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Tickle v Tsorong [2019] PGNC 197; N7923 (19 July 2019)

N7923

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. N0. 493 0F 2018

BETWEEN:
JOHN TICKLE
Plaintiff

AND:
CLEMENT TSORONG & BERNARD TAGO
Defendants

Kokopo: Susame, AJ
2019: 9, 19 July

CONTEMPT – Disobedience of order – whether defendants are liable for contempt – elements of contempt requires proving - order is open ended with no set time frame- order not specific on how much each defendant will pay – payment of 2 % interest not calculated in monetary terms - order not too clear and ambiguous- No other evidence defendants conduct was deliberate and wilful – Plaintiff has failed to discharge onus of proving guilt beyond all reasonable doubt

Cases Cited:
Papua New Guinea Cases

Siune v Rimua [2013] PGNC 83; N5110 (28 March 2013)
Yap v Tan [1987] PNGLR 227

Overseas Cases

Hadkinson v Hadkinson [1952] 2 All ER 567

Counsel

Mrs. N Rainol, for the Plaintiff
Mr. P Yange, for the defendants

DECISION

19 July, 2019

1. SUSAME AJ: Plaintiff moved a motion on 12 June 2019 charging the defendants for contempt pursuant to Order 14 Rule 38 (a) (b) of the National Court Rules.

The Statement of Charge pursuant to Order 14 Rule 43 reads:

Defendants stand charged for default of the Court Orders made on 5 April 2019. They have deliberately refused to settle the outstanding judgment and have simply disobeyed valid court orders.

2. On 5 April 2019 a default judgment was entered for the plaintiff in the sum of K32, 800.00 with 2% interest per annum until judgment was settled. Further defendants were ordered to pay plaintiff’s cost on a party/party basis to be taxed if not agreed.

3. That judgment has not been complied with, hence this proceeding.

4. Together with the motion is the supporting affidavit evidence of the plaintiff sworn on 5^th June 2019.

5. Mr. Yange entered appearance for the contemnors. In his oral submission counsel advanced this argument.

6. There are three requirements for proof of a contempt charge:

• Orders must be clear and unambiguous (Bishop v Bishop [1988] PNGLR 533).
• Orders were properly served.
• There was wilful disobedience of the order

7. Mr. Yange made reference to the case of Siune v Rimua [2013] PGNC 83; N5110 (28 March 2013) which discussed the principles.

8. Mr. Yange did not take issue on the requirement of service of the order. It has been properly served. The arguments centered around two other elements.

9. Whether orders are clear and unambiguous and whether there was wilful disobedience of the order. Mr. Yange argued the order is unclear or ambiguous. It does not specify how much each defendant will pay. No time is given for settlement of the order. Order is opened ended. Thirdly 2% interest has not been calculated. For these reasons it cannot be said defendants wilfully failed to comply with the court orders.

10. Mrs. Rainol argued orders are valid and have not been appealed against. Defendants have been unreasonable in not complying with the court order.

11. Orders issued by the court on 5 April 2019 were:

“1..

2. Default judgment is entered for the plaintiff against the defendants in the sum of K32 800.00

3. The defendants shall pay the Plaintiff interest on the judgment debt at 2% per annum from the date of judgment until payment is made in full.

4. The defendants shall pay the Plaintiff’s cost of this proceedings on a party/party basis to be taxed, if not agreed. “

11. The law is settled on compliance of court orders. Noncompliance of orders of the court in civil proceedings amounts to civil contempt. Obligation is on every person against whom order is made to comply unless and until order is discharged, even if the order is believed be irregular or void. (Hadkinson v Hadkinson [1952] 2 All ER 567, & Yap v Tan [1987] PNGLR 227).

12. A contempt charge is criminal in nature hence, the standard of proving the charge is that applied in proving guilt in a criminal case, that is prove beyond reasonable doubt.

13. Was the order clear and unambiguous?

14. It is noted order No. 02 is a general order against the defendants to pay sum of K32 800.00. It does not state how much each defendant will pay. It does not prescribe time for compliance. It is open ended. Only after two months of obtaining the default judgment plaintiff commenced this proceeding criminally charging the defendants with the contempt charge. No alternative steps were taken to enforce the judgment of the court through the civil process.

15. Furthermore order for 2% interest payable per annum on the judgment debt is too general. No monetary amount has been calculated for defendants to pay and whether it will be equally apportioned or not. The order does not specify. Order is open ended and does not demand its compliance forthwith. Apart from the service of the order on the defendants on 18 April & 30 April 2019 respectively there is no material evidence defendants have by their conduct wilfully and deliberately disobeyed the order of the court. Therefore in the circumstances it is unsafe for this court to find each of the defendants guilty of contempt. Plaintiff has not discharged the onus of proving guilt. Accordingly, contempt charge against each of the defendants is dismissed.

16. With regard to cost it is discretionary parties to bear own cost.

Natphil & Associates: Lawyer for the Plaintiff
Islands Legal Services: Lawyer for the Defendants