Elizabeth Mandus Wukawa v Christine Gawi

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 June 2015
• Citation: (2015) N6024
• Court: National Court
• Year: 2015
• Judgement Number: N6024

Full : OS NO 41 OF 2014; Elizabeth Mandus Wukawa v Christine Gawi and Fr Jan Czuba, Chairman, Board of Management, Modilon General Hospital (2015) N6024

National Court: Cannings J

Judgment Delivered: 23 June 2015

N6024

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 41 OF 2014

ELIZABETH MANDUS WUKAWA

Plaintiff

V

CHRISTINE GAWI

First Defendant

FR JAN CZUBA, CHAIRMAN,

BOARD OF MANAGEMENT, MODILON GENERAL HOSPITAL

Second Defendant

Madang: Cannings J

2015: 2, 23 June

CONTEMPT OF COURT – disobedience contempt – failure to comply with court order that required plaintiff to be reinstated – whether the order was clear and unambiguous – whether order served on contemnors – whether contemnors failed to comply – whether failure to comply was deliberate

The National Court ordered on 22 January 2014 that the plaintiff be reinstated by 5 February 2014 to the position she previously occupied at a public hospital and paid her outstanding entitlements by 5 March 2014. On 30 January 2014 the Chief Executive Officer of the hospital filed an appeal against that order to the Supreme Court. The plaintiff was not reinstated by 5 February 2014. On 7 February 2014 the plaintiff commenced proceedings against the Chief Executive Officer of the hospital and the Chairman of the Management Board of the hospital, charging them with contempt of court on the ground that each had disobeyed the order of 22 January 2014. On 7 March 2014 the Supreme Court stayed the order of 22 January 2014 pending determination of the appeal. On 30 October 2014 the appeal was dismissed. In November 2014 the plaintiff was reinstated and paid her entitlements (which she received, while reserving her right to challenge the amount). In 2015 a trial was conducted on the charge of contempt of court. Both defendants pleaded

not guilty. The second defendant argued that the charge was defective and should be summarily dismissed.

Held:

(1) There are no Rules of Court specifying the manner of drafting of a charge of contempt of court. Provided the charge, given all the circumstances in which it is drafted, served and set down for trial, conveys the gist of the alleged contempt and the contemnor understands the charge and the elements of the charge are clear, the charge will usually be regarded as adequate.

(2) Challenges to the drafting of a charge of contempt of court or to the jurisdiction of the court hearing the charge, should be made prior to arraignment of the contemnor. The second defendant’s challenge to the charge was made late and it was refused.

(3) Proceedings for contempt are criminal in nature and the court must be satisfied beyond reasonable doubt that the three elements of a disobedience type of contempt have been proven to exist:

· the order was clear;

· it was properly served; and

· there was a deliberate failure to comply.

(4) The order was clear and unambiguous. It was served on the first defendant but not on the second defendant. The first two elements were proven against the first defendant but not against the second defendant who was found not guilty for that reason alone.

(5) The third element (deliberate failure to comply) gives rise to three issues:

· was there a failure to comply?

· who failed to comply?

· was it deliberate?

(6) There was a failure to comply with the order, as the order required that the plaintiff be reinstated by 5 February 2014 and that did not happen. The first defendant failed to comply, but not the second defendant as the order was not directed at him and it was not within his role and functions as Chairman of the Board to reinstate the plaintiff. The first defendant’s failure to comply was deliberate as she made a conscious decision not to reinstate the plaintiff while waiting for her application to the Supreme Court for a stay of the reinstatement order to be heard. The third element was proven against the first defendant but not against the second defendant.

(7) The first defendant was found guilty of contempt of court. The second defendant was found not guilty of contempt of court.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545

Christine Gawi v Public Services Commission & Elizabeth Mandus Wukawa (2014) N5473

Ian Augerea v Todagia Kelola & South Pacific Post Ltd (2014) N5582

Mathew Michael v John Glengme & Isaac Gladwin (2008) N3429

Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447

Ome Ome Forests Ltd v Ray Cheong (2002) N2289

Re Charges of Contempt of Court against Gee Gunar and Bernard Alvin Lange and Madang Provincial Government (2014) N5500

Robert Kaidai v Agua Nombri (2014) N5718

Sr Diane Liriope v Dr Jethro Usurup (2009) N3572

Toami Kulunga v Geoffrey Vaki (2014) SC1389

Yap v Tan [1987] PNGLR 227

ORIGINATING SUMMONS

This is the verdict for two persons charged with contempt of court.

Counsel

Y Wadau, for the Plaintiff

W Mapiso, for the First Defendant

D Wood, for the Second Defendant

23rd June, 2015

1. CANNINGS J: The first defendant Christine Gawi is the Chief Executive Officer of Modilon General Hospital, Madang. The second defendant Fr Jan Czuba is the Chairman of the Management Board of that hospital. They have each been charged by the plaintiff Elizabeth Mandus Wukawa with contempt of court for their alleged failure to comply with an order of the National Court dated 22 January 2014 requiring that the plaintiff be reinstated to the position she previously occupied at the hospital by 5 February 2014. They pleaded not guilty so a trial has been held and this is the Court’s decision on verdict.

BACKGROUND

2. The plaintiff was a specialist midwifery nurse at the hospital. On 7 November 2011 the first defendant charged her with a serious disciplinary offence relating to alleged involvement in unlawful industrial action at the hospital. The first defendant on 12 December 2011 found the plaintiff guilty and imposed the penalty of dismissal from the Public Service. The plaintiff complained to the Public Services Commission, which reviewed the matter and on 14 August 2013, made a decision, annulling the first defendant’s decision, reinstating the plaintiff and reimbursing the plaintiff’s lost salaries and entitlements.

3. The first defendant then applied to the National Court for judicial review of that decision, which was stayed pending determination of the judicial review. On 22 January 2014 the National Court refused the application for judicial review (Christine Gawi v Public Services Commission & Elizabeth Mandus Wukawa (2014) N5473) and ordered:

The decision of the first defendant [the Public Services Commission] dated 14 August 2013 is binding and shall be complied with as soon as practicable, which means that the second defendant [Ms Wukawa] shall be reinstated by 5 February 2014 and be reimbursed her lost salaries and entitlements by 5 March 2014.

4. That order was entered on 23 January 2014. The first defendant, Ms Gawi, was aggrieved by the order and on 30 January 2014 filed an appeal to the Supreme Court, together with an application for a stay of the National Court order of 22 January 2014. The plaintiff was not reinstated by 5 February 2014. On 7 February 2014 the plaintiff commenced the present proceedings against the defendants, charging them with contempt of court on the ground that they each had disobeyed the order of 22 January 2014.

5. On 5 March 2014 the Supreme Court stayed the order of 22 January 2014 pending determination of the appeal. On 30 October 2014 the appeal was dismissed. In November 2014 the plaintiff was reinstated and paid her entitlements (which she received, while reserving her right to challenge the amount).

6. It is against that background that a trial on the charge of contempt of court was conducted on 2 June 2015. Criminal procedures were adopted. The plaintiff’s counsel Mr Wadau presented the statement of charge, which was then put to the defendants, also referred to as contemnors, who were seated in the dock. The first defendant was represented by Mr Mapiso. The second defendant was represented by Mr Wood. The defendants indicated that they understood the charge and each pleaded not guilty. Mr Wadau then presented the plaintiff’s case, which consisted of five affidavits, three by the plaintiff and two by other deponents. Mr Mapiso then presented the first defendant’s case, which consisted of three affidavits, two by the first defendant and one by another deponent. Mr Wood then presented the second defendant’s case, which consisted of one affidavit by the second defendant. An application by Mr Wadau for adjournment was refused and the Court proceeded to hear submissions.

7. In opening submissions for the second defendant Mr Wood argued that the charge was defective as it did not disclose a cause of action and the proceedings ought to be summarily dismissed. I will deal with this argument first.

ARGUMENT THAT CHARGE IS DEFECTIVE

8. The statement of charge states:

1...