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Raina No.1 Ltd v Elisha [2013] PGNC 63; N5234 (13 June 2013)

N5234

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 560 OF 2009

BETWEEN

RAINA NO. 1 LIMITED
Applicant

AND

NAOMI ELISHA
First Respondent

AND

MR RAGA KAVANA AS REGISTRAR OF TITLES
Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2013: 07th & 13th June

CONTEMPT OF COURT – Application for contempt of court – Alleged breach of court order – Contempt within the proceedings – Service of court order – Failure to prove service – Application dismissed – National Court Rules – O 14, rr 41-45 & 49.

Cases cited:

Ross Bishop -v- Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533
Moses Vua -v- Francis Mavu (2008) N3294

Counsel:

Mr D Mel for Applicant
Mr T Tape for First Respondent
No appearance for Second & Third Respondents

JUDGMENT

13th June, 2013

1. Makail, J: This is an application for contempt of court against the first respondent. The alleged contempt is within the proceedings as it arises from an alleged breach of a court order of 02nd October 2009 which among others, granted leave to the applicant to apply for judicial review and restrained the respondents from dealing with a property described Allotment 92, Section 449, NCC Valley, National Capital District being a piece of land contained in State Lease Volume 31, Folio 139, until the determination of the application for judicial review. The application is brought pursuant to O 14 of the National Court Rules.

2. As it is contempt within the proceedings, the applicant invoked the procedure under O 14, rr 41 - 45 of the National Court Rules and the first respondent was arraigned on the facts as presented by counsel for the applicant and set out in the statement of charge filed on 23rd January 2013. She was arraigned on two charges. Firstly, she knowingly entered into negotiation with a third party to sell the property and secondly, she actively took steps to have a new official copy of the State Lease for the property replaced on account of it being lost or destroyed to the second respondent. She denied the charges and parties called evidence.

3. For its case, the applicant tendered the following affidavits and closed its case:

3.1. Affidavit in Support of Henry Vue Henry sworn and filed on 30th October 2012 (exhibit "P1") and

3.2. Affidavit of Henry Vue Henry sworn on 15th January and filed on 23rd January 2013 (exhibit "P2").

4. For the first respondent's case, she tendered the following affidavits and closed her case:

4.1. Her affidavit in support sworn and filed on 10th December 2012 (exhibit "R1") and

4.2. Her affidavit sworn on 18th April 2013 and filed on 19th April 2013 (exhibit "R2").

5. In Ross Bishop -v- Bishop Brothers Engineering Pty Ltd [1988-89] PNGLR 533, it was held that in civil contempt cases, the onus of proof is beyond reasonable doubt and it must be established that the defendant intended to disobey or flout the order of the Court. In Moses Vua -v- Francis Mavu (2008) N3294, the Court held among others that, where it is alleged that a person has committed contempt of court for breaching a court order, three things must be proven:

· the order must be clear and unambiguous;

· it must be properly served; and

· there must be a deliberate failure to comply with it.

6. These matters are crucial to the success of a contempt of court proceedings and the onus is on the applicant as the party making the allegation to prove them beyond reasonable doubt. The reason is obvious. Contempt of court carries criminal sanctions. A person's liberty is at stake. He or she could end up in jail or fined. If it is a company, it may have its property sequestrated or fined: National Court Rules, O 14, r 49.

7. Thus, it is no light matter and the party bringing it must be serious. It must ensure that the procedures and powers of the Court are correctly invoked and prove the charge beyond reasonable doubt.

8. In this case, the first respondent took issue with the clarity of the terms of the order, its service and the deliberateness of its breach. As to the requirement of service, I have read in the affidavits of Mr Henry and they do not establish service of the order on the first respondent. Further, his assertions that the order was served on the first respondent is hearsay because he was not the person who served the order on the first respondent.

9. Mr Mel of counsel for the applicant attempted to rely on an affidavit of service of one Bobby Simon filed on 20th October 2009 to establish service. This affidavit was not tendered as evidence for the applicant's case. Nor did Mr Mel ask for leave to re-open the applicant's case to have it tendered for the applicant's case.

10. The point was made earlier that contempt of court proceedings is a very serious matter because where the alleged contemnor is a human being, his or her liberty is at stake. He or she could be sent to jail if found guilty. Therefore, there is no room for complacency or error in its prosecution and the applicant or any one for that matter must exercise great care and diligence in its prosecution. In my view the failure to have the affidavit of service of Bobby Simon tendered for the applicant's case is fatal to the applicant's case. It cannot be relied upon by the applicant and the Court is not bound to consider it. The end result, there is no evidence to establish service and for this reason, the application must fail. It is dismissed with cost. If cost is not agreed, it shall be taxed.

Judgment and orders accordingly.
____________________________________

Steeles Lawyers: Lawyers for the Applicant
Japson Lawyers: Lawyers for the First Respondent
Acting Solicitor-General: Lawyers for the Second & Third Respondents