Bank of South Pacific Limited v Anton Sekum, as its President and Papua New Guinea Banks & Financial Institutions Workers Union and Helen Saleu, Industrial Registrar, Industrial Relations Division of Department of Labour & Industrial Relations and: George Vaso, Secretary for Department of Labour & Industrial Relations and The Independent State of Papua New Guinea (2011) N4588

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J.
• Judgment Date: 27 May 2011
• Court: National Court
• Citation: (2011) N4588
• Docket Number: OS 425 of 2010
• Year: 2011
• Judgement Number: N4588

Full Title: OS 425 of 2010; Bank of South Pacific Limited v Anton Sekum, as its President and Papua New Guinea Banks & Financial Institutions Workers Union and Helen Saleu, Industrial Registrar, Industrial Relations Division of Department of Labour & Industrial Relations and: George Vaso, Secretary for Department of Labour & Industrial Relations and The Independent State of Papua New Guinea (2011) N4588

National Court: Hartshorn J.

Judgment Delivered: 27 May 2011

N4588

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 425 OF 2010

BETWEEN:

BANK OF SOUTH PACIFIC LIMITED

Plaintiff

AND:

ANTON SEKUM, as its President and PAPUA

NEW GUINEA BANKS & FINANCIAL

INSTITUTIONS WORKERS UNION

First Defendant

AND:

HELEN SALEU, Industrial Registrar, INDUSTRIAL

RELATIONS DIVISION OF DEPARTMENT OF

LABOUR & INDUSTRIAL RELATIONS

Second Defendant

AND:

GEORGE VASO, Secretary for DEPARTMENT

OF LABOUR & INDUSTRIAL RELATIONS

Third Defendant

AND:

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Fourth Defendant

Waigani: Hartshorn J.

2010: 10th & 14th December

2011: 11th, 14th & 21st April

: 27th May

Contempt - penalty

Facts:

This is a decision as to the penalty to be imposed for contempt. The contemnor Mr. Joseph Koi, after a trial, was found guilty of contempt of court by breaching Restraining Orders of this Court. After numerous adjournments because of his absence in Court, the Court decided to proceed with this hearing on penalty.

Held:

The appropriate penalty is that Mr. Koi shall pay a fine of K 25,000.00. If payment of that fine is not made within 30 days from today then Mr. Koi shall be imprisoned for a period of six months.

Cases cited:

Papua New Guinea Cases

Kavali v. Hoihoi [1986] PNGLR 329

Yap v. Tan [1987] PNGLR 227

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

Bishop Brothers v. Ross Bishop (1989) N690

Concord Pacific Ltd v. Thomas Nen [2000] PNGLR 47

The State v. Johnson & Ors (No. 2) (2004) N2586

The State v. Augustine Lausi Ogi (2004) N2761

The State v. Justin Komboli (2005) N2891

The State v. Elias Vilamut & Anor (2009) unreported CR 479/07 delivered at Kokopo 15/5/09

Liriope v. Usurup [2009] N3931

Overseas Cases

Australian Consolidated Press Ltd v. Morgan (1965) 112 CLR 483

Heatons Transport v. TGWU (1973) AC 15

Australian Meat Industry Employees Union v. Mudginberri Station Pty Ltd (1986) 161 CLR 98

Witham v. Holloway (1995) 183 CLR 525

Vaysman v. Deckers Outdoor Corporation Inc [2011] FCAFC 17

Counsel:

Mr. R. Pato, for the Plaintiff

27th May, 2011

1. HARTSHORN J: The contemnor Mr. Joseph Koi, after a trial, was found guilty of contempt of court. Mr. Koi deliberately and wilfully disobeyed or otherwise refused to and/or neglected the terms and effect of orders of this court and specifically he deliberately and wilfully disobeyed Order 4 of the Restraining Orders that restrained the

“…giving effect to enforcing, facilitating and implementing any resolution and/or decision and/or agreement reached as a result of any Secret Ballot that has been conducted without fully exploring and exhausting settlement procedures available under the Industrial Relations Act:”

2. The facts are detailed in my decision delivered on 11th April 2011. Mr. Koi did not attend court on 11th April. The court adjourned the hearing of submissions as to penalty to 14th April but Mr. Koi again did not appear. The court further adjourned to 21st April to hear submissions as to penalty but again Mr. Koi did not attend and there was no appearance on his behalf.

3. Upon being satisfied that Mr. Koi had been given notice of the hearing, I decided to hear submissions on penalty in his absence. The court was entitled to adopt this course as the principle that a trial should proceed in the presence of an accused person is not absolute. A person can relinquish his right by not attending court where required. There are numerous authorities to this effect: Kavali v. Hoihoi [1986] PNGLR 329, The State v. Johnson & Ors (No. 2) (2004) N2586, The State v. Augustine Lausi Ogi (2004) N2761 and The State v. Justin Komboli (2005) N2891. I also heard submissions as to penalty and passed sentence in respect of an accused person on bail who did not attend court when required in The State v. Elias Vilamut & Anor (2009) unreported CR 479/07 delivered at Kokopo 15/5/09.

4. No maximum punishment is prescribed for contempt. Pursuant to Order 14 Rule 49 (1) National Court Rules, where the contemnor is not a corporation, the court may punish contempt by committal to prison or fine or both.

5. The category of contempt of which Mr. Koi has been found guilty is referred to as disobedience contempt. That is, the failure to comply with an order of the court or an undertaking given to a court. The punishments that have been imposed in this jurisdiction for disobedience contempt were considered by Cannings J in Liriope v. Usurup (2009) N3931. Cannings J noted that in four of the seven cases considered, the primary punishment was committal to custody and in two cases, Yap v. Tan [1987] PNGLR 227 and Bishop Brothers v. Ross Bishop (1989) N690 (appeal against conviction upheld: Ross Bishop v. Bishop Brothers [1988-89] PNGLR 533), committal to custody was the default penalty. In Yap (supra) and Bishop (supra), where fines were imposed with committal to custody being the default penalty, the contempts were in relation to the operation of businesses. In the case of Concord Pacific Ltd v. Thomas Nen [2000] PNGLR 47 in which the contempt was business related, the punishment was an order for costs on a solicitor client basis against the contemnor.

6. The punishment of a fine with or without a default penalty for an order for the payment of costs, to an extent, reflects the punishment that was imposed for disobedience contempt historically. This was referred to in Australian Consolidated Press Ltd v. Morgan (1965) 112 CLR 483 by Windeyer J:

“When contempt lies in disobedience of a court’s order to do something, the contemnor may be imprisoned, until by doing what was ordered he purges his contempt. When contempt lies in disobedience of an injunction not to do something, the contemnor is ordinarily permitted to purge his contempt by an apology to the court, making reparation for the damage done by the forbidden act and paying the costs as between solicitor and client.”

The imposition of a fine, which was not permitted in earlier times, can be seen to have replaced the making of reparations in the passage cited.

7. The payment of a fine with or without imprisonment as the default penalty is often the punishment for disobedience contempt imposed in the courts of Australia. The Federal and High Courts of Australia have the power to order that a contemnor, “pay a fine, be committed to prison or both pay a fine and be committed to prison.” The decisions of these Courts are persuasive in this jurisdiction.

8. In the recent case of Vaysman v. Deckers Outdoor Corporation Inc [2011] FCAFC 17, a decision of the Full Court of the Federal Court of Australia, Gray J said that:

“The starting point for the process of reasoning in sentencing is the gravity of the offence… In the case of contempt of court involving contravention of, or failure to comply with, court orders, that means assessing the seriousness of the defiance of the Courts authority.”

Then later,

“… Restraint is appropriate in imposing sentences of imprisonment for contempt of court involving contravention of, or failure to comply with, orders of the Court. The authority of a court can be brought into disrepute, rather than enhanced, by too great a tendency to punish severely in cases that do not warrant severity.”

9. In the judgment of Bromberg J in Vaysman (supra), His Honour had this to say as to punishment for contempt:

“…. The question is whether by reference to the harm done, the seriousness of the contempt, any prior relevant misconduct and the physical, mental and other personal conditions of the person to be sentenced, no sentence other than imprisonment is (in all the circumstances) appropriate.” “… non-compliance with court orders necessarily constitutes an interference with the administration of justice and thus the public interest of vindicating judicial authority is raised….” “The vindication of judicial authority must necessarily reflect the nature of the challenge to that authority inflicted by the conduct in contempt in question.” “Imprisonment, as a disciplinary sanction for contempt, ought to be confined to the most serious of contempts..” “As Keane CJ, Dowsett and Reeves JJ recently observed in Jones v. Australian Competition and Consumer Commission [2010] FCAFC 136 at [36], they would be a serious question of the propriety of a sentence of imprisonment if the charges raised only a case of civil contempt; that is, a case where contumacious conduct was not contended for.”

10. In this instance, I have found that Mr. Koi disobeyed order no. 4 of the Restraining Orders by giving effect to and facilitating any resolution, decision or agreement reached as a result of the subject secret ballot and that...