Madang Cocoa Growers Export Co Ltd v Noilai Gunar

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 08 November 2012
• Citation: (2012) N4881
• Court: National Court
• Year: 2012
• Judgement Number: N4881

Full : OS NO 297 of 2011; Madang Cocoa Growers Export Co Limited v Noilai Gunar and Gee Gunar and Madang Provincial Government (2012) N4881

National Court: Cannings J

Judgment Delivered: 8 November 2012

N4881

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 297 OF 2011

MADANG COCOA GROWERS EXPORT CO LIMITED

Plaintiff

V

NOILAI GUNAR

First Defendant

GEE GUNAR

Second Defendant

MADANG PROVINCIAL GOVERNMENT

Third Defendant

Madang: Cannings J

2012: 4, 18 October, 8 November

CONTEMPT – disobedience contempt – alleged failure to comply with court order: failure to pay compensation, failure to allow plaintiff exclusive occupation of warehouse, failure to vacate warehouse – whether the order was clear and unambiguous – whether order served on contemnors – whether contemnors failed to comply – whether failure to comply was deliberate.

After finding that the defendants had unlawfully occupied a warehouse and removed the plaintiff’s property from it the National Court ordered amongst other things: (5) that the defendants who removed the property were required to return it by a particular date (failing which they would pay compensation), (7) that the plaintiff had the right to exclusive occupation of the warehouse from that date and (8) that the defendants were required to vacate the warehouse by that date. The Court also ordered that unresolved issues at the trial be referred to mediation. The mediation failed and six weeks after the date referred to in the order, the plaintiff filed a motion seeking punishment of six persons (including two of the defendants) for contempt of court on the ground that each of them had disobeyed the orders. All contemnors (persons charged with contempt) pleaded not guilty so a trial was held.

Held:

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

· the order was clear;

· it was properly served; and

· there was a deliberate failure to comply.

(2) Orders (7) and (8) were clear and unambiguous in that the plaintiff had the right to exclusive occupation of the warehouse and the defendants were required to vacate it by the stipulated date. However it was not clear that the defendants had to pay compensation to the plaintiff by that date, so order (5) was not clear and unambiguous.

(3) The orders were properly served on all contemnors.

(4) 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?

(5) There was a failure to comply with the order as the plaintiff did not have exclusive occupation of the warehouse and the defendants had not vacated it.

(6) Those who failed to comply were the first, second and third contemnors. The fourth, fifth and sixth contemnors could not be said to have failed to comply as they were under no direct duty to comply with the order and each of them was not directly responsible for compliance.

(7) The first contemnor’s failure to comply was not deliberate as an officer of the plaintiff prevented him from complying; so the first contemnor was found not guilty.

(8) The second and third contemnors deliberately failed to comply as it was within their power to ensure compliance and they had the benefit of legal advice, yet they chose not to comply. They were each found guilty of contempt of court.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545

Frank Malara v Turiai Maravila (1998) N1716

Ian Augerea v David Tigavu (2010) N4185

Martin Kenehe v Michael Pearson (2009) N3763

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

Peter Ipatas v Sir Mekere Morauta (2001) N2048

Peter Luga v Richard Sikani and The State (2002) N2286

Richard Sikani v The State and Peter Luga (2003) SC807

Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533

Sr Diane Liriope v Dr Jethro Usurup (2009) N3572

The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303

Yap v Tan [1987] PNGLR 227

NOTICE OF MOTION

This is a ruling on a motion for contempt of court.

Counsel

S Asivo, for the plaintiff, with leave of the Court

T M Ilaisa & O Ore, for the first contemnor

B W Meten, for the second contemnor

Y Wadau, for the third, fourth, fifth & sixth contemnors

8 November, 2012

1. CANNINGS J: This is a ruling on whether any one or more of six persons charged with contempt of court (the contemnors) are guilty of contempt. The charges have been laid under Division 14.6 of the National Court Rules by the plaintiff, Madang Cocoa Growers Export Co Ltd, by notice of motion in the course of ongoing proceedings, OS No 297 of 2011. 2. Those proceedings concern the occupation and use of a warehouse in Madang town known as the “DPI Buffalo Shed” or “Number 2 Didiman Station”. It is on government land controlled by Madang Provincial Government (the third defendant).

3. On 25 June 2012, after a trial, the proceedings were determined largely in the plaintiff’s favour. The court found that the provincial government allowed Gee Gunar (the second defendant) to enter the warehouse in early 2011 without the consent of the lawful occupier (the plaintiff) and that he removed the plaintiff’s property and established a presence there and that he was assisted by Noilai Gunar (the first defendant). The court made ten orders, the most contentious being the following three, which are those that the plaintiff alleges have been disobeyed:

5 The defendants who, or whose associates, removed the plaintiff’s property from the Number 2 Didiman Station Warehouse, Madang, in the period since 31 December 2010, are obliged to return that property, in the condition in which it was in on 31 December 2010, to the plaintiff by 31 July 2012, failing which the relevant defendants shall pay to the plaintiff a reasonable sum by way of compensation to enable the warehouse and the plaintiff’s property to be put back in the condition they were in at 31 December 2010. …

7 The plaintiff has the right to exclusive occupation and use of the Number 2 Didiman Station Warehouse, Madang, in the period from 1 August 2012 to 31 July 2014, which shall not be interrupted except with the consent of the plaintiff or by order of the National Court or the Supreme Court.

8 The defendants and their associates and all other persons are required to vacate the Number 2 Didiman Station Warehouse, Madang, leaving it in good order and condition, by 31 July 2012.

4. The six contemnors are:

1. Noilai Gunar, the first defendant;

2. Gee Gunar, the second defendant;

3. Bernard Lange, the Madang Provincial Administrator;

4. Ganei Agodop, Director, Division of Agriculture and Livestock, Madang Provincial Government;

5. Godfried Savi, Adviser, Division of Agriculture and Livestock, Madang Provincial Government; and

6. Thomas Neruse Kolokol, Director, Division of Finance, Madang Provincial Government.

5. The plaintiff made an oral application at the start of the trial of the contempt motion to join Madang Provincial Government (the third defendant) as seventh contemnor but the application was refused as it was made without notice.

6. Mr Wadau, for the third, fourth, fifth and sixth contemnors, submitted that the contempt charges against his clients should be dismissed as they are ‘strangers’ to the proceedings, OS No 297 of 2011. I reject this submission. The fact that none of them is a party to the proceedings does not provide them with a defence. A person who is not a party can be guilty of contempt of court, just as a party can. The question of whether any of them is guilty can only be determined by a consideration of the elements of contempt.

ELEMENTS OF CONTEMPT

7. The plaintiff has charged the contemnors with committing a ‘disobedience’ contempt: they have deliberately failed to comply with (or disobeyed) the court’s orders. To succeed with this claim, the plaintiff must prove three things:

· the order was clear and unambiguous;

· the order was properly served on the contemnors (those charged with contempt); and

· the contemnors deliberately failed to comply with it.

8. Contempt of court is a criminal matter and the plaintiff must prove the existence of the three elements beyond reasonable doubt. Mr Asivo, for the plaintiff, submitted that because the contemnors were being charged with a disobedience type of contempt the evidentiary burden of proof has shifted to them. I have difficulty with that...