N10021

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 209 OF 2021

BETWEEN:
ROSE PETER
-Plaintiff-

AND:
MOCHON PETER
-Defendant-

Waigani:  Tamade AJ
2022:  18th August & 4th November

JUDGMENT - parties previously husband and wife- contempt of court proceedings on previous Orders of the Court arrived at after mediation- Orders of Court ambiguous as parties intention not clear- Applicant has a duty to prove on the criminal standard of proof beyond reasonable doubt.

Cases Cited:

Daiva v Pukali, Ome Ome Forests Ltd v Cheong [2002] PGNC 61; N2289 
Tikuye v Haines [2009] PGNC 259; N4434 
Bishop v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533 

Counsel:

Ms Judy Nandape, for the Applicant
Mr Willard Steven, for the Contemnor

4th November, 2022

1.	TAMADE, AJ:  The Plaintiff and the Contemnor were previously married but are now separated. These are contempt proceedings filed by the Applicant seeking Orders for Contempt of Court on Orders of the National Court in proceedings described as OS No. 46 of 2021. In those proceedings, the Applicant herein sought orders against the Contemnor and Registrar of Companies for unlawfully removing her as a shareholder and director on the various companies owned by the parties.  There was a mediation held between the parties and the parties entered a mediation agreement which was converted into Consent Orders. The Applicant is therefore claiming that the Contemnor has not complied with the Consent Orders of 2 June 2021 entered in proceedings OS 46 of 2020 particularly terms 4 and 6 and that the Contemnor has refused to allow the Applicant to have access to their children who are with the Contemnor in Manus whilst the Applicant resides in Vanimo, West Sepik Province.

2.	The Consent Orders of 2 June 2021 in OS 46 of 2020 are as set out below:

The Court Orders by Consent that:

i.	That the Bank South Pacific shall transfer the balance of funds in the joint BSP bank account of Mochon and Rose Peter BSP account no. 100 111 1361 to Rose Peter’s personal BSP account no. 100 043 4150 and the joint bank shall be closed forthwith.

ii.	That the Bank South Pacific shall forthwith transfer currently held in the bank accounts listed below to the personal BSP account of Rose Peter account no. 100 043 4150 and a sum of K500.00 each shall be retained in the said accounts to keep them operational:

a)	Juromo Enterprises Limited		- 100 127 2862
b)	Juromo Wholesale			- 100 163 9459
c)	Juromo Hardware			- 101 155 4290
d)	Juromo Stationery 			- 100 119 7224
e)	Kingfisher Hire Car			- 101 295 7302

iii.	That the Bank South Pacific shall forthwith transfer the sum of K69, 382.88 from the Kingfisher lodge Bank account no. 700 729 2662 to the BSP Bank account of Rose Peter account no. 100 043 4150.

iv.	That the Second Defendant shall organise for the transfer of the ownership of the two motor vehicles described below and currently registered in the name of Kingfisher Hire Cars to the name of Rose Peter:

a)	Nissan Petrol registration no. LBT 828.
b)	Ford Ranger double cab registration no. LTB 797.

v.	That the Second Defendant shall pay a sum of K500,000.00 to the Plaintiff within a period of two years.

vi.	That the Second Defendant shall transfer his interest in the properties described as allotment 35, section 27, Vanimo, Sandaun Province to the Plaintiff to hold it as the sole proprietor.

vii.	That the Second Defendant shall transfer all of her interests in the properties listed below to Junior Mochon Peter so that the properties shall be conjointly owned by the Second Defendant and Junior Mochon Peter:

a)	Section 66, allotment 02, Lorengau, Manus Province
b)	Section 66, allotment 04, Lorengau, Manus Province
c)	Section 66, allotment 05, Lorengau, Manus Province
d)	Section 66, allotment 06, Lorengau, Manus Province
e)	Section 66, allotment 07, Lorengau, Manus Province
f)	Section 73, allotment 06, Lorengau, Manus Province
g)	Section73, allotment 07, Lorengau, Manus Province
h)	Section73, allotment 09, Lorengau, Manus Province
i)	Section 73, allotment 10, Lorengau, manus Province
j)	Section 73, allotment 11, Lorengau, Manus Province
k)	Section 73, allotment 12, Lorengau, Manus Province
l)	Section 73, allotment 13, Lorengau, Manus Province
m)	Section 73, allotment 22, Lorengau, Manus Province
n)	Section 73, allotment 23, Lorengau, Manus Province
o)	Section 73, allotment 24, Loregau, Manus Province
p)	Section 73, allotment 25, Lorengau Manus Province

viii.	That the four children of the marriage of the parties shall remain in Manus with Second Defendant and the Plaintiff shall freely communicate with them whenever she is able to but as for the children visiting in Vanimo will be subject to approval by Second Defendant.

ix.	That the following interim Court orders are set aside forthwith:

a)	Court order made on 21st September 2020 and filed on 2nd October 2020.
b)	Court order made on 21st September 2020 and filed on 9th February 2021.
c)	Court order made on 4th February 2021 and filed thereafter.

x.	That the contempt of court application filed against the Second Defendant by way of a notice of motion on 10th November 2020 is hereby withdrawn.

xi.	That the party shall bear their own cost of the proceeding.
xii.	That this proceeding hereby stands discontinued, and the Plaintiff shall file a notice of discontinuance of this proceeding with seven (7) days of this order.

xiii.	That the Plaintiff shall keep the Second Defendant indemnified from any future claim, suit of cause of action arising from the same circumstances set of facts that gave rise to these proceedings.

3.	It is the Applicant’s submission that the Contemnor has not complied with Term 4 of the Consent Order in that he has not given up possession of the motor vehicles and has refused to transfer ownership to the name of the Applicant.

4.	The Applicant has also submitted that Contemnor has not complied with Term 6 of the Consent Orders by not transferring his interest in the property described as Allotment 35, Section 27, Vanimo, Sandaun Province to the Plaintiff as the sole proprietor as agreed to.

5.	Mrs Peter in her Affidavit filed on 17 September 2021 states that on 9 June 2021, she flew into Manus from Lae with the intention of seeing her children whom she had not seen in two years and who were living with Mr Peter. Mrs Peter after arriving in Manus on the next day went to the Juromo company premises and saw the Operations Manager Mr Jeremiah Balik and told him to ask Mr Peter that she wanted to use one of the vehicles that was agreed to be given to her. She also told Mr Balik to inform Mr Peter that she wanted to see the children. Mr Peter then replied through Mr Balik to Mrs Peter that he would ship the vehicles to Vanimo to Mrs Peter so that she could use them there as agreed and that she could not see the children.

6.	Mrs Peter said in her affidavit that the two eldest children of the marriage, Junior Mochon and Meranda Mochon came to see her whilst she was in Manus however, she did not see the two younger children as they were living with Mr Peter and his new spouse. Mrs Peter later was informed by the two older children that they were scolded by Mr Peter for visiting Mrs Peter. Mrs Peter seems to suggest that Mr Peter was being difficult towards her by not honouring the agreement that both parties entered into. Mrs Peter then returned to Port Moresby on 12 June 2021.

7.	Mrs Peter states in evidence that she travelled back to Manus on 30 July 2021 and visited their eldest son Junior Mochon. She was informed by her son that Mr Peter was upset about her seeing their son. Whilst Mrs Peter was in Manus, she instructed her lawyers to tell Mr Peter to organize and give the subject vehicles to her in Manus so that she can organize to transport the vehicles to Vanimo however there was no response from Mr Peter. Mrs Peter then returned to Port Moresby and made efforts to have the title of the subject property transferred to her and conveyed this to Mr Peter through her lawyers. Mrs Peter basically states that she has not had any progress dealing with Mr Peter to transfer the subject vehicles of the marriage to her and the subject property that is in Vanimo and that she has made many attempts through her lawyers, Mr Peter is in contempt of not complying with the Orders of the Court and she insists that Mr Peter pay for indemnity costs of this contempt application as punishment.

8.	In a further Affidavit by Mrs Peter filed on 6 May 2022, Mrs Peter deposes that on 12 April 2022 at 10:15 am, the two motor vehicles described as Nissan Patrol Registration No. LBT 828 and Ford Ranger double cab Registration No. LBT 797 were released from Mr Peter to her relatives in Manus however at that time she was in Lae. Mrs Peter seemed to expect that Mr Peter would apologise for delivering the vehicles later than the date she expected, about 10 months she says from when the Court made the Consent Orders. I find that there is therefore compliance on Term 4 of the Consent Orders with possession of the subject vehicles now with Mrs Peters.

9.	The Contemnor Mr Peter has filed an Affidavit in response to the application for contempt against him. He has also appeared in Court at the hearing of the matter and gave evidence to support his defence.

10.	Mr Peter says that according to Term 4 of the Consent Orders agreed by parties, Mrs Peter had agreed that the vehicles would be shipped to her in Vanimo, and Mr Peter was not aware that Mrs Peter would want to use the vehicles whilst she was in Manus. This had created misunderstanding and distress on Mrs Peter. I see no reason why Mrs Peter would want to communicate with a third party or a middleman to get to Mr Peter. It is like a cat and mouse game even though they both have lawyers who can pick up a phone and communicate regarding their client’s issues.

11.	Mr Peter states that the delay in getting the two vehicles to Mrs Peter in Vanimo was because the vehicles were hired out on a long-term basis to clients of Kingfisher Car Rentals and therefore, he could not swap them for other vehicles. He also had to order spare parts for the wear and tear of the vehicles however this was affected by the Covid19 restrictions on regular shipping services. After Mrs Peter changed her mind to have the vehicles given to her in Manus and not shipped to Vanimo as agreed in the mediation, Mr Peter arranged for the vehicles to be given to her in Manus.

12.	Mr Peter gave evidence on the witness stand regarding the subject property in Vanimo that he has not returned to Vanimo since the breakdown of his relationship with Mrs Peter and important documents in regard to their various businesses and properties are in Vanimo in which he has to retrieve and settle the outstanding matters with Mrs Peter.

13.	In regard to the children of the parties in Manus, Mr Peter states in evidence that he was not aware that Mrs Peter was in Manus, nor was he informed by her that she was there to see the children. After their teenage son Junior Mochon visited his mother, Mrs Peter, their son came home distressed and when queried by Mr Peter, Junior Mochon swore at his father. Mr Peter was shocked and in disbelief that his son would react disrespectfully to him as he had never behaved like that toward his father. Mr Peter has taken care of all the children for about two years since the separation. This made Mr Peter cautious not to have Mrs Peter see the children as he felt her influence on them was detrimental to their wellbeing.

Is Mr Peter in contempt of Court of the Consent Orders of 2 June 2021 in OS 46 of 2020?

14.	Justice Kandakasi (as he then was) in the case of Daiva v Pukali, Ome Ome Forests Ltd v Cheong   expressed this in relation to the definition of contempt of Court:

The law on contempt of Court is quite clear. Contempt of Court has been long defined as:

"A contempt is in disobedience to the Court, or an opposing or despising the authority, justice or dignity thereof. It consists in a party’s doing otherwise than he is enjoined to do, or not doing what he is commanded to do or required by the process, order or decree of the Court ..."

This definition was given by Patterson J. in his judgement in the House of Lords in Miller v. Knox [1838] EngR 648; (1838) 4 Bing NC 574; 6 Scott 1; 132 ER, 910, who cited the definition given in the Practice Register (Chp. 8.), pp. 133 and 134.

This definition is repeated by many authorities, which includes Halsbury’s Law of England (4th Ed) Vol. 9 at paragraph 52. They speak of such disobedience being either a refusal or neglect to do an act required by a judgement or order of the Court within the time specified in the judgements or order.

Such authorities go on to provide, that the penalties for contempt of Court in the case may subject to certain exceptions, be enforced by an order of committal or by a writ of sequestration against the individual’s (or company/corporation’s) property.

There is also clear authority such as that of Re Sheppard and Sheppard [1976] DLR (3d) 592 supporting the proposition that:
"In order to establish a contempt, it is necessary to prove that the defendant intended to disobey or flout the Order of the Court. The offence consists of the intentional doing of an act or not doing of an act which is in fact prohibited by or ordered to be done by the Court."

It follows therefore that, in order for there to be contempt of Court and therefore punishable by committal or sequestration, the conduct amounting to contempt involves a degree of fault or misconduct. Thus, accidental and unintentional disobedience is not sufficient: See Halsbury’s Laws of England Vol. 9 para 53 at p.34.”

15.	In the case of Tikuye v Haines, Justice Makail referred to the law on contempt of Court which was laid by the Supreme Court in Bishop v Bishop Bros Engineering Pty Ltd  as follows:

 In proceedings for contempt of court for failing to obey a court order,

(a)	the court order must be clear and unambiguous;

Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 and P A Thomas & Co v Mould [1968] 1 All ER 963, followed.

(b)	the order must have been properly served upon the alleged contemnor so that he has knowledge of the terms of the order;

Ronson Products Ltd v Ronson Furniture Ltd [1966] 2 All ER 381 and Biba Ltd v Stratford Investments Ltd [1972] 3 All ER 1041, followed.

(c)	failure to obey the terms of the order must be wilful; and

(d)	the standard of proof is proof beyond reasonable doubt.

16.	It is the criminal culpability involved in contempt of Court that the standard of proof is on the criminal standard which is proof beyond reasonable doubt and that the disobedience of the Orders of the Court must be willful. It is also an element of contempt that the Court Order must be clear and unambiguous so that the person whom the Order is directed against has no misunderstanding in order to act accordingly as the Court Order dictates.

17.	I find in this matter that the Court Orders of 2 June 2021 in OS 46 of 2020 are ambiguous in terms of Term 4 and 6 in which Mrs Peter claims that Mr Peter has not complied with. These were consent orders arrived at after mediation between the parties and therefore it expressed the party’s own intention. Perhaps all the parties’ intentions were not captured in the final outcome of the Consent Orders causing misunderstanding between the parties. On the one hand, Mr Peter understood Mrs Peter’s intentions at the mediation to mean that she wanted the vehicles shipped to her in Vanimo however Mrs Peter changed her mind and wanted to have the vehicles whilst she was in Manus. We are talking about a relationship between Mr and Mrs Peter which has gone sour and bitter and therefore as is always the residual aftermath of such relationships where none of the parties want to be forthright, one party wants to exert the control over their assets and sadly over children and in this case, the conduct of Mrs Peter, in this case, is to use these proceedings to whip Mr Peter into obedience so to speak so that she can get an upper hand, beat Mr Peter to this game of frustration, the ending of a relationship is never easy and children sadly bear the consequences unless parties look past their grievances and selflessly protect and shield their children to walk through the difficult times of separation. No one does it better, no one does it right, but there is always room to be civil and redeem oneself in the best interest of the children regardless of the ending of a marriage or relationship. I find that the bitterness between Mr and Mrs Peter has caused both of them to point the finger at each other.

18.	As to the Court Orders, I am satisfied that there was some compliance by Mr Peter notwithstanding that there is also ambiguity in the Orders as to when certain things were to happen, there is no time period captured in the orders and it may come down to the poor drafting of the Orders which did not capture the full intention of the parties and or, be that as it is, the Orders remain ambiguous in my view.

19.	I also find that assessing the conduct of Mr Peter, there was no wilful disobedience of the Consent Court Orders. Mr Peter appeared before me on the witness stand and I observe him to be truthful. He answered questions from the Court as to the delay in transferring the subject property in Vanimo to Mrs Peter saying those records are in Vanimo where I take it the parties previously cohabitated, and he is yet to travel to Vanimo and retrieve those important documents.  There is no time frame stipulated in Term 6 of the Orders as to when the transfer of that property is to happen and therefore, I find no wilful disobedience on the part of Mr Peter.

20.	The Applicant has therefore not met the standard of proof in this matter.

21.	I, therefore, dismiss the application for contempt of Court against Mr Peter.

22.	There is no need for the Court to consider the submissions by Ms Nandape for the Applicant that an award of damages be made in favour of the Applicant to compensate Mrs Peter for depriving her for the use of the two vehicles as this is baseless.

23.	The Court, therefore, makes the following orders:

i)	These proceedings are dismissed in their entirety.

ii)	The Applicant Mrs Rose Peter shall meet the costs of the alleged Contemnor, Mr Mochon Peter, to be taxed if not agreed.

Orders accordingly.
________________________________________________________________
Nandape & Associates:  Lawyers for the Plaintiff 
Taito Lawyers: Lawyers for the Contemnor