N10789
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 34 OF 2023

BRIAN ANTHONY HULL
Applicant

V

KIEEH KENDEKALI
First Respondent (Contemnor)

NELSON MANKI
Second Respondent (Contemnor)

JUNIOR WAKA
Third Respondent (Contemnor)

Waigani: Cannings J
2024: 15th March, 4th April, 6th, 10th May

PRACTICE AND PROCEDURE – CONTEMPT – objection to competency of contempt proceedings – objection made orally in closing submissions in a trial of contempt of court charge – requirement for personal service of notice of motion, statement of charge and affidavits, National Court Rules, Order 14 rule 45.

During closing submissions at the trial of a charge of contempt of court, counsel for one of the contemnors made an oral objection to competency of the contempt proceedings on the ground that Order 14 rule 45 of the National Court Rules, which requires personal service of the notice of motion, statement of charge and affidavits on contemnors, had not been complied. The facts were that the Court had ordered that service of documents on the contemnors’ lawyers was sufficient but that order was made without an express dispensation of the requirements of service, and it was not an order for substituted service under Order 6 rule 12 of the National Court Rules. This is the Court’s ruling on the objection to competency.

Held:

(1)	Order 14 rule 45 of the National Court Rules requires personal service on a contemnor of the notice of motion, statement of charge and supporting affidavits.

(2)	For the requirement of Order 14 rule 45 not to apply, it is necessary for the Court to make an express order dispensing with the requirements of the Rules or allowing substituted service under Order 6 rule 12.

(3)	Here, the requirement of Order 14 rule 45 was not avoided, and the requirement was not complied with.

(4)	The objection to competency was upheld.

(5)	The parties were ordered to bear their own costs as the objection to competency was made orally, very late (at the end of submissions on verdict) and without notice to the applicant. 

Cases Cited

Chung v Daniels (2015) SC1503
Hasifangu v Mauludu (2022) SC2256
Modowa Trevor Gumoi v Gull Gorgum (2016) SC1520
Re the Honourable Julie Soso Akeke MP (2016) SC1519 
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533 

Counsel

K Kulip, for the Applicant 
D Kipa, for the First Respondent (contemnor)
L Dos, for the Second Respondent (contemnor)

10th May 2024

1.      CANNINGS J: During closing submissions at the trial of a charge of contempt of court against three contemnors, counsel for the first contemnor, Mr Kipa, raised orally an objection to competency of the contempt proceedings. He argued that Order 14 rule 45 of the National Court Rules, which requires personal service of the notice of motion, statement of charge and affidavits on contemnors, had not been complied with as there was only proof of service of those documents on the contemnors’ lawyers. 

2.     I am using the term ‘contemnor’ to describe the respondents to the proceedings, in accordance with Order 14 rule 37 of the National Court Rules, which provides that “contemnor” means a person guilty or alleged to be guilty of contempt of the court. 

3.     I have decided to rule on the objection before addressing the substantive matter on which submissions were made, which was whether any of the three contemnors are guilty of contempt for disobeying the order of 4 January 2024 I made in these proceedings. The order stated amongst other things:

2.	Pursuant to Order 12 Rule 1 of the National Court Rules and the inherent jurisdiction of the Court, the first, second and third respondents shall, at their own expense, return to the applicant at his business premises at Level 3, Section 35, Lot 51, Kunai Street, Hohola, in good order and condition every item of property removed by them and their agents from the applicant’s premises on 20 December 2023, including without limiting the generality of the foregoing, the property described in paragraph 2(a)(i) to (xxxiv) of the notice of motion of the applicant filed 3 January 2024 and such item shall be returned by 5.00 PM tomorrow, 5 January 2024.

4.    The respondents allegedly failed to comply with that order. On 10 January 2024 the applicant’s lawyers filed a notice of motion and supporting affidavit and a statement of charge for contempt of court alleging that the respondents had disobeyed the order of 4 January 2024.

TRIAL

5.     The trial of the charge of contempt of court commenced on 15 March 2024. The first and second respondents were in court and pleaded not guilty. The third respondent Junior Waka was neither present nor legally represented. The trial proceeded in his absence as I was satisfied that he had been given due notice of the trial. The applicant, Brian Anthony Hull, gave oral evidence and was subject to cross-examination. Two affidavits of Mr Hull were admitted into evidence and the applicant’s case was closed.

6.    On 4 April 2024 no-case submissions were made on behalf of the first and second respondents, which I refused. The contemnors remained silent. Then the trial was adjourned for submissions.

7.     On 6 May 2024 written and oral submissions were made by Mr Hull’s counsel, Mr Kulip, and then by counsel for the first contemnor Mr Kipa and counsel for the second contemnor Mr Dos. Submissions of counsel addressed whether the applicant had proven the three elements of the disobedience sort of contempt with which the contemnors had been charged:

•	that the order of 4 January 2024 was clear and unambiguous;
•	that the order was served on the contemnors;
•	that the contemnors had deliberately disobeyed the order (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533, Re the Honourable Julie Soso Akeke MP (2016) SC1519, Modowa Trevor Gumoi v Gull Gorgum (2016) SC1520).

8.    Mr Kipa and Mr Dos also argued that the charge of contempt laid against the contemnors was defective (due inter alia to its alleged failure to plead particulars of the property referred to in the order of 4 January 2024 and the property returned by the contemnors on 10 January 2024). 

9.     Mr Kipa, after addressing the elements of the charge and the alleged defects in the charge, then raised, as his last point, objection to the competency of the proceedings.

OBJECTION TO COMPETENCY

10.    The objection is based on non-compliance with Order 14 rule 45 of the National Court Rules, which states:

The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.
 
11.    It is agreed that personal service of the notice of motion and statement of charge and affidavits was not effected on the contemnors. The reason for that is that I ordered on 2 February 2024 that service of documents on the contemnors’ lawyers was adequate, ie that personal service was not required. 

12.   In such circumstances is the failure to comply with Order 14 rule 45 a matter of jurisdiction that renders the contempt proceedings incompetent?

13.     I am persuaded by the submissions of Mr Kipa and the authority of two Supreme Court decisions he relied on – Chung v Daniels (2015) SC1503 and Hasifangu v Mauludu (2022) SC2256 – that the answer is yes. 

14.    Personal service of the documents in accordance with Order 14 rule 45 is a mandatory requirement, which can only be dispensed with by an order of the court which expressly dispenses with that requirement of the Rules or which authorises substituted service of the documents under Order 6 rule 12 of the Rules.

15.    Though the order of 2 February 2024 was that service on the contemnors’ lawyers is adequate there was no express dispensation with the requirement of personal service and it was not an order expressed to be under Order 6 rule 12.

16.    If it were not for the binding authority of those two Supreme Court decisions, I could easily be persuaded that the order of 2 February 2024 was sufficient to dispense with the requirements of personal service in this case. However the Supreme Court stressed, particularly in Chung, that failure to comply with Order 14 rule 45 was something that deprives the Court of jurisdiction. 

17.     I am bound to find that in this case the contempt proceedings are incompetent.

COSTS

18.     Normally the party that succeeds with an objection to competency would be awarded costs of the proceedings. Here, however, I will allow the parties to bear their own costs as the objection to competency has been made orally, very late (at the end of submissions on verdict) and without notice to the applicant. 

ORDER

1.	The oral objection to competency of the proceedings as to contempt of court commenced by the notice of motion filed by the applicant on 10 January 2024 is upheld.
2.	Those proceedings are incompetent.
3.	The notice of motion filed by the applicant on 10 January 2024 is dismissed.
4.	The parties shall bear their own costs of the contempt proceedings. 

__________________________________________________________________
Emergent Lawyers: Lawyers for the Applicant
Wang Dee Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent