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Paga Hill Development Co (PNG) Ltd v Moses [2019] PGNC 49; N7774 (30 January 2019)

N7774

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 365 of 2017

BETWEEN:
PAGA HILL DEVELOPMENT
COMPANY (PNG) LIMITED
Plaintiff

AND:
JOE AVAPURA MOSES
Defendant

Waigani: Hartshorn J.
2019: 30^th January

Application for Contempt Orders

Cases Cited:

Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Ltd [2015] N6101
Geoffrey Vaki v. Matthew Damaru (2016) SC1523
Ross Bishop and Ors v. Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533

Counsel:

Mr. N. Gimaia, for the Plaintiff

30^th January, 2019

1. HARTSHORN J. This is a decision on an application for contempt of court orders. The application is made by the plaintiff, Paga Hill Development Company (PNG) Ltd, against the defendant, Joe Avapura Moses.

Background

2. The plaintiff claims that the defendant made statements within a film entitled, “Opposition” which impugn or breach one National Court order and two Supreme Court orders (subject orders). The subject orders were made concerning amongst others, the plaintiff’s ownership of land at Paga Hill, Port Moresby, National Capital District.

3. I permitted the hearing of the originating summons to proceed in the absence of representation of the defendant as I was satisfied that the hearing date and time of the originating summons had been brought to the defendant’s attention. This was by virtue of compliance with the order of this court that granted substituted service of the orders of this court dated 8^th September 2017.

Service of subject orders

4. The plaintiff seeks orders that amongst others, the defendant has impugned and or breached the subject orders and is guilty of contempt of court.

5. In the Supreme Court case of Ross Bishop and Ors v. Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533, Barnett J said at 545:

“To sustain an action for contempt of a court order there must be proof beyond reasonable doubt that it has been properly served “upon the alleged contemnor”:...... Mere technical service will not be sufficient as the major element of the offence is that it must be a wilful refusal to obey the order.”
6. I also refer in this regard to Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Ltd [2015] N6101 and Geoffrey Vaki v. Matthew Damaru (2016) SC1523.

7. In this instance, counsel for the plaintiff conceded that there was no evidence before the court that the defendant had been personally served with all or any of the subject orders.

8. As to the submission of the plaintiff that the defendant was well aware of the subject orders, in IPBC v. MVIL (supra) at [15], reproduced in Vaki v. Damaru (supra) at [61], I stated:

“.....it may be that a contemnor is aware that an order has been made particularly if he is a party to the proceeding in which the order is made. Similarly, it will likely be the case that a defendant will be aware generally of a claim to be made against him before he is personally served with either a writ of summons, originating summons or petition. Being aware of an order made, is not however, the same as being put on notice of the precise terms of an order, that if breached could result in serious consequences, such as imprisonment. It is in this context in my view, that the statement of Barnett J in Bishop (supra) as to proper service upon a contemnor, should be read.”
9. IPBC v. MVIL (supra) and Vaki v. Damaru (supra) were cases concerned with alleged breaches of court orders. To my mind, the above statement applies also to an application for a contempt order for the impugning of a court order as amongst others, the penalty, if found guilty of contempt in such circumstances, may be as severe as for a breach of a court order.

10. As there is no evidence of personal service upon the defendant of the subject orders, I cannot be satisfied beyond reasonable doubt that the defendant was so served or that he was made aware of the precise terms of the subject orders which he is alleged to have impugned and or breached. Consequently, the proceeding of the plaintiff should be dismissed. Given this it is not necessary to consider the other submissions of counsel.

Orders

11. It is ordered that:

a) This proceeding is dismissed;
b) No order as to costs;
c) Time is abridged.
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Liria Lawyers: Lawyers for the Plaintiff