N11567

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 106 OF 2023

BETWEEN
WAMBI NONDI, LASA MAINU, GIBS SIRI
& PETER YAMUNA
Plaintiffs

AND
HON. WILLIAM POWI - GOVERNOR FOR
SOUTHERN HIGHLANDS PROVINCE
First Defendant

AND
JOSEPH KUNUKUNU, JACK KIPOI,
FRANCIS WALIPA, JACOB IKI
Second Defendants

AND
LEO VALI – SOUTHERN HIGHLANDS
PROVINCIAL ASSEMBLY CLERK
Third Defendant

AND
JERRY DAVID – ADMINISTRATOR,
SOUTHERN HIGHLANDS PROVINCE
Fourth Defendant

MT HAGEN: CROWLEY J
JULY, 20 OCTOBER 2025
	
PRACTICE AND PROCEDURE – Contempt of court – objection to competency– whether plaintiff must serve properly minuted order- whether nonparties can alleged contempt- whether rules relating to contempt of court are comprehensive- whether rules relating to contempt of court must be strictly complied with- whether a declaration or can found a charge of contempt of court– objection to competency denied – National Court Rules, Order 1 Rule 8, Order 12 Rule 18 to 23 and Order 14 Rules 37 to 50. 

Cases cited

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 
Gaman Holdings Ltd vs Labu Holding Pty Ltd (2000) N2016.
Iveson v Harris (1802) 7 Ves.Jun. 251. 
Koim v ONeill (2016) N6198.
Kwimberi v The State (1998) SC545.
Nondi v Powi [2023] PGNC 499; N10666.
PNG Power Ltd vs Registrar of the National Court (2013) SC 1335.
Robinson vs The State [1986] PNGLR 307.
Seaward v Pasterson [1897] 1 Ch. 545. 
Tato v Akunai [2016] PGSC 29.
Tzen Pacific Ltd vs Innovest Ltd [2014] PGNC 110; N5716
Webster vs Southwark London Borough Council [1983] QB 698
Wereh v Cajetan [2019] PGNC 406; N8086.

Counsel

D Gonol, for the plaintiffs
A Baniyamai, for the first defendants
L Tangua, for the second defendants
H Nii, for the third defendant
No Appearance by fourth defendant

JUDGMENT

1.	CROWLEY J: 	This is an objection to the competency of an Originating Summons charging the defendants with contempt of court. It is alleged the Defendants disobeyed an order of the National Court. It is not disputed that the actions of all the Defendants were in contravention of Justice Makail’s orders in Wereh v Cajetan [2019] PGNC 406; N8086 (Wereh v Cajetan No 1). The allegation is that the defendant’s actions were deliberate and wilful. 

2.	This judgement considers the Third Defendant contention that the litigation is incompetent and should be dismissed for failure to follow the proper procedures set out in the National Court Rules. 

Background

3.	It is useful to understand the background that gave rise to the contempt proceedings. 

4.	After the Local Level Government elections of July 2019, there were two meetings to elect LLG presidents for the Ialibu Pangia District. One meeting was organised by the District Administrator Samson Wereh and was held on 7 August 2019 at Ialibu Government Station. At that meeting the Plaintiffs were elected LLG presidents.

5.	The second meeting was organised by the Acting Provincial Administrator Mr Joseph Cajetan and occurred on 14 August 2019 in Mendi. The Second Defendants were elected LLG Presidents at that meeting. 

6.	That resulted in litigation instituted by the District Administrator after he was suspended for organising the first meeting. In Wereh v Cajetan No 1, Justice Makail declared “... any election conducted in Mendi for the Local-level Governments for Ialibu Pangia District is illegal, null and void ab initio”. 

7.	The Governor of Southern Highland the Honourable William Powi (First Defendant) recognised the Second Defendants as President of their LLGs and allowed them to sit in the Provincial Assembly. The Third Defendant was Leo Vali the Southern Highlands Provincial Assembly Clerk. The Fourth Defendant Jerry David was the Provincial Administrator.

Procedural History

8.	On 11 May 2023 the Plaintiffs eventually commenced an action for contempt of court. On 13th September 2023 the Defendants brought a Notice of Motion pursuant to Order 12 Rule 40 (1) of the National Court Rules seeking to have the Plaintiffs’ proceedings be dismissed for not disclosing a reasonable cause of action, being frivolous, vexatious and an abuse of process. 

9.	 That came on before Justice Toliken. At that hearing the First, Third and Fourth Defendants were represented by Mr. A Baniyamai, of Baniyamai Lawyers.

10.	 On 8 December 2023 his Honour dismissed the defendants Notice of Motion (see Nondi v Powi [2023] PGNC 499; N10666 para [22] to [39]).

11.	 On 10 February 2025 Baniyamai Lawyers filed a Notice of 
Ceasing to Act (Doc 54) for the Fourth Defendant. The matter next came on before Justice Carmody on 7 March 2025 and the trial dates of 17 and 18 March were subsequently vacated. 

12.	 As late as 2 June 2025, Baniyamai Lawyers were still acting for the Third Defendant (see Notice to Cross Examine Deponents Document 57).

13.	 Finally, the matter came on before me for hearing on 21 July 2025. Despite no Notice of Ceasing to Act having been filed, the Third Defendant had separate representation; Mr H. Nii of Harvey Nii Lawyers. Without having filed anything, Mr Nii brought an application for objection to competency. He handed up lengthy written submissions. The Plaintiff raised no objection to the Third Defendant having a second attempt to have the matter summarily dismissed. 

14.	 I heard the Third Defendants’ submissions. The First, and Second Defendants made oral submissions in support of the Third Defendants’ objection. I reserved the matter for considerations. 

15.	 The Fourth Defendant did not appear on 21 July 2025. I issued a warrant for his arrest. On 24 July 2025 he appeared represented by S. Ifina Lawyers and I made orders in relation to the filing and serving of his material. 

Third Defendants Submissions on Objection to Competency

16.	 The Third Defendant’s arguments on the Objection to Competency are twofold: 

(a)	First, that the Plaintiffs are trying to enforce a judgment not an order. It is contended the Plaintiffs must serve on the Defendants a proper minute order. They have not. This, it was argued is a breach of Order 12 Rule 18 to 23 of the National Court Rules; 

(b)	Second, that the Plaintiffs are in breach of Order 14 Rule 42(1) because they were not parties to the original proceedings therefore they cannot bring these proceedings. 

Breach of Order 12 Rule 18 to 23- no formal orders that are capable of being enforced

17.	 I now turn to consider the first argument. The Third Defendant contended that there was no evidence before the Court of the actual minute of the formal order of 4 November 2019. No such minute of order was served on the Defendants. In fact, Counsel for the Plaintiff conceded that that they had never served a minute of order.   

18.	 The Third Defendant complains that “all that is produced is a copy of the written judgment of the court which is annexed the Affidavits of the Plaintiffs.” ([29] & [30] Third Defendants Written Submissions). Attaching the judgement of Makail J rather than the properly signed, sealed and stamped order of the Court, renders the current contempt proceeding unenforceable, say the Third Defendant (See [32] & [45]-[49] Third Defendants Submissions).

19.	 To support this contention Counsel for the Third Defendant cites Order 12 Rules 18-23 which have to do with “entering” orders. For example Order 12 Rule 18 begins “Order where entry required”, Order 12 Rule 19 is headed “Time for entry after settlement”, Order 12 Rule 20 is “Manner of Entry”. These orders, it is submitted are mandatory if an order is to be enforceable. 

20.	 At para [40] the Third Defendant’s written submissions it says of Order 12 Rule 21 and Rule 23 “The above prerequisites are important if the orders are to be enforced”.

21.	 I asked Counsel for the Third Defendant, if these rules were mandatory in the case of contempt proceedings, why had they not been included in Orders governing the commencement and prosecution of such cases? Counsel for the Third Defendant said Order 12 Rules 18-23 were generally applicable to all actions.

22.	 This poses two questions; 

a.	Is a failure to serve a properly minuted order fatal to a contempt charge? 
b.	Are the procedural rules governing contempt proceedings (Order 14 Rule 37 to 50) comprehensive?

Is a failure to serve a properly minuted order fatal to a contempt charge?

23.	 Is a failure to complied with the strict rules of service of an order fatal to a contempt charge? The answer to this question is no, for three reasons; firstly by using the Third Defendant’s own logic, if Order 12 Rule 18-23 are of general application to all civil litigation, then surely Order 1 Rule 8 and 9 are also of general application. Order 1 Rule 8 provides that non-compliance with the National Court Rules does not render a proceedings void.

24.	 In circumstance where the Court is asked to accept that some rules are generally applicable then, in the absence of any express provision otherwise, logic dictates that all the rules are generally applicable. The Third Defendant cannot pick and choose which rules apply but ignore other rules that are unhelpful. I should point out that Order 1 Rule 8 is expressed in broad terms and indicates by its wording that it is of general applicability. It reads: 

“Non-compliance with any of these rules, or with any rules of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms as the Court thinks fit.”

25.	 But there is a more specific reason that this argument of the Third Defendant is wrong; the Supreme Court has identified that the rules relating to contempt (Order14 Rules 37 to 50) are “comprehensive” and that noncompliance with those rules should not render any proceeding void. 

The Procedural Rules in Order 14 Rules 37 to 50 are comprehensive

26.	 In Robinson vs The State [1986] PNGLR 307 (‘Robinson’) at 309 the Court said: 

“The rules of the National Court contain a comprehensive Statement of Procedure to be followed in cases involving contempt of court (O14 r38) and in other situations where contempt complained of is in connection with proceedings in the court (O14r42)”. (My emphasis)

27.	 In PNG Power Ltd vs Registrar of the National Court (2013) SC 1335 the Supreme Court said “... although contempt proceedings are criminal in nature, the procedure to follow is as is prescribed and comprehensively laid down by the National Court Rules O. 14 Rules 37-50” (My emphasis)

28.	 It seems clear then that Order 14 Rule 37 to 50 comprehensively set out the procedural requirements a party must follow should they seek to punish another for contempt of court. Nowhere in those rules does it say that a signed, sealed minute of order be served on the contemnors. Certainly, Order 14 Rule 45 (which deals with service of a Notice or Motion or Summons on the contemnors) does not require a signed and sealed court order.

29.	 The requirement of service is contained in the elements of the charge of contempt itself. Those elements are set out in the case of Tato v Akunai [2016] PGSC 29 at [52] (citing Kwimberi v The State (1998) SC545) (‘Tato v Akunai) as “The order was clear. The order was properly served or the contemnor were aware of the order; and there was a deliberate failure to comply with the court order”.

30.	 At paragraph [58] of Tato v Akunai the Supreme Court expanded on the element of service. They said; 

A contemnor cannot be guilty of contempt unless aware of the terms of the order. That must usually be proved by personal service of the order. However, if the contemnor was aware of the terms of the order before disobeying it, a lack of personal service will not excuse a contemnor.

31.	 The procedure under the National Court Rules Order 14 Rules 37 to 50 reflect practice developed in the common law over centuries (Robinson vs The State at 309). Both the National Court Rules and the decided cases, make clear that there is no requirement to service a signed and sealed order on the contemnors. The element of service as I have outlined it is not expressed in such strict terms. 

Breach of Order 14 Rule 42(1) Plaintiffs not being a parties cannot bring these proceedings

32.	  As to the second argument that the Plaintiffs as non-parties to the proceedings before Mikail J are not entitled to enforce those proceedings. the Third Defendant wrote: 

“While an order can be made against a non-party and enforced against a non-party to a proceeding, the law in this jurisdiction...is that the power to commence contempt proceedings under O14R42(1) can only be exercised by a party to the proceeding which made the orders that are alleged to have been breached.” Para [18] Third Defendants Written Submissions

33.	 To that end he cited Gaman Holdings Ltd vs Labu Holding Pty Ltd (200) N2016 (Garmin Holdings) where his Honour Justice Injia said:

“Rule 42(1) provides for a party to a proceeding to file a Notice of Motion or Originating Summons for punishment for contempt of court in relation to contempt committed in connection with proceedings in court”

34.	 He further identified Koim v ONeill (2016) N6198 (Koim v ONeill) where Makial J in adopting the words of Injia in Gaman Holdings and said at para 25: 

“...Rule 42(1) provided for a party to a proceeding to file a Notice of Motion or Originating Summons for punishment for contempt of court in relation to contempt committed in connection with proceedings in Court”

35.	 I pointed out that the present case was bought under Order 14 Rule 42(2) not Order 14 Rule 42(1). Thus, the Plaintiffs had commenced by Originating Summons not Notice of Motion. Counsel for the Third Defendant made a blanket denial and submitted that the Court was (or should have) proceeded under Order 14 Rule 42(1). He said the case at para [22] of his submissions was relevant. That case was PNG Power Ltd v Registrar of the National Court (2013) SC1335.
 
36.	 I now turn to a proper consideration of Order 14 Rule 42.

The Law- Order 14 Rule 42

37.	 Order 14 of the National Court Rules provides for the “Miscellaneous Powers of Court”. Division 6 of that Order deals with “Contempt of Court”. Subdivision C of that Division deals with “Motions or Proceedings for Punishment”. Order 14 Rule 41 identified that this subdivision is not concerned with contempt’s in the face of the court, proceedings which are dealt with in Order 14 Rules 38, 39 and 40. Order 14 Rule 42(1) sets out how to proceed  “where a contempt is committed in connection with the proceedings in the Court...”. Order 14 Rule 42(2) sets out how to proceeded “Where contempt is committed, but not in connection with proceedings in the Court...”. 

38.	 For a contempt committed in connection with the proceedings in the Court, Order 14 Rule 42(1) provides that “...application for punishment is made by motion on notice in the proceedings, but if separate proceedings for punishment for contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders”.
 
39.	 Order 14 Rule 37 provides for “Interlocutory or other application in proceedings” and says that “An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by write of summons or by originating summons shall be made by motion.”

40.	 So that, should a party to a proceeding consider the other party/ies are guilty of a contempt of the court in that proceedings, Order 14 Rule 42(1) would apply. That is because the relevant proceedings are on foot, the parties to that proceedings have, or are, appearing in the Court and the Court is seized of the dispute between them giving rise to the contempt. In those circumstance, the contempt proceedings are by way of an interlocutory process, the Notice of Motion. Parties do not have to start a separate contempt proceeding (though if they do it is at the discretion of the court whether those proceedings continue separately or are subsumed in the ordinal proceedings). 

41.	 Order 14 Rule 42(2) provides that where a contempt is not in connection with a proceeding, the punishment for that contempt must be commenced by originating summons. That is because the parties are not before the court. They need to be given notice of the proceedings by way of service. However, if an application is made by way of Notice of Motion in a proceeding it is at the discretion of the court whether it continues as a Notice of Motion or whether it is disposed of in a later proceeding.

42.	 The relevant distinguishing phrase between Order 14 Rule 42(1) and Order 14 Rule 42(2) is “In connection with proceedings in the court” and “not in connection with proceedings in the Court”.

Application of Order 14 Rule 42 to the Facts

43.	 The Plaintiffs commenced proceedings by way of Originating Summons seeking a punishment for a contempt of an order of the Court in a proceeding that had been concluded. They were not a party to those proceedings. Further the Defendants, who they seek to punish, were not parties to the proceeding, either.
 
44.	 The proceedings that the Plaintiffs claim the Defendants are in contempt of, was heard on the 10th of October in 2019 between Samson Wereh and Joseph Cajetan (Wereh v Cajetan No 1). Judgement in that matter was delivered on 4 November 2019. The proceedings now before the Court was commenced on 11 May 2023 between Wombi Nondi, Lasa Mainu, Gibs Siri and Peter Yamuna as Plaintiffs and Hon William Powi as First Defendant, Joesph Kunukunu, Jack Kipoi, Francis Walipa and Jack Iki as Second Defendants, Leo Vli and Third Defendant and Jerry David as Fourth Defendant. 

45.	 At the time of commencement of these proceedings, the parties to it had not appeared and the Court was not seized of a dispute between them. Self evidently, there was no proceedings on foot within which a Notice of Motion could be brought. So, the proceedings were rightly commenced by way of Originating Summons under Order 14 Rule 42(2) not a Notice of Motion under Order 14 Rule 42(1). 

46.	 Therefore, second argument of the Third Defendant’s counsel is misconceived. The cases he cited of Gaman Holdings and Koim v O’Neill both relate to Order 14 Rule 42(1) therefore are distinguishable. The case of PNG Power vs the Registrar of the National Court does not support his argument either because it was in relation to contempt arising out of an existing proceeding. Moreover, the Supreme Court in that case made a general statement about contempt matters that does not assist the Third Defendant. In PNG Power vs the Registrar of the National Court the Supreme Court said referring to Andrew Kwimberi case:
 
“...although contempt proceedings are criminal in nature, the procedure to follow is as is prescribed and comprehensively laid down by the National Court Rules O.14 rr. 37 - 50. A non compliance of this procedure does not render the proceedings void”. 

47.	 I observe that the fact that Order 14 Rule 42(1) was not applicable should have been obvious to the Third Defendant. Justice Toliken specifically referred to it at para [28] of his judgment. His Honour said “These proceedings are for allege contempt not in connection with proceedings in the Court. Hence they are properly commenced under Order 14 Rule 42(2) of the National Court Rules, that is by Originating Summons”. (Nondi v Powi [2023] PGNC 499; N10666). (My emphasis)

Plaintiffs being non-parties 

48.	 There is another aspect to this argument that “...the Plaintiffs being non-parties to the proceedings do not have the authority under the law to commence the present contempt proceedings” (para [25] Third Defendants Written Submissions). Order 14 Rule 42(2) provides a mechanism litigants who are not parties to a proceeding. It is provided for persons who are seeking to punish others for a contempt “...not in connection with proceedings in the Court...”. The plain reading of Order 14 Rule 42(2) bears this out. Moreover, the proposition has been enunciated in the common law of Papua New Guinea. 

49.	 In Tzen Pacific Ltd vs Innovest Ltd [2014] PGNC 110; N5716 at [13] Hartshorn J said:

“...it is because a party to a proceeding has a special interest or personal stake in the proceeding that he is entitled to bring proceedings for contempt. If any party did not have a special interest or personal stake, it would not have standing to bring the substantive Proceedings”. 

Do the Plaintiffs have a special interest or personal stake in the proceeding?

50.	 The question arises “Do the Plaintiffs have a special interest or personal stake in the proceeding?”. On 7 August 2019 they were each elected as Presidents of respective LLG’s. On 14 August 2019 another four men (the Second Defendants) were elected to the same four LLG’s. As such they had rivals for the positions they sought to occupy. Further, as the Statement of Charge makes plain, they competed for recognition of the legitimacy of their election against the Second Defendants even after Justice Makail had determined that the Second Defendant’s election was void ab initio. 

51.	 Clearly, the fact that the proceedings which found the contempt had to do with the legitimacy of the Plaintiffs’ election to the presidency of their LLG’s versus the legitimacy of the election of the Second Defendants, gives the Plaintiffs a “special interest” or “personal stake” in those proceedings. As such they are entitled to bring this Originating Summons for a contempt of those proceedings. 

52.	 When I put the plain wording of Order 14 Rule 42(2) and case of Tzen Pacific Ltd vs Innovest to counsel for the Third Defendant he responded (relying on Order 14 Rule42(1)) that only a party to a proceeding could bring an action for being a contempt of the proceeding. For the reasons given above that position is against the clear wording of Order 14 Rule 42(2) and the case of Tzen Pacific Ltd vs Innovest. That should have been abundantly clear to the Third Defendant before he bought his Objection to Competency.

Can declaratory order found a charge of contempt?

53.	 During the hearing I asked the Third Defendant’s counsel if it made any difference to the contempt proceedings that the orders of Justice Makail were declaratory in nature and not coercive orders of the court. Though he said no, his oral submissions regarding the lack of specificity as to what the contemnor should or should not do from the judgment of Makail J, seemed to indicate that he should have answered ‘yes’. 

54.	 In the First Defendant’s oral submissions in supporting the Objection to Competency, counsel also identified the difficulties the contemnor had because the orders of Justice Makail did not prescribe or proscribe any particular behaviour. Those submissions seem inadvertently to be agreeing to the proposition that there is a difference in the enforcement of a declaration and a coercive order directed at a person.  

55.	 A Declaratory judgment is defined as:

“An authoritative but non-coercive proclamation of the court made for the purposes of resolving some legal issue. A declaratory judgement is contrasted with court orders which are coercive. However, a refusal to abide by a declaratory judgement may lead to a coercive order given against the defaulting party.” Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2, 595-7.

56.	 The question as to whether a declaratory order can found a charge of contempt has not been considered in the Papua New Guinea courts. As such I look to the English common law for a relevant authority. The case cited in relation to the issue is Webster vs Southwark London Borough Council [1983] QB 698 (Webster). In that case the Court found that the was no contempt because the form of order was a declaratory one (at p708). 

57.	 However, the judge in that case, Justice Forbes, acknowledged that the circumstances before him were “exceptional” (at p710). Further his Honour identified two earlier decisions which indicated otherwise (see Seaward v Pasterson [1897] 1 Ch. 545 and Iveson v Harris (1802) 7 Ves.Jun. 251). Justice Fordes acknowledged that these cases demonstrated that: 

“...persons who contumaciously incite others to defy a court order in such a way that they show that they are – and I quote- ‘deliberately treating the order of the court as unworthy of notice’ are themselves in contempt whether the order of the court is mandatory or merely declaratory” (at p707, 708).

58.	 His Honour concluded that “...the court has, I apprehend, an inherent jurisdiction to enforce its orders where justice demands that those orders should be enforced”.

Reasoning and conclusion on declaratory orders

59.	 The mischief that a charge of contempt of court is trying to solve is the eroding of belief or respect for the authority of the court. To use the terminology of Webster, “deliberately treating the order of the court as unworthy of notice”.

60.	The definition of what amounts to contempt is not closed. It is for the Court to establish for itself what behaviour it considers is contemptuous. The court of Papua New Guinea and the common law jurisprudence for England before that, has never prescribed what will or won’t amount to contempt. It has left it to be judged on a case-by-case basis.

61.	 Like all offences, contempt of court is defined by a series of elements: The order was clear. The order was properly served or the contemnor were aware of the order; and there was a deliberate failure to comply with the court order”. Provided those elements are satisfied by admissible evidence the contemnor is guilty. If behaviour tends to erode the belief or authority of the Courts or deliberately treats the order of the court as unworthy of notice, it should not matter whether the judgment of the Court was an order or a declaration. If the elements are satisfied to the requisite standard, that is proof enough of a contempt.

Conclusion

62.	 The grounds raise by the Third Defendant in that parties second attempt to summarily terminate the proceedings are risible. Thorough preparation of the Objection to Competency would have identified that. Reading the plain words of Order 14 Rule 42(1) & (2) would have demonstrated that the first two arguments were untenable. The Plaintiff had started their contempt proceedings via an Originating Summons. Automatically Order 14 Rule 42(1) did not apply. Therefore, the cases that considered that rule were also not applicable.  

63.	 An exploration of the cases that consider Order 14 Rule 42 would identify very quickly that the procedure for running a contempt proceeding are exhaustively covered by Order 14 Rules 37 to 50 of the National Court Rules. Therefore, other parts of the National Court Rules were not applicable. Further, the cases make clear, strict compliance with Order 14 Rules 37 to 50 is not required. That rendered the rest of the Third Defendants arguments nugatory. 

64.	 Finally, the only argument that had merit; whether a declaratory order could found a contempt, was discovered by the Court. When put to counsel for the Third Defendant it was dismissed without serious consideration. The Third Defendant had an opportunity to be of assistance to the Court and he did not take that opportunity. 

65.	 For those reasons the Objection to Competency bought by the Third Defendant against the Originating Summons filed 21 May 2023 is dismissed. The Third Defendant shall pay the costs of that application. 

Orders

1.	The Third Defendants Objection to Competency is dismissed
2.	The Third Defendant shall pay the cost of that application to be taxed if not agreed

Lawyers for the plaintiffs: Gonol Lawyers
Lawyers for the first defendants: Baniyamai Lawyers
Lawyers for the second defendants: Tangua Lawyers
Lawyers for the third defendant: Harvey Nii Lawyers