damages to be assessed, the lawyer making the application for summary judgement ought to have properly informed the court of that fact. In this case if the lawyer failed to inform the court that there was a court order for assessment of damages, was that failure deliberate or was it an inadvertent omission? What was the basis for an application for a summary judgement in those circumstances. Ultimately it was the court that must accept full responsibility for the legal blunder. The learned judge ought to have checked the file thoroughly first before making any orders on the matter. Because of that blunder the Solicitor General is now facing a serious Contempt of Court charge, which is criminal in nature because of the penal sanctions attached to them. There is no dispute the charge was served on Mr Devete.

28. The scheme after the court makes orders is that the party in whose favour the orders are made takes out the orders consistent with the minutes of the court orders and the presiding judge or the Registrar signs the orders. The orders then go to the Registrar who prepares and signs a certificate of judgment S.13(2) of Claims By and Against the State Act The certificate of judgment then goes to the Solicitor–General to sign and after he signs, the orders and the certificate of judgement are forwarded to the Department of Finance for payment.

29. Taking into account the reasons why Mr Devete refused to sign the court order I am of the view that Mr Devete has no discretion to refuse to sign. Section 13(2) of the Claims By and Against the State Act reads:

13.	No execution against the State.
(1)	……….
(2)	Where a judgement is given against the State, the registrar, clerk or other proper officer of the court by which the judgement is given shall issue a certificate in Form 1 to the party in whose favour the judgement is given.

30. Section 14(1) and (2) reads: 

14.	Satisfaction of Judgement against the State.
(1)	The certificate referred to in Section 13(2) shall be served on the Solicitor-General by—
(a)	personal service; or
(b)	leaving the document at the office of the Solicitor-General with the person apparently occupying the position of personal secretary to the Solicitor-General between the hours of 7.45 a.m. and 12 noon p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours o duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).
(2)	The Solicitor-General shall, within 60 days from the date of service upon him of a certificate under Section 13(2), endorse the certificate in Form 1.

 31. For better or for worse the law forces him to sign and he must sign. I find support for that contention in the case of Yap v Tan (1987) PNGLR 227 where Hinchliffe J held:-

Where an order is made by a Court of competent jurisdiction it is the obligation of every person against, or in respect of, whom the order is made, to obey it unless and until that order is discharged; the obligation extends to cases where the person affected by the orders believes it to be irregular or even void.

32. I also find support in the common law in the case of Hadkinson v Hadkinson (1952) p.285 at 288 where Romer L J said:

It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.

33. In Spokes v Banbury Board of Health (1865) LR 1 Eq 42 at page 48, Wood VC said:

"the simple and only view is that an order must be obeyed, that those who wish to get rid of that order must do so by the proper course, an appeal. So long as it exists, the order must be obeyed, and obeyed to the letter…."

34. In Howitt Transport v Transport and General Workers Union (1993) 1CR1 at 10 Sir John Donaldson said:-

"orders of any Court must be complied with strictly in accordance with their terms. It is not sufficient by way of answer to an allegation that a court order has not been complied with for the person concerned to say that he "did his best'. But if a court order requires a certain state of affairs to be achieved the only way in which the order can be complied with is by achieving that state of affairs."

35. All these case authorities show that Mr Devete had no discretion to refuse to sign the orders of the Court. If he wanted to get rid of the order he had to do the proper thing and that was to file an appeal. In this case he did not.

36. He refused to sign and in doing so he was and is in contempt of court. Accordingly, I am satisfied beyond reasonable doubt as I believe that to be the standard of proof required, that Mr Devete is guilty to the charge of Contempt of Court.
______________________________________________________
Narokobi Lawyers: Lawyer for the Plaintiff
Posman Kua Aisi Lawyers: Lawyer for the Defendants