Martin Kenehe, Aita Sanangkepe, Sakiusa Donnis, Joan Kalama, Andrew Nuabo, Benjamin Yalo & Synell Kalou v Michael Pearson, Chairman, Teaching Service Commission and Rose August, Commissioner—Operations, Teaching Service Commission and Dr Joseph Pagelio, Secretary, Department of Education (2009) N3763

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 October 2009
• Court: National Court
• Citation: (2009) N3763
• Docket Number: OS NOS 95-101 OF 2007
• Year: 2009
• Judgement Number: N3763

Full Title: OS NOS 95-101 OF 2007; Martin Kenehe, Aita Sanangkepe, Sakiusa Donnis, Joan Kalama, Andrew Nuabo, Benjamin Yalo & Synell Kalou v Michael Pearson, Chairman, Teaching Service Commission and Rose August, Commissioner—Operations, Teaching Service Commission and Dr Joseph Pagelio, Secretary, Department of Education (2009) N3763

National Court: Cannings J

Judgment Delivered: 26 October 2009

N3763

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NOS 95-101 OF 2007

MARTIN KENEHE, AITA SANANGKEPE,

SAKIUSA DONNIS, JOAN KALAMA, ANDREW NUABO,

BENJAMIN YALO & SYNELL KALOU

Plaintiff

V

MICHAEL PEARSON,

CHAIRMAN, TEACHING SERVICE COMMISSION

First Defendant

ROSE AUGUST,

COMMISSIONER – OPERATIONS,

TEACHING SERVICE COMMISSION

Second Defendant

DR JOSEPH PAGELIO,

SECRETARY, DEPARTMENT OF EDUCATION

Third Defendant

Waigani: Cannings J

2009: 18 June, 26 October

VERDICTS

CONTEMPT – disobedience contempt – alleged failure to comply with court order re reinstatement of members of the Teaching Service to their substantive positions with full entitlements – 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 made orders in judicial review proceedings commenced by various teachers (the plaintiffs) who had been dismissed from the Teaching Service or demoted for involvement in a strike. The Court quashed the decisions to dismiss or demote the plaintiffs and ordered amongst other things that they remain suspended from duty pending the result of an investigation, be reinstated to their substantive positions with full entitlements and be paid back-pay in respect of the periods after they were demoted or dismissed. The plaintiffs were paid back-pay but remained suspended without further pay. They claimed that this amounted to a breach of the order that they be reinstated with full entitlements. They commenced proceedings against two Commissioners of the Teaching Service Commission and the Secretary of the Department of Education, seeking orders that they be punished for contempt of court for disobeying the court’s orders.

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 and unambiguous;

· it was properly served; and

· there was a deliberate failure to comply.

(2) The orders were not clear and unambiguous as the provision of the Teaching Service Act under which the plaintiffs were suspended stated that suspension was to be without pay.

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

(4) There was no failure to comply with the orders as a reasonable interpretation of it was that the plaintiffs were required to be reinstated and paid back-pay but would remain suspended without pay.

(5) Two essential elements of the offence of contempt were not proven and all defendants were found not guilty.

Cases cited

The following cases are cited in the judgment:

Martin Kenehe & 6 Others v Allan Jogioba and 2 Others, OS Nos 95-101 of 2007, 11.07.08, unreported

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

Ome Ome Forests Ltd v Ray Cheong (2002) N2289

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 Dianne Liriope v Dr Jethro Usurup (2009) N3572

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

Abbreviations

The following abbreviations appear in the judgment:

DCJ – Deputy Chief Justice

Dr – Doctor

ICCC – Independent Consumer and Competition Commission

J – Justice

Ltd – Limited

N – National Court judgment

No – number

OS – originating summons

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

Pty – Proprietary

SC – Supreme Court judgment

Sr – Sister

v – versus

NOTICE OF MOTION

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

Counsel

C A Kuira, for the plaintiffs

G Korei, for the defendants

26 October, 2009

1. CANNINGS J: There are seven plaintiffs in this case and they are all teachers by profession. They have commenced contempt of court proceedings against two Commissioners of the Teaching Service Commission – the Chairman Mr Michael Pearson and the Commissioner Operations Ms Rose August – and the Secretary for Education, Dr Joseph Pagelio. The plaintiffs allege in a statement of charges filed on 4 February 2009 that those three defendants have deliberately disobeyed orders of the National Court made on 11 July 2008 in a case in which they challenged their demotion or dismissal from the Teaching Service for involvement in a nationwide strike in 2006.

2. This is the ruling on whether any one or more of the three defendants is guilty of contempt.

THE ORDERS OF 11 JULY 2008

3. The orders were made by Injia DCJ, as he then was, in judicial review proceedings commenced by the plaintiffs. His Honour delivered a written judgment (Martin Kenehe & 6 Others v Allan Jogioba and 2 Others, OS Nos 95-101 of 2007, 11.07.08, unreported). He quashed the decisions to dismiss or demote the plaintiffs and ordered amongst other things that they remain suspended from duty pending the result of an investigation, be reinstated to their substantive positions with full entitlements and be paid back-pay in respect of the periods after they were demoted or dismissed.

4. The orders stated:

1 The application for judicial review in each matter is granted.

2 An order in the nature or certiorari is granted quashing the decision of the Defendants in respect of each Plaintiff, the subject of the review in each matter.

3 The “investigations and hearing” proceedings purportedly conducted by the Independent Investigation Team appointed by the Secretary for Education under Section 95(2) of the Teaching Service Act 1988 and the findings and penalty imposed by the Teaching Service Commission pursuant to those “investigation and hearing” are all declared null and void.

4 Each Plaintiff shall remain suspended pursuant to the notice of suspension issued by the authorised officer until the matter is properly heard and determined by a duly constituted Teaching Service Commission under Section 95(2) and Section 11 of the Teaching Service Act 1988.

5 The notices of suspension issued to each Plaintiff are remitted back to the Teaching Service Commission for rehearing before a duly constituted Teaching Service Commission.

6 Each Plaintiff is reinstated to his or her substantive position with full entitlements. They are also to pay their entitlements which he or she received on their substantive positions immediately before the penalty was imposed, if any, which they are lawfully entitled to receive, which they missed out between the date of those decisions and the date of this judgment. [sic]

7 If there is any dispute between the parties as to the outstanding entitlements to be paid which cannot be amicably settled through meaningful dialogue and compromise, then either party is given liberty to apply to this Court for assessment of damages, by giving one (1) month notice to the other party.

WHAT HAS HAPPENED SINCE 11 JULY 2008?

5. The plaintiffs were in August 2008 paid back-pay in respect of the period since mid-2006, the period of two years during which they had not been paid. But they were not paid anything after August 2008. They were reinstated as members of the Teaching Service to the substantive positions that they held at the time of their dismissal or demotion but suspended without pay. It is the decision of the Teaching Service Commission, aided and abetted by the Secretary for Education, not to pay them after August 2008, which the plaintiffs say puts the defendants in contempt of court.

ELEMENTS OF CONTEMPT

6. The plaintiffs claim that the defendants have committed a ‘disobedience’ contempt: they have deliberately failed to comply with (or disobeyed) a court order. To succeed with this claim they must prove three things:

· the order was clear and unambiguous;

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

· the contemnors deliberately failed to comply with it.

7. Contempt of court is a criminal matter and the plaintiffs must prove the existence of the three elements beyond reasonable doubt. Each contemnor must be treated separately. If one element is not proven against a contemnor that person will be not guilty. If all elements are proven against any contemnor, he or she will be guilty and I will hear the parties on the question of punishment. (Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533; The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303; Peter Luga v Richard Sikani and The State (2002) N2286; Ome Ome Forests Ltd v Ray Cheong (2002) N2289; Richard Sikani v The State and Peter Luga (2003) SC807; Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447; Sr Dianne Liriope v Dr Jethro Usurup (2009) N3572.)

8. I now consider the three elements of the offence.

FIRST ELEMENT: WERE THE ORDERS OF 11 JULY 2008 CLEAR AND UNAMBIGUOUS?

9. Mr Kuira, for the plaintiffs, submits that the...