N8934
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 832 OF 2016

MARCELLA HASIFANGU
Plaintiff

AND:
MARK MAULUDU IN HIS CAPACITY AS CHIEF EXECUTIVE OFFICER OF BORAM GENERAL HOSPITAL
First Defendant

AND:
PASCOE KASE IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF HEALTH
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 16th June, 14th July 

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Dismissal No reasonable cause of Action – Frivolous vexatiousness – Abuse of Process – Order 12 Rule 40 NCR – Competency of Proceedings – Contempt  – Service Of Personal  Order 14 Rule 45 – Order Relied Unclear Ambiguous – Orders Not Directed at Secretary for Health – Materials relied insufficient – Motion upheld – cost follow event.

Cases Cited:

Vaki v Baki [2014] PGNC 21; N5612 
Vaki v Baki [2014] PGNC 35; N5507 
Bishop v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533
Liriope v Usurup [2009] PGNC 2; N3572 
Manase v Opa [2013] PGNC 94; N5280 
Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 
Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905 
Kelo v Ipu [2020] PGSC 92; SC2003 

Counsel:

J. Napu, for Plaintiff
A. Nasu, for Defendant
					RULING 
 14th July, 2021
1.	MIVIRI, J: This is the Ruling on the third defendant’s notice of motion pursuant to Order 12 Rule 40 of the National Court Rules, “the Rules” to strike out and dismiss this proceeding on the basis that no reasonable cause of action is disclosed. Further the proceedings are frivolous and vexatious and are an abuse of the process of the Court. 

2.	The motion is supported by the affidavit of Dr. Osborne Liko sworn of the 04th June 2021 filed the 07th June 2021. In it he deposes that, he is the Secretary of the Department of Health now. And is not a party to the proceedings now the subject of this Court Order though he is the current occupant of that position. Both Court Orders firstly of the 13th February 2019 and then of the 14th September 2020 have not directed him personally per se. They are directed at the CEO of the Boram Hospital, which is also a State entity created by the Public Hospital Act 1994. And by section 6, sections 31, and 32 of that Act, they can be sued, sue, and can have funds of the Board of the hospital either from grants, fees and charges imposed for the provision of medical services, patient accommodation and services, and sums it receives as loan or gifts in the course of the exercise of its functions under that Act. It shall be paid moneys out of the Consolidated Revenue fund such moneys as are allocated for its purposes.

3.	He deposes that, “The plaintiff and her Lawyers did not personally serve on me any court documents for the contempt application before the application was filed on the 27th April 2021. I did not receive any proof of service of the documents for contempt. On the 9th December 2020, Napu & Company Lawyers served on the National Department of Health at Waigani a Court Order dated 14th September 2020.” It is annexure “A”. “On the 18th February 2021, Napu & Company Lawyers served two court orders dated 13th February 2019 and 14th September 2020.” Both are annexure “B” and “C” of the affidavit.

4.	He continues, “On the 01st June 2021, the service of the documents constituting the purported contempt proceeding was attempted outside the Court on 01.06.21 following the hearing of the matter. The action of the lawyer-John Napu was improper and unprofessional. The Court Order of the 13th February 2019 is fully complied to and I seek leave of the Court to rely on Mr. Cletus Bon’s affidavit filed on the 10th May 2021 to proof compliance. 

5.	The Court Order of 14th September 2020 in terms of compliance in not specifically directed at me. I have been unnecessarily summoned for contempt when there is no specific order directing me to act or comply with any of the court orders. I pray to this Honourable Court to dismiss the contempt proceedings against me.”

6.	Annexure “A” is the court order of the 14th September 2020. It awards general, exemplary, and special damages in the matter to the total sum of K 354, 666. 02. It is ordered of the 14th September 2020. The parties in the proceeding are as set out above. Annexure “B” is a letter addressed to the Deponent Dr. Osborne Liko as Secretary of the Department of Health and drawing out the court Orders of the 13th February copy attached concerning reinstatement of the plaintiff. And of the fact that the order has not been complied with. And drawing that the Department of Health is vicariously liable and compliance of the court order rests with the office of the deponent as Secretary the head of that Department. On that basis tasking payment of the Judgement sum of K 354, 666. 76. And reinstatement of their client the plaintiff to her rank without loss of salaries entitlements less those addressed in damages, court order of the 13th February 2019. That there has been substantial lapse of time without heed of the orders made by the court. The letter is by Napu & Company Lawyers for the plaintiff.
 
7.	Annexure “D” is a letter under hand of the deponent Dr. Osborne Liko, John N Napu Principle Napu & Company Lawyers for the Plaintiff. It is in response to the letter of the 18th February 2021 by Napu & Company Lawyers. The letter address that, “The Provincial Health Authority Act 2007 (as amended 2013) creates the Provincial Health Authorities which provide for the delivery of curative services and public health services from Provincial Health Authorities (PHA) and provide for other related matters in the provinces including NCD. 

8.	Under this Act, the administration, personal management, finance, and other necessary functions are transferred to the Provincial Health Authorities who manage their own affairs. This matter now will fall back to the East Sepik Provincial Health Authority to deal with it by either giving effect to the National Court Orders or seeking further legal advice. Should you have any queries you may contact our legal Officer Mr. Steven Jilawara on 301 3626 or jilawaram@gmail.com.” It is signed by Dr Osborne Liko as the Secretary of the National Department of Health.

9.	Other evidence that are relied by the State defendants include the affidavit of Dr. Osborne Liko of the 06th May 2021 filed of the 10th May 2021. Also, the affidavit of one Cletus Bon sworn as dated and filed on same date. There are four affidavits of service deposed to by Lavau Vanua firstly of the 28th May 2021 then of the 31st May 2021 another of the 11th May 2021 and another of the 08th May 2021.

10.	Cletus Bon’s affidavit material sets out that he is currently the Acting Chief Executive Officer of the East Sepik Provincial Health Authority. He was appointed after then CEO Mark Mauludu fell ill and went out of the province to seek medical treatment. Annexure “A” is circular issued from the office of the Board Chairman of East Sepik Provincial Health Authority appointing me to that position. On the 03rd May 2021 we received an urgent message from the Office of the Solicitor General to give instructions regarding this case OS (JR) 832 of 2016 Marcella Hasifangu v Mark Mauludu, Pascoe Kase, and the State. “The plaintiff (Marcella Hasifangu) is a public servant and nursing officer currently working on a grade 13 position-ESPHACH 180 PHAESOO317 Ward Manager Paediatric HLTN PS13 at East Sepik Provincial Health Authority (Boram Hospital). She was put to that position following the substantive court Order dated 13th February 2019.

11.	When Court Order (13th February 2019) came out, the Quality Assurance Officer- Grade 13 position was won by someone else and there was no grade 13 position available until early last year 2020 when Sr. Scholastica Kapari the Ward Manager Paediatric resigned. That was when she was given that grade 13 position. And annexure “ B1” & “B2” are copies of the record from the Nursing directorate and human resources office of grade 13 ward Manager Paediatric Position and the Employee Occupancy detail. “Due to the new integrated Financial Management System (FMS) in place the calculation and payment of the Plaintiff’s lost salaries and entitlements and other emoluments were paid out to the Plaintiff through cheque of K 57, 078.00. Annexure “ C1” & “C2” are copies of the cheque payment raised and the payment register registering the date she picked up the cheque payment of K 57, 078.00.

12.	After receiving the substantive order, we have not been able to obtain the copy of the second order dated the 14th September 2020 though we did our best to try to obtain it. And annexure “ D1” & “D2” are copies of the email where the East Sepik Provincial Health Authority Lawyer following up on the second order. The plaintiff is working with us and is currently on furlong leave which she will resume duties on the 15th June 2021. And annexure “E” is a copy of the leave booking display from the Human Resource Office of the East Sepik Provincial Health Authority.”

13.	On the basis of this evidence the defendants contend that the application for contempt has no reasonable cause of action, is frivolous vexatious and abuse of the process of court. And therefore, should be dismissed with costs.

14.	The argument is based on the evidence of the plaintiff’s affidavit of service deposed to by one Thomas Barry of the 06th May 2021 Legal Clerk of Napu & Company Lawyers who deposes that, “On the 05th May 2021 at 2.17pm, I served upon the contemnor Dr. Osborne Liko, which was received by a Fredolina Simbagi who identified herself to be the Admin Assistant at the Secretary’s office on the top floor of Aopi Centre, National Department of Health, Waigani, NCD the following document; (1)	Letter dated 04th May 2021 advising the Contemnor of the adjournment date of 17th May 2021.”Annexure “A” is a copy of that letter and “B” is the acknowledgement of service form.

15.	It details out as to what documents are served, and upon who at what location, and on what date the service takes place, who receives what on what time and date receipt is made. The person receiving also signs the document acknowledging receipt and designation of the person. It is counter signed in this case by Thomas Barry who serves the document.

16.	In this instant it is a letter that is served dated the 04th May 2021 advising about the adjournment of the court. The place it is served is National Department of Health (NDOH) Waigani date is 05 May 2021 time is 2.17pm and person receiving is Fredoline Simbago Admin Assistant and she signs acknowledging.  The subject letter of the 04th May 2021 is in the following terms, “Application for contempt of Court-OS (JR) No. 832 of 2016-Marcella Hasifangu v Mark Mauludu & ors. This matter was returned for mentioned yesterday 03rd May 2021; wherein, the Solicitor General sought adjournment, for reason that, you did not issue instructions to them. We inform you now that the matter is adjourned to the 17th of May 2021 at 9.30am. You may now instruct your lawyers should you wish to defend the cause. You are also at liberty to comply with the Court Orders, should you wish to avoid, taking unnecessary risk of being imprisoned. We inform you accordingly. Thank you. Yours faithfully John N Napu Principal.”

17.	This is the same in each case reliance is placed on the affidavit of Thomas Barry from affidavit of the 28th May 2021, in both cases the acknowledgement form is by Fredolina Simbago, there is service on her, but not personally on the alleged contemnor Dr. Osborne Liko in person. The rules of Court under Order 14 Rule 45 is clear, “The notice of motion or summons, the Statement of charge, and the affidavits shall be served personally on the Contemnor.” This is very clear because of the grave consequences that foretell and emanate from contempt proceedings: Vaki v Baki [2014] PGNC 21; N5612 (13 June 2014). The Commissioner of Police Sir Toami Kulunga was imprisoned for 7 months each on three counts of Contempt of Court by the National Court here in Waigani. Service is therefore personal as opposed to on a secretary of the Commissioner of Police, Vaki v Baki [2014] PGNC 35; N5507 (21 February 2014), which was held to be not service personally on the alleged contemnor. And this has been also observed in civil contempt: Bishop v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533.

18.	In this regard the order that is supposedly breached must be clear. It must not be ambiguous, here is an order that is to the Chief Executive Officer of the Boram General Hospital and Pascoe Kase in his capacity as Secretary of the Department of Health. The incumbent is Dr. Osborne Liko who has not been served personally so that the matter is in court for all intent and purposes. The evidence set out above in detail is very explicit and clear, he has not in any iota of that rule served personally and therefore discharging. Because he is not the subject personally but is incumbent and therefore arguably placed. It is primary to personally serve. Without which there is no cause of action before the Court against him. The procedure is explicitly set out by the Rules of Court from Order 14 Rule 42 for obvious reasons and it is not just to be pursued without clear observations.

19.	In the case presently that is not detailed out, and so it would be erroneous to forfeit that the allegation has been served, and the alleged contemnor must be sequenced with the consequences flowing. The order itself is by the evidence set out above per, the affidavit of Cletus Bon Acting Chief Executive Officer of the East Sepik Provincial Health Authority given heed to. It is against that officer in the first place and secondly against the Secretary National Health Department then, Pascoe Kase. It is therefore not a submission of law that will entail for the application and invoking of contempt. It is not a light matter and cannot be taken with laxity. It is against the State and its agencies Departments and therefore ought to be properly drawn out in consequence to. And section 14 of the Claims by and Against the State Act 1996 is very clear, there is no certificate to implore and plead that contempt be sourced from. It is not a certificate of Judgement due and owing. There is yet process to be followed so that all avenues have been exhausted to lump into a contempt proceeding. Clearly to pursue would be falling more into error than heeding by the law. Here is a court of equity, and before equity is fountained, he who implores must of the same accord, that is not in the case of the plaintiff. Equity does not lie given.

20.	What is pleaded here do not come on all fours with Liriope v Usurup [2009] PGNC 2; N3572 (27 January 2009) or Manase v Opa [2013] PGNC 94; N5280 (31 July 2013) in both cases the orders were clearly served personally and therefore the entailment of contempt against those who were clearly identified apart, because it is criminal in nature with imprisonment drawing. It is not a light matter and abuse of process lies where it is not served. And follows where there is no cause of action disclosed by that fact: Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008).

21.	The other side of the balance is that dismissal of the entire proceedings denotes denying the litigant from the Judgement seat. Here I have closely and carefully weighed out the facts illuminated by the evidence as particularized above and notably the Supreme Court in Kerry Lerro trading as Hulu Hara Investments limited v Philip Stagg, Valentine Kambori and the Independent state of Papua New Guinea, in Takori v Yagari [2007] PGSC 48; SC 905 (28th February 2007), states: “our Judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.” The aggregate totality is that this is an action that has been prematurely taken the mile for contempt because it is not as if nothing has been done about the court orders in the authorities set out above. There have been progressive developments made by the lead defendant set out by the evidence of Cletus Bon Acting Chief Executive Officer of the East Sepik Provincial Health Authority. For the insistence upon Dr. Osborne Liko is premature and would amount to harassment. This is no ordinary defendant; it is the State of Papua New Guinea comprising 8.5 million people through the authorities Departments of Government one of whom is pursued by an individual citizen. It ought to be with justice fairness and equity.

22.	What is clear is that Dr. Osborne Liko is not personally derivative of the orders at first instance. He is the incumbent but even then, the East Sepik Health Authority has taken responsibility to carry out the first step in trying to pay K 57, 078.00. received by the plaintiff already. The balance is now what remains not by Certificate of Judgment but by good governance and faith. And implementation of section 6, 31, 31 of the Public Hospitals Act 1994 has been seen out here. There is no extreme disobedience against a court order in the sense of Vaki v Baki N5612 (supra) here. What the sum is, is that there is no reasonable cause of action disclosed. It is unattainable in its present form. And would not be erroneous to dismiss following Kelo v Ipu [2020] PGSC 92; SC2003 (24 September 2020). It is a frivolous and vexatious action as it will not be attained in given all set out above.

23.	The motion of the State is granted in full and the proceedings are dismissed pursuant to Order 12 Rule 40 of the National Court Rules as disclosing no reasonable cause of action, frivolous and vexatious, and in total an abuse of process with costs forthwith. 

24.	The formal orders of the court are:

(1)	The application of the defendants is upheld.
(2)	The matter is dismissed forthwith pursuant to Order 12 Rule 40 of the National Court Rules.
(3)	Costs will follow the event against the plaintiff.
Orders Accordingly.
__________________________________________________________________
Napu & Co Lawyers: Lawyer for the Plaintiff/Applicant		
Office of the Solicitor General: Lawyer for the Defendants