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Vali v Nondi [2025] PGSC 124; SC2824 (12 December 2025)

SC2824

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]


SC APP NO. 104 OF 2025


BETWEEN:
LEO VALI, THE SOUTHERN HIGHLANDS
PROVINCIAL ASSEMBLY CLERK
Applicant


AND
WOMBI NONDI, LASA MAINU, GIBS SIRI & PETER YAMUNA
First Respondents


AND
HON. WILLIAM POWI, GOVERNOR, SOUTHERN HIGHLANDS PROVINCE
Second Respondent


AND
JOSEPH KUNUKUNU, JACK KIPOI, FRANCIS WALIPA, JACOB IKI
Third Respondents


AND
JERRY DAVID, THE PROVINCIAL ADMINISTRATOR,
SOUTHERN HIGHLANDS PROVINCE
Fourth Respondent


AND


SC APP NO. 111 OF 2025


HON. WILLIAM POWI, GOVERNOR FOR
THE SOUTHERN HIGHLANDS PROVINCE
Applicant/ Appellant


AND
WOMBI NONDI, LASA MAINU, GIBS SIRI & PETER YAMUNA
First Respondents


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


AND
LEO VALI AS THE SOUTHERN HIGHLANDS
PROVINCIAL ASSEMBLY CLERK
Third Respondent


AND
JERRY DAVID, THE PROVINCIAL ADMINISTRATOR,
SOUTHERN HIGHLANDS PROVINCE
Fourth Respondent


WAIGANI: SALIKA CJ, WOOD J, BRE J


2025: 8 DECEMBER
2025: 12 DECEMBER


SUPREME COURT – hearing of two Applications for Leave to Appeal against an interlocutory Judgment – whether an applicant in a contempt proceeding is required to file an Order to reflect the terms of a Judgment – whether there was denial of natural justice and denial of the applicants’ constitutional rights to protection of the law and the presumption of innocence guaranteed under sections 37(1) and (4) of the Constitution based on a finding in an interlocutory Judgment that the actions of all the defendants were in contravention of previous Court Orders, when all issues were in dispute and the contemnors had pleaded not guilty

Upon the Supreme Court granting leave to appeal – notwithstanding that a stay application was not formally moved – the stay application was granted in order to preserve the status quo and prevent prejudice to the rights of the appellants to a fair trial and miscarriage of justice in the National Court proceeding


Cases cited
Chung v Daniels (2015) SC1503
Kelola v Augerea [2019] SC1829
Lomai v Seal (Manus) Ltd [2008] SC1326
Nondi & Ors v Hon. Powi & Ors [2025] N11567
Oberia v Charlie [2005] SC801
Wereh v Cajetan [2019] N8086


Counsel


SC App No. 104 of 2025
Mr H Nii for the applicant
Mr D Gonnol for the first respondent
Mr A Baniyamai for the second respondent
Mr L Tangua, for the third respondent
Ms E Wurr, for the fourth respondent


SC App No. 111 of 2025
Mr A Baniyamai for the applicant/ appellant
Mr D Gonnol for the first respondent
Mr L Tangua for the second respondent
Mr H Nii for the third respondent
Ms E Wurr for the fourth respondent

  1. BY THE COURT: PRELIMINARY ISSUES: Before the Court were the hearing of the Application for Leave to Appeal filed on 10 November 2025 (the first Application for Leave) by Mr Leo Vali (Mr Vali) in SC App. No. 104 of 2025 as well as the Application for Leave to Appeal filed on 17 November 2025 (the second Application for Leave) by Hon. William Powi in SC App. No. 111 of 2025. Both applications seek leave to appeal the interlocutory judgment delivered by His Honour Justice Crowley on 21 October 2025 in National Court proceeding OS No. 106 of 2023, entitled: Nondi & Ors v Hon. Powi & Ors [2025] N11567.
  2. The first Application for Leave and the Second Application for Leave were initially heard and determined by His Honour Justice Cannings, as a single Judge, on 1 December 2025. Pursuant to section 10(2) of the Supreme Court Act and Order 11, Rule 27 of the Supreme Court Rules (the Rules), the lawyers for Mr Vali and Hon. William Powi wrote to the Registrar of the Supreme Court and requested the hearing of the first Application for Leave and Second Application for Leave before full bench of the Supreme Court.
  3. In this regard, Order 11, Rule 27 of the Rules provide as follows:

    ‘Where a Judge refuses an order sought on an application pursuant to Section 10(1) of the Act, that application shall not stand dismissed, but shall remain on foot, and the same application may be moved before the Court pursuant to Section 10(2) of the Act, provided that a written request in that behalf is served on the Registrar within 14 days of the order refusing relief’.
  4. On the basis that we are satisfied that respective letters from the lawyers were served on the Registrar within 14 days from the date of Justice Cannings’ above-mentioned decision, and because all parties agreed that there were no procedural issues arising from the hearing of the first Application for Leave and Second Application before this Court as an application de novo, we granted leave to Mr Vali and Hon. William Powi to move their respective Applications for Leave to Appeal on 8 December 2025.


  1. It should also be noted that the first Application for Leave and the second Application for Leave raise similar issues relating to the Judgment in Nondi & Ors v Hon. Powi & Ors (supra). All parties consented to the hearing of both matters together before this Court.

    The first Application for Leave
  2. The first Application for Leave states as follows under the heading, ‘REASONS WHY LEAVE SHOULD BE GIVEN’:

‘4.1 The issues raised by the Applicant in the Court below, and again before this Court, challenge the very jurisdiction of the trial Court, to continue to deal with the contempt charges.


4.2 As contempt proceedings, especially for disobedience of Court orders, are founded on Court Orders there must be in existence a valid Court order in the first place that is capable of service, and enforcement


4.3 Here the Applicant's contention was that the contempt proceedings were a nullity from the outset and the Court did not have jurisdiction to continue hearing on a procedurally and jurisdictionally flawed proceeding, because there was no formal order in place that was capable of enforcement by contempt proceedings.


4.4 The proposition of law stated by both the Supreme Court and National Court decisions that for purposes of service and or enforcement of orders however, there must be a formal entry and minute of the orders was ignored by the learned trial judge in breach Schedule 2.4 - Development of the Underlying Law - of the Constitution and Schedule 2.9(1) - Subordination of Courts - of the Constitution.


4.5 It is clear that the learned trial judge breached Schedule 2.9(1) - Subordination of Courts - of the Constitution by not applying the binding decision of the Supreme Court in Wood v Watking (PNG) Pty Ltd [1986] PNGLR 88 and also he failed to explain why he was not bound by this decision, and in doing so he breached Section 59(2) - Principles of natural justice - of the Constitution which by implication requires him to give reasons for his decision not to follow the binding authority of the Supreme Court. Breach of duties placed in the National Court by the Constitution is a serious matter and the Supreme Court must intervene to protect the Constitution, and any decisions made in breach of them should be quashed.


4.6 Order 14 rules 37 to 50 of the National Court Rules that govern contempt of court proceedings have no provisions regarding orders, including the "format of the Orders" that can be served and enforced. The learned trial judge said that contempt proceedings are "prescribed and comprehensively laid down by the National Court Rules 0. 14 rules 37-50' such that other rules or provisions of general application like Order 12 rules 18 to 23 do not apply to contempt proceedings. If this is the case, then what is an order, and what should an order for purposes of contempt proceedings look like? This is an opportunity for the Supreme Court to interpret the law regarding this.


4.7 What constitutes an "order" that is capable of service, and enforcement by way of contempt proceedings? Does the order have to take the form as prescribed by Order 12 rules 18 to 23 of the National Court Rules or do judges dealing with contempt proceedings have discretion to enforce unminuted, unsigned and unsealed orders of the Court not in the format required by the rules (From 52), or even oral orders I pronouncements from the bench for that matter? The Supreme Court needs to give clarity to these issues.


4.8 It is obvious that there was a miscarriage of justice in the ruling on the objection to competency by the learned trial judge's finding of guilt of the Applicant and the other Defendants even before the trial commenced, such that the impartiality and objectivity of His Honour to deal with the objections to competency and ruling it on its merits was compromised, and therefore leave must be granted to appeal and quash the learned trial judge's findings, and orders be made by the Supreme Court to do justice in the circumstances.


4.9 The learned trial judge on record demonstrated overt bias against the Defendants such that the Applicant, with due respect, does not have confidence in the learned trial judge's ability to make a fair and impartial ruling on 10 December 2025 consistent with the law and the evidence, thus there is a possibility of manifest injustice and miscarriage of against the Applicant and the other defendants that needs to be prevented.


4.10 There is a real possibility of miscarriage of justice if the matter before the learned trial judge is permitted to continue to a ruling, because the learned trial judge has already found the Defendants guilty of contempt of Court by stating in the ruling on objections, "It is not disputed that all the actions of the Defendants were in contravention of Justice Makail's orders" in spite of the fact that the Defendants had disputed the charges by pleading not guilty to them, and even before the defendant's made submissions on evidence, such that a fair hearing under Section 59(2) of the Constitution is not possible. In the circumstance, the Supreme Court must intervene and stop the trial from reaching its conclusion in the interests of justice.


4.11 Order 1 rule 8 of the National Court Rules gives the Court wide discretion not to dismiss proceedings that have been filed in breach of the rules. However there appears to be no authority in this jurisdiction explaining the circumstances under which that judicial discretion can be exercised. This case presents the perfect opportunity for the Supreme Court to develop the underlying law around the exercise of the Court's powers under Order 1 rule 8.


4.12 At the outset it is obvious that Order 12 rules 18 to 23 of the National Court Rules had been breached. This created a vacuum in the Court's powers to deal with the subsequent contempt proceedings because of the absence of formal orders. However, the learned trial judge ruled otherwise and said that Order 12 rules 18 to 23 have no application to contempt proceedings. The trial judge's continuation of the trial in a potentially flawed proceedings will cause substantial miscarriage of justice to the Applicant and the other Defendants if found guilty, only to be later exonerated by the Supreme Court. The learned trial judge's erroneous ruling must be corrected through this Appeal after grant of leave.


4.13 Such an erroneous ruling, if allowed to remain on record will create confusion as to what form an order should take for purposes of enforcement by contempt proceedings. This is an opportunity for the Supreme Court to clarify the law regarding this uncertainty.


4.14 Leave should therefore be granted so that the Supreme Court can correct injustices caused to the Applicant and the co-defendants.’


The second Application for Leave

  1. The second Application for Leave states as follows under the heading, ‘REASONS WHY LEAVE SHOULD BE GIVEN’:

‘4.1 It is in the interests of justice that leave be granted to appeal the judgment and the Orders of 21 October, 2025, on grounds that the Applicant was denied his right to a fair trial and to the full protection of the law pursuant to sections 37(1) and 37(4)(a) of the Constitution when the learned judge had, without the completion of the trial, made a finding of fact that "it is not disputed all the actions of the defendants were in contravention of Justice Makail’s orders in Wereh v Cajetan [2019] PNGNC 406; N8086 (Wereh v Cajetan No. 1). The allegation is that the defendant’s actions were deliberate and wilful” and in doing so negated the Applicant’s defences to the contempt charges that:-
(a) There were no orders issued against the Applicant in the Wereh proceedings.

(b) If there were orders issued in the Wereh proceedings against the Applicant,which is denied, such orders were not capable of being enforced against the Applicant as they created no obligations and duty on the part of the Applicant.

(c) Even if there were such orders issued in the Wereh proceedings, which is denied, that such orders were unclear, ambiguous and contradictory.

(d) The orders, if any, were not served on the Applicant.

(e) There was no breach of any of the orders in the Wereh proceedings, in the manner as complained of by the First Respondents in the contempt proceedings.


4.2 It is in the interests of justice that leave be granted to appeal against the Judgment and Orders of 2I" October, 2025 in the contempt proceeding on grounds that the orders complained of were not minuted and sealed with the seal of the National Court as required by Order 12, Rules 18 to 23 of the National Court Rules, rendering them incapable of enforcement.


4.3 It is in the interests of justice that leave be granted to appeal against paragraphs 23 to 31 of the judgment of the National Court of 21'' October, 2025, in the contempt proceedings, where the Court held that lack of service of the Orders is not fatal to contempt charges if the contemnor was aware of the order before disobeying it. In arriving at such a conclusion, the Court had erred by expanding the requirements of contempt in the nature of disobedience of a Court Order, where service of the Orders is a mandatory requirement that ought to be proved by the prosecution. In making this erroneous assessment prior to the trial, his Honour relied on English cases and authorities that are only of persuasive value and he erroneously applied them without providing an opportunity to the parties to address him on the applicability of these cases in the Papua New Guinea jurisdiction.


4.4 It is in the interests of justice that leave be granted to appeal against paragraph 24 of the judgment of the National Court of 21st October, 2025, in the contempt proceedings, where the learned trial judge relied upon Order 1, Rule 8 of the National Court Rules, to excuse the requirements of Order 12, Rules 18 to 23 of the said National Court Rules, when:


(a) There was no application made by any of the parties to the Court to rely on Order I, Rule 8 of the National Court Rules.
(b) The parties were not invited and did not make submissions on the applicability of Order 1, Rule 8 of the National Court Rules, and thereby denying the Applicant his right to be heard on the issue.
(c) The learned judge contradicted himself by holding under paragraphs 26 to 31 of the Judgment that Order 14 Rules 37 to 50 of the National Court Rules are comprehensive and they do not provide for service of a court order on a contemnor.

4.5 It is in the interests of justice that leave be granted to appeal against the judgment and orders of 21st October, 2025, on grounds that the Court erred in:


holding that declaratory orders are capable of founding or grounding a charge on contempt; and


applying English cases to hold that declaratory orders are capable of sustaining a charge of contempt without the parties on the applicability of these cases in the Papua New Guinea jurisdiction :-

  1. Webster v Southwark London Borough Council l1983] OB 698;
  2. Seaward v Pastcrson (1897] UK Law Rp Ch 22;
  3. Iveson v Harris [1802J Eng Rp 220: [1802] EngR 220; (1802) 7 Ves Jun 251.

4.6 It is in the interests of justice that leave is granted against paragraph 60 of the judgment and orders of 21st October, 2025, that "the definition of what amounts to contempt is not closed. It is for the Court to establish for itself what behaviour is contemptuous. The Court of Papua New Guinea and the common law jurisprudence of 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.” This finding overlooks the significance of the requirement to put clearly to the contemnor the allegations against him in respect to non compliance of a court order that is usually done through the presentation of a Statement of Charges. It is therefore not correct to hold that the Court should decide what will or will not amount to contempt.


4.7 It is the interests of justice that leave be granted to appeal against paragraph 61 of the judgment of the Court of 21" October, .2025, where the Court held where that “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 declaration. If the elements are satisfied to the requisite standard, that is proof enough of a contempt." This finding had clouded his Honour’s judgment in the sense that he was dealing with contempt based on 'disobedience of a court order and not ‘actions that brough the administration of justice into disrepute or into question and thereby eroding the authority of the Courts' and hence the requirements that there must be:


(a) An order in existence by a competent court of law.
(b) The Orders created a duty or obligation on a contemnor,
(c) The Orders must be served, especially where the parties to the contempt proceedings were not parties to the proceedings in which the orders were made.
(d) The Orders must be clear and unambiguous.
(e) There must be wilful or intentional disobedience of the Court order.

4.8 It is in the interests of justice that leave be granted to appeal against the findings made under paragraphs 55 to 61 of the Judgment of 21st October, 2025, in the contempt proceedings that had influenced the learned judge’s mind that he was dealing with allegations of disobedience of a court order and not any other type of contempt. In so doing, his Honour erred in his assessment of the law in respect to:

(a) the requirements of Order 12, Rules 18 to 23 of the National Court Rules that basically require an order to be sealed by the seal of the National Court to enable compliance’
(b) excusing the requirement of service of the court orders on a contemnor.
(c) making findings of fact without completion of the trial and submissions and without consent of the parties.
(d) the Court’s role as an impartial body and not decide on what should constitute contempt but rather to conduct a trial based on the allegations that were put to a contemnor through a statement of charge.

4.9 In arriving at the findings in the judgment of 21st October, 2025, in the contempt proceedings, as set out under paragraphs to, prior to the completion of trial, the Court has negated the defence of the Applicant against contempt in the nature of disobedience of a court order, and thereby has caused great injustice to the Applicant whose basic rights under sections 37(1) and 37(4)(a) of the Constitution have been affected, and this amounts to a miscarriage of justice that requires the Supreme Court’s intervention. Hence, it is in the interests of justice that leave be granted to appeal the said judgment of 21st October, 2025.


4.10 Leave should therefore be granted so that the Supreme Court can correct a miscarriage of justice and injustices caused to the Applicant/ Appellant and the co-defendants in the contempt proceedings.’


Background issues


  1. The relevant background issues are that His Honour Justice Makail delivered a judgment in National Court proceeding OS (EP) No. 2 of 2019, entitled: Wereh v Cajetan [2019] N8086. In the judgment, His Honour made the following orders at paragraph 19 as follows:

‘The orders sought in the originating summons will be granted as follows:


  1. An Order that the first defendant’s Circular Instruction dated 5th August 2019 is in direct breach of the Ministerial Directive in the press release dated 31st July 2019 and as such, any election conducted in Mendi for the Local-level Governments for Ialibu Pangia District is illegal, null and void ab initio pursuant to Section 155(4) of the Constitution and is inconsistent with Section 12(1)(a) and (b) of the Local-level Government Administration Act as it is contrary to the Ministerial Directive of the Minister for Inter-Government Relations.
  2. An Order declaring that the suspension of the plaintiff, on the basis of non-compliance with the first defendant’s Circular Instruction dated 5th August 2019, which is in direct breach of Section 234 of the Organic Law on Provincial Governments and Local-level Governments and the Minister for Inter-Government Relation’s instructions in the press release dated 31st July 2019 is illegal, null and void ab initio pursuant to Section 155(4) of the Constitution.
  3. An Order that the plaintiff in accordance with Circular Instruction No. 02 of 2019 shall conduct the elections in Ialibu-Pangia electorate pursuant to Section 23 of the Local-level Government Administration Act.
  4. An Order that the first defendant’s Circular Instruction dated 5th August 2019 in having the first meeting conducted in Mendi for the Ialibu Urban Local-level Government is inconsistent with Section 12 and Section 23 of the Local-level Government Administration Act, and therefore, null and void and of no effect.
  5. The defendants shall pay the plaintiff’s costs of the proceeding, to be taxed, if not agreed.’
  6. Contempt of court proceedings were subsequently filed by Wombi Nondi, Lasa Mainu, Gibs Siri and Peter Yamuna in National Court proceeding OS No. 106 of 2023, which allege non-compliance of the above-mentioned Orders made by Justice Makail in OS (EP) No. 2 of 2019, against Hon. William Powi (as first contemnor), Joseph Kunukunu, Jack Kipoi, Francis Walipa and Jacob Iki (as second contemnors), Mr Vali (as third contemnor) and Jerry David (as fourth contemnor), who we shall collectively refer to in this judgment as the ‘contemnors’.
  7. In this regard, we note that the Statement of Charge in
    OS No. 106 of 2023 alleges that certain National Court and Supreme orders were served on the contemnors, however, the Statement of Charge does not provide particulars of what Court Orders were served on the contemnors, nor any details of the time, dates and locations of the purported service. In their submissions before this Court, Mr Vali and Hon. Wiliam Powi argued that it is essential that following the delivery of a Judgment, that an Order be taken out to reflect the terms of the Judgment. In this regard, they rely on Order 12 Rules 18, 19, 20 and 21 of the National Court Rules, which provide as follows:

    ‘18. Order; Where entry required. (41/11)

(1) An order shall be entered where—
(a) the order is made by the signing of a minute of the order; and (b) a minute of the order is to be served; and
(c) the order is to be enforced; and
(d) there is an appeal from the order; and
(e) the Court so directs.

(2) Subject to Sub-rule (3) an order shall, unless the Court otherwise
directs, be entered where some step is to be taken under the order.

(3) Sub-rule (2) does not apply to an order which (in addition to any provision as to costs) merely—
(a) makes an extension or abridgement of time; or
(b) grants leave or makes a direction—

(i) to amend any document other than a minute of a
judgement or order; or
(ii) to file any document; or
(iii) to do any act to be done by an officer of the Court other than a solicitor; or
(c) gives directions concerning the conduct of proceedings.
(4) The general form of a minute of order shall be as in Form 52.


19. Time for entry after settlement. (41/12)

Where the Registrar has settled a minute of a judgement or order, the
judgement or order shall not, unless the Court otherwise directs, be
entered until seven days after the date on which the Registrar signs
the minute.


20. Manner of entry. (41/13)

(1) Where the entry of a judgement or order is authorized, a party or,
subject to Sub-rule (2) the Registrar, may enter the judgement or order by filing a minute of it signed by the Registrar or, in the case of an order, signed by the Judge or officer making the order.

(2) The Registrar shall not exercise his powers under Sub-rule (1) unless—
(a) the Court so directs; or
(b) a party so requests.


21. Sealing. (41/14)

On entry of a judgement or order, the Registrar shall seal the minute
of the judgement or order with the seal of the Court.


22. Copies. (41/15)

(1) The Registrar shall, on payment of the prescribed fee, furnish to any party to any proceedings a certified or office copy of the minute of any judgement or order entered in the proceedings.

(2) The Registrar may, on payment of the prescribed fee, furnish to any person appearing to have a sufficient interest in any judgement or order entered in any proceedings a certified or office copy of the minute of the judgement or order.


23. Service. (41/16)

A minute of a judgement or order need not be served unless these Rules require service or the Court directs service.’

  1. Mr Vali and Hon. William Powi also rely on the Supreme Court judgment in Chung v Daniels (2015) SC1503, where the Court (per David J, Yagi J and Kariko J) stated as follows at paragraph 11:

‘As noted earlier, the contempt application was based on allegations that the Consent Orders were not complied with. Disobedience of a court order is what is termed as civil contempt of court. In Ross Bishop and Ors v Bishop Bros Engineering Pty Ltd and Ors [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.

The charge of contempt cannot be sustained if any of the elements is not proved to the required standard - proof beyond a reasonable doubt.’


  1. The above principles in Chung v Daniels (supra) have been approved in many other contempt proceedings, including in the Supreme Court decision in Kelola v Augerea [2019] SC1829.
  2. Counsel for Wombi Nondi, Lasa Mainu, Gibs Siri and Peter Yamuna submitted that it was not necessary that an Order be taken out to reflect the above-mentioned Orders made by Justice Makail in Wereh v Cajetan (supra), but rather it was sufficient that a copy of the judgment be served on the contemnors. We are not satisfied that the submission by counsel is correct as a matter of law.
  3. We also note that in the judgment of the primary Judge in Nondi & Ors v Hon. Powi & Ors (supra), it was stated at paragraphs 17 to 31:


‘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 v Registrar of the National Court (2013) SC1335 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.’


  1. We also consider that on the basis on which the Statement of Charge in OS No. 106 of 2023 is pleaded, it could convey the inference that an Order was subsequently taken out to reflect the Judgment of Justice Makail (which did not occur), or alternatively that it was sufficient that a copy of Justice Makail’s Judgment (which contained the Orders) was served upon the contemnors. Either way, we consider with respect, that the primary Judge in Nondi & Ors v Hon. Powi & Ors (supra), erred in finding that it was not necessary for an Order to be taken out in compliance with the provisions of Order 12, Rules 18 to 21 of the National Court Rules.
  2. We also note that in paragraph 1 of the Judgment delivered on 21 October 2025 it is stated that:

    ‘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).’
  3. Mr Vali and Hon. William Powi submit through their counsel that at no stage did they agree that they had acted in contravention of the Orders of Justice Makail. They say this is reinforced by their respective pleas of ‘not guilty’ regarding the contempt proceedings. In this regard, and noting this finding prior to the trial by the primary Judge, we agree that His Honour did not observe the rules of natural justice and procedural fairness. We also consider it open to find that His Honour has already made a determination of important matters in the substantive contempt proceeding, prior to the conduct of the substantive trial.
  4. In light of above matters, it is also necessary to consider the principles detailed by Lay J in Oberia v Charlie [2005] SC801, where His Honour stated:

‘The onus is on the applicant to show a prima facie case that the decision of the trial judge was wrong and that substantial injustice will be done by leaving the erroneous decision unrevised: see Breckwoldt v Gnoyke (1974) PNGLR 106 (Clarkson, Prentice and Lalor) per Lalor J at p126.


The observations quoted from those cases can be summarized in the following tests to be applied to the facts of the case:

  1. Is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong?
  2. Does the Appellant have other recourse in the court below?
  1. Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?
  1. Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?
  2. Will substantial injustice be caused by allowing the decision to stand?
  3. Has cause been shown that the trial process should be interrupted by an appeal?’
  1. On the basis of our findings detailed above in this Judgment, we consider there is an arguable case that the primary Judge in Nondi & Ors v Hon. Powi & Ors (supra) erred in respect of all the grounds pleaded in the first Application for Leave and the second Application for Leave and that the findings in his Judgment of 21 October 2025 were manifestly unreasonable and exercised on wrong principles. We also consider that the primary Judge’s finding that: ‘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)’, would clearly have a bearing on the final Judgment and so it is necessary that the first Application for Leave and the second Application for Leave be granted, otherwise there could be a substantial injustice caused to one or more of the contemnors.

Applications for Stay

  1. Submissions were made briefly by all counsel concerning stay of the National Court contempt proceeding. In this regard, we note the Application for a Stay filed on 4 November 2025 in SC App No. 104 of 2025 and the Application filed on 17 November 2025 in SC App No. 111 of 2025 (the Stay Applications) were not moved. This is in circumstances were there is a pending decision on verdict scheduled on 10 December 2025 and the applicants are anxious that their respective Applications for Leave to Appeal be determined as a matter of urgency.
  2. However, considering our decision to grant leave, we accept section 19 of the Supreme Court Act and section 155(4) of the Constitution, constitute the jurisdictional basis to consider staying the National Court proceeding.
  3. Section 19 of the Supreme Court Act vests the Supreme Court with jurisdiction to grant orders staying proceedings in the Court below despite the general rule that an appeal or application for leave to appeal, does not operate as a stay of proceedings.
  4. While there occasionally may be exceptional circumstances (noting we consider that none arise in this case), it follows logically that proceedings below ought to be stayed once the leave application is granted.
  5. We accept as a relevant consideration the applicants’ submissions that the finding by the primary Judge of non-compliance by all the defendants of the court Orders of 4 November 2019 in Wereh v Cajetan (supra), indicates an apparent error of law on the face of the Judgment. It is a substantive finding which potentially prejudices the applicants’ constitutional rights to protection of the law and the presumption of innocence guaranteed under sections 37(1) and (4) of the Constitution. Their rights to appeal that decision within time has lapsed by 30 November 2025. The effect is a permanent loss of the right to appeal. See Lomai v Seal (Manus) Ltd [2008] SC1326.
  6. The contempt criteria of whether there has been disobedience of the 2019 decision in OS (EP) No. 2 of 2019, appears to have been decided by the primary Judge before hearing the defendants on their respective defences. It appears only the issue of wilful disobedience remained and is pending decision this Wednesday 10 December 2025.
  7. Given these circumstances, a stay of the National Court proceeding is necessary to preserve the status quo and prevent prejudice to the rights of the appellants to a fair trial and further miscarriage of justice in the National Court proceeding.
  8. We therefore grant the Stay Applications and order that the substantive proceeding in the National Court styled OS No. 106 of 2023 - Wombi Nondi & Ors v Hon. William Powi & Ors be stayed pending determination of the respective appeals.

Conclusion


  1. In the circumstances, we make the following orders:
    1. The Application for Leave to Appeal filed on 10 November 2025 in
      SC App. No. 104 of 2025 is granted.
    2. The applicant in SC App. No. 104 of 2025 is granted leave to file a Notice of Appeal within 21 days from today against the Judgment delivered on
      21 October 2025 in National Court proceeding OS No. 106 of 2023 – Wombi Nondi & others v Hon. William Powi and three others.
    3. The Application filed on 4 November 2025 in SC App. No. 104 of 2025 is granted, whereby the substantive proceeding in National Court proceeding OS No. 106 of 2023 – Wombi Nondi & others v Hon. William Powi and three others, is stayed pending the determination of the appeal.
    4. The costs of the Application for Leave to Appeal filed on 10 November 2025 in SC App. No. 104 of 2025 are costs in the cause.
    5. The Application for Leave to Appeal filed on 17 November 2025 in
      SC App. No. 111 of 2025 is granted.
    6. The applicant in SC App. No. 111 of 2025 is granted leave to file a Notice of Appeal within 21 days from today against the Judgment delivered on
      21 October 2025 in National Court proceeding OS No. 106 of 2023 – Wombi Nondi & others v Hon. William Powi and three others.
    7. The Application filed on 17 November 2025 in SC App. No. 111 of 2025 is granted, whereby the substantive proceeding in National Court proceeding OS No. 106 of 2023 – Wombi Nondi & others v Hon. William Powi and three others, is stayed pending the determination of the appeal.
    8. The costs of the Application for Leave to Appeal filed on 17 November 2025 in SC App. No. 111 of 2025 are costs in the cause.

SC App No. 104 of 2025
Lawyers for the applicant: Harvey Nii Lawyers
Lawyers for the first respondent: Danny Gonnol Lawyers
Lawyers for the second respondent: Baniyamai Lawyers
Lawyers for the third respondent: Tangua Lawyers
Lawyers for the fourth respondent: S. Ifina Lawyers


SC App No. 111 of 2025
Lawyers for the applicant/ appellant: Baniyamai Lawyers
Lawyers for the first respondent: Danny Gonnol Lawyers
Lawyers for the second respondent: Tangua Lawyers
Lawyers for the third respondent: Harvey Nii Lawyers
Lawyers for the fourth respondent: S. Ifina Lawyers

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