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Evangelical Lutheran Church of Papua New Guinea v Unage [2021] PGNC 549; N9375 (12 November 2021)

N9375

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 817 OF 2018

EVANGELICAL LUTHERAN CHURCH OF PAPUA NEW GUINEA
Plaintiff

-V-

FELIX UNAGE
First Defendant

NFS CONSULTING
Second Defendant

Waigani: Kariko, J
2021: 9^th & 12^th November

CONTEMPT OF COURT –– Civil contempt - Disobedience of court order – Appeal filed against order – Stay of order refused

Cases Cited:

Ross Bishop and Ors v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533

Counsel:

Mr S Gor, for the Applicant/Plaintiff
Mr. F Unage, the Contemnor/First Defendant in Person

JUDGMENT ON VERDICT

12^th November, 2021

1. KARIKO, J: The contemnor is a lawyer who acted for the applicant/ plaintiff (“ELC”) through his business name NFS Consulting in respect of fees he claims is owed by the plaintiff for services rendered for a subdivision project in respect of land described as State Lease Volume 19 Folio 128 being for Portion 543 Milinch Erap, Fourmill Markham, Morobe Province (“the Property”).
   
2. Title to the Property has been in the custody of Mr Unage who refused to pass the relevant State Lease onto ELC until and unless he was settled his legal fees which he alleged was an agreed commission. ELC denied owing the fees and demanded the title deed. The dispute led to the filing of the proceeding WS No. 817 of 2018 in which ELC sought, among others, the delivery of the title deed to the Property.
   
3. At the hearing of the substantive dispute, her Honour Thompson J on 30^th July 2021 found for ELC and made the following orders. (“the Orders”):
   
   • (1) The first and Second Defendants are to deliver up the State Lease Volume 19 Folio 128 being for Portion 543 Milinch Erap, Fourmill Markham, Morobe Province, to the custody of the Plaintiff’s lawyers forthwith, and at the latest by 9.00 am on Monday 2^nd August 2021.
   • (2) The Defendant’s cross-claim is dismissed.
   • (3) In default of compliance with Order 1, the Plaintiff is at liberty to return to court and proceed with paragraph 2 of the relief sought in the statement of claim, for an award of damages to be made and assessed against the Defendants.
   • (4) The First and Second Defendants, jointly and severally, are to pay the Plaintiff’s costs on a solicitor/client basis, to be agreed or taxed
     
4. After 2^nd August 2021 had passed and the State Lease to the Property was not delivered to the plaintiff’s lawyers, the plaintiff filed a notice of motion on 23^rd August 2021 alleging contempt against the defendants together with the requisite statement of charge. It alleged that the defendant willfully disobeyed the first order of the Orders (‘Order 1”).

THE HEARING

5. The defendant Mr Unage pleaded not guilty to the contempt charge.
   
6. Both parties relied on filed affidavits in support of their respective cases which were tendered without objection and without calling the deponents.
   
7. The following relevant evidence disclosed by the affidavits is not in dispute.
   • When Thompson J issued the Orders, the contemnor and his lawyer were present in court and received a copy of her Honour’s judgment.
   • A sealed copy of the minute of the Orders was served on the contemnor’s lawyers on 19th August 2021.
   • On 23^rd August 2021, this contempt application was filed.
   • In the meantime, the contemnor filed an appeal in the Supreme Court against the Orders.
   • At the same time, the contemnor applied in the Supreme Court for a stay of the Orders pending determination of the appeal, but the application was refused on 8^th September 2021.
   • Two days later, the contemnor applied for stay of the Orders in the National Court, but I refused the application as an abuse of process.
   • The contemnor later filed another application in the Supreme Court to have the plaintiff make payment into court, which application is pending determination.
   • The contemnor has still not complied with Order 1.

RELEVANT LAW

8. Disobedience of a court order is what is termed as civil contempt of court. In Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533, the Supreme Court held that to succeed on a charge for such contempt, these elements must be proved beyond reasonable doubt:
   
   • (1) the order was clear and unambiguous;
   • (2) the order was properly served on the contemnor; and
   • (3) the contemnor deliberately failed to comply with it.
     
9. If any of these elements is not proved to the required standard, the charge cannot be sustained.
   

ARGUMENTS

10. The applicant argues that the charge against the contemnor is clearly proven on the unchallenged facts. The contemnor was aware of Order 1 which was in unambiguous terms, and which had been properly served on him, but he has deliberately failed to comply with it.
    
11. The defendant conceded that Order 1 has not been complied with but that was justified for two reasons:
    
    • (1) That the contempt application was filed prematurely – before the time period for appeal to the Supreme Court had lapsed.
    • (2) That the pending application in the Supreme Court should be first decided.
      

CONSIDERATION

12. The contemnor did not suggest that the elements of the charge have not been duly established, so I will only address his defence of justification.
    
13. The two arguments are simply untenable. Neither of them provides a lawful excuse for the contemnor to not comply with Order1. A lawful order of the court must be complied with unless and until it is stayed or set aside by a court of competent jurisdiction. The facts that an appeal and an application are pending in the Supreme Court does not justify the non-compliance.
    
14. The contemnor also cited s.62 of the Constitution (Decisions in “deliberate judgement”) in support of his defence, but this provision has no application in this case and is of no assistance to him.
    
15. In the circumstances, I find the defendant Mr Unage guilty of contempt as charged.
    

________________________________________________________________
Fiocco Nutley: Lawyers for the Applicant