Bishop Brothers Engineering Pty Ltd and Nambawan Finance Limited v Ross Bishop, Huon Industries Pty Ltd and Maintenance Plumbing Pty Ltd (1989) N705

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J
• Judgment Date: 02 May 1989
• Court: National Court
• Citation: (1989) N705
• Year: 1989
• Judgement Number: N705

Full Title: Bishop Brothers Engineering Pty Ltd and Nambawan Finance Limited v Ross Bishop, Huon Industries Pty Ltd and Maintenance Plumbing Pty Ltd (1989) N705

National Court: Bredmeyer J

Judgment Delivered: 2 May 1989

N705

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. NO. 341 OF 1989

BETWEEN

BISHOP BROTHERS ENGINEERING PTY LTD

FIRST PLAINTIFF

AND

NAMBAWAN FINANCE LIMITED

SECOND PLAINTIFF

AND

ROSS BISHOP

FIRST DEFENDANT

AND

HUON INDUSTRIES PTY LTD

SECOND DEFENDANT

AND

MAINTENANCE PLUMBING PTY LTD

THIRD DEFENDANT

NO. 2

Waigani

Bredmeyer J

17 March 1989

1-2 May 1989

CONTEMPT OF COURT — civil contempt of court.

DISOBEDIENCE OF A COURT ORDER — 1st defendant assaulting the 1st plaintiff attempting to execute a court order — gaol term justified — six weeks imprisonment with hard labour — 2nd and 3rd defendants fined K2,500 each.

Counsel

R. Gunson, for the plaintiffs.

L. Henao, for the defendants.

Cur. adv. vult.

2 May 1989

BREDMEYER J: This is the second contempt action against the defendants. In the first action I convicted the first defendant of contempt of court on 11 March 1989 and sentenced him to six months imprisonment with hard labour fully suspended provided he keeps the peace and is of good behaviour for one year. I also fined him K500. The reasons for that decision and punishment are set out in unpublished judgment N690 of 17 March 1989.

I am now dealing with an application to punish the three defendants for contempt of court on 10 March 1989. The first defendant is an individual and may be punished by committal to prison or by a fine. He is also a director and principal shareholder of the other two defendants and here the application is to punish those companies for contempt by sequestration or fine. The relevant facts are as follows: On 9 March 1989 the plaintiffs obtained an interim injunction ex parte from Woods J. against the three defendants. The order was extracted on the morning of 10th March. That order gave to the plaintiffs access and possession of certain goods listed in the Writ of Summons situated on the premises of the defendants at Josey Street Lae. It restrained the defendants and their servants and agents from in any way interfering with the plaintiff's access, possession and use of those goods. Para 3 provided that the order was to be served together with the notice of motion and supporting affidavits by facsimile on the deendant's lawyers on or before 13 March 1989 or personally. That order and the supporting documents was faxed through to the office of Henao Cunningham & Co., the defendant's lawyers in Lae at 1 p.m. on the afternoon of the 10th. At about 1.30 p.m. on that day those papers were placed on the desk of a lawyer in that firm Mrs. Lata Milner. She immediately telephoned Mr. Ross Bishop but he was out and she could not contact him.

At about 2 p.m. Mr. Wayne Bishop who was the general manager, company secretary and a shareholder of the first plaintiff, Mr. Richard Green one of his senior employees, and about twelve national employees went to the premises of the defendants. I should add that Huon Industries Pty Ltd and Maintenance Plumbing Pty Ltd have their registered office and operate out of the same premises in Josey Street Lae and that Mr. Ross Bishop is the general manager of those companies and is 75% shareholder of those companies. Wayne Bishop and his party entered the office. Ross Bishop was out at the time and Wayne left a copy of the order with the Sri Lankan accountant, Leslie Manickam. He told him that it was his intention to carry out the terms of the order. He then went through the office and into the machine shop whereupon he was assaulted by Ross Bishop and his employees.

As there is a conflict of evidence as to the nature and extent of this assault it is necessary for me to say something about the evidence which I heard. On the prosecution side I have affidavit and sworn evidence from Wayne Bishop and affidavit and sworn evidence from Richard Green. On the defendants' side I have read two affidavits from Ross Bishop and heard his sworn evidence. I have also read an affidavit and heard sworn evidence from Leslie Manickam. In terms of eye-witness testimony, Manickam was not an eye witness to the assault so it is two witnesses, Wayne Bishop and Mr. Green, against Ross Bishop. Annexed to Mr. Wayne Bishop's affidavit is a hand written statement signed by three of his employees giving their version of the assault. I did not notice this when the affidavit was first tendered and read and I have problems with its admissibility. This court normally only hears sworn oral evidence or affidavit evidence and this is neither. It is a combined statement of three men and, obviously, three seprate statements would tell a more accurate story. It was not objected to and therefore I will not reject it completely but I do not give it the same weight as sworn oral and affidavit evidence.

I was impressed by the evidence of Wayne Bishop and Richard Green and I was less impressed with the evidence of Ross Bishop. I was impressed by the evidence of Mr. Green. He is an independent witness. I know that he works for the plaintiff, but he was not emotionally involved as were the two brothers. He chose his words carefully, he was not given to exaggeration and I consider him a witness of truth. I consider that the evidence of those two for the prosecution side far outweighs that of Mr. Ross Bishop and I make the following findings beyond reasonable doubt.

Wayne Bishop came into the office of the two defendant companies about 2 p.m. and he handed a copy of the court order to Leslie Manickam and explained its contents and that he and his party would be proceeding to take possession of the equipment mentioned in the order. Ross Bishop at the time was not there....