Ome Ome Forests Ltd v Ray Cheong, Jackson Whong and Bill Garey (2002) N2289

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 08 October 2002
• Court: National Court
• Citation: (2002) N2289
• Docket Number: Andrew Daiva and Ome Ome Forests Ltd v Lawrance Pukali and Benedict Waede
• Year: 2002
• Judgement Number: N2289

Full Title: Andrew Daiva and Ome Ome Forests Ltd v Lawrance Pukali and Benedict Waede; Ome Ome Forests Ltd v Ray Cheong, Jackson Whong and Bill Garey (2002) N2289

National Court: Kandakasi J

Judgment Delivered: 8 October 2002

1 CONTEMPT OF COURT—PRACTICE AND PROCEDURE—Contempt Proceedings—Motion for demurrer filed on day of hearing—Treated as alleged contemnors' response to charge and evidence against them—No need to give it a separate hearing on grounds of late filing and in any case the motion is the alleged contemnors' response to the charge.

2 CONTEMPT OF COURT—PRACTICE AND PROCEDURE—Orders subject of contempt proceedings must be clear and unambiguous to alleged contemnor—Issue taken on service of orders by two out of three defendants—Service or notice of existence of orders communicated by single mode—Numerous requests and follow ups made for compliance of orders—No issue taken—Service deemed to have been effected on all.

3 CONTEMPT OF COURT—PRACTICE AND PROCEDURE—Court Orders made and directed against companies—Contempt proceedings arising due to company officials conduct—Companies being only separate persons legally but have no independent mind—Exceptions to rule in Foss v Harbottle extended to include action against company officials responsible for breaching and being in contempt of Court pursuant to Sch2.3 of the Constitution—Company officials proper defendants in contempt of Court cases as a company has no separate mind from that of its officers—Corporate veil lifted to allow for prosecution against company officials in the interest of justice in all of the circumstances to do so.

4 CONTEMPT OF COURT—Orders made for payment of monies due under a contract by two companies—The companies through their relevant officers failed to comply with the Court Orders and made payments contrary to Court Orders—No argument as to meaning and effect of orders—Not being served and being under pressure to pay only argument raised—Orders found to have been served on all of the defendants—Even after service of contempt proceedings no step taken to comply with Court orders—Being under pressure is not reasonable excuse for failing to take appropriate steps to comply or to avoid being in contempt of Court—Failure to comply and acting contrary to orders found to be deliberate and continuing—Verdict of guilty returned.

5 COMPANY LAW—Court orders directing companies to retain and make payments of monies due to the another company—Court orders once made and served or brought to notice of responsible company official, the orders must be complied with—If a company wishes not to comply with the Court order, it must apply for a variation, set aside, stay or a quashing of the orders as the case may be within the period for compliance of the orders under the Rules or within such period as the Court may fix—failure by a company official to comply with a Court order that has not be varied, stayed or quashed despite repeated requests for compliance and acts contrary to orders amounts to contempt of Court—Responsible officers of company in contempt appropriate defendants as company does not have mind of its own except only through that of its proper officials—The proper plaintiff rule in Foss v Harbottle does not apply—Exceptions to that rule extended to include contempt of Court cases against company officials because contempt of Court is serious and criminal in nature—Corporate veil no protect for company official in contempt of Court in the interest of justice in all of the circumstances.

6 Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533, Concord Pacific Ltd v Thomas Nen (2000) N1981, Soso Tomu v The Independent State of Papua New Guinea (2002) N2190, Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106, SCR No 4 of 1990; Re Meeting of Parliament [1994] PNGLR 141, SCR No 4 of 1980; Re Petition of MT Somare [1981] PNGLR 265, AGC (Pacific) Ltd v Woo International Pty Ltd [1992] PNGLR 100, Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102, Neville v Privatization Commission (2001) N2184, Miller v Knox (1838) 4 Bing NC 574; 6 Scott 1; 132 ER, 910, Re Sheppard and Sheppard (1976) 67 DLR (3d) 592, Stancomb v Trowbridge UDC [1910] 2 Ch 100, Fairclough v Manchester Ship Canal Co [1897] NN 7, Hadkinson v Hadkinson [1952] 2 All ER 567, Salomon v Salomon & Co Ltd [1897] AC 22, Floyd (1909) 53 Sol Jo 790, Foss v Harbottle [1843] 2 Hare 461; Ch 12 LJ 319, Russell v Wakefield Waterworks Co [1875] LR 20 Eq 474, Burland v Earle [1902] AC 83, Johnson v Lyttle's Iron Agency (1877) 5 Ch D 687, Atwool v Merryweather [1867] LR 5 Eq 464n, Cotter v National Union of Seamen [1929] 2 Ch 58 and Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] 1 All ER 354, Nyali Ltd v The A–G of Kenya [1956] 1 QB 1 and Packer v Packer [1954] P 15 referred to

___________________________

N2289

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 81 OF 2001

BETWEEN:

ANDREW DAIVA

First Plaintiff

AND:

OME OME FORESTS LTD

Second Plaintiff

AND:

LAWRANCE PUKALI

First Defendant

AND:

BENEDICT WAEDE

Second Defendant

CONTEMPT CHARGE

OME OME FORESTS LTD

Complainant

AND

RAY CHEONG

First Defendant

AND

JACKSON WHONG

AND

BILL GAREY

Third Defendants

WAIGANI: KANDAKASI, J.

2002: 14th April

17th July

08th October

CONTEMPT OF COURT - PRACTICE & PROCEDURE – Contempt Proceedings – Motion for demurrer filed on day of hearing – Treated as alleged contemnors’ response to charge and evidence against them – No need to give it a separate hearing on grounds of late filing and in any case the motion is the alleged contemnors’ response to the charge.

CONTEMPT OF COURT – PRACTICE & PROCEDURE – Orders subject of contempt proceedings must be clear and unambiguous to alleged contemnor – Issue taken on service of orders by two out of three defendants – Service or notice of existence of orders communicated by single mode – Numerous requests and follow ups made for compliance of orders – No issue taken – Service deemed to have been effected on all.

CONTEMPT OF COURT – PRACTICE & PROCEDURE – Court Orders made and directed against companies – Contempt proceedings arising due to company officials conduct – Companies being only separate persons legally but have no independent mind – Exceptions to rule in Foss v. Harbottle extended to include action against company officials responsible for breaching and being in contempt of Court pursuant to schedule 2.3 of the Constitution – Company officials proper defendants in contempt of Court cases as a company has no separate mind from that of its officers – Corporate veil lifted to allow for prosecution against company officials in the interest of justice in all of the circumstances to do so.

CONTEMPT OF COURT – Orders made for payment of monies due under a contract by two companies – The companies through their relevant officers failed to comply with the Court Orders and made payments contrary to Court Orders – No argument as to meaning and effect of orders – Not being served and being under pressure to pay only argument raised – Orders found to have been served on all of the defendants – Even after service of contempt proceedings no step taken to comply with Court orders – Being under pressure is not reasonable excuse for failing to take appropriate steps to comply or to avoid being in contempt of Court – Failure to comply and acting contrary to orders found to be deliberate and continuing – Verdict of guilty returned.

COMPANY LAW – Court orders directing companies to retain and make payments of monies due to the another company – Court orders once made and served or brought to notice of responsible company official, the orders must be complied with – If a company wishes not to comply with the Court order, it must apply for a variation, set aside, stay or a quashing of the orders as the case may be within the period for compliance of the orders under the Rules or within such period as the Court may fix – failure by a company official to comply with a Court order that has not be varied, stayed or quashed despite repeated requests for compliance and acts contrary to orders amounts to contempt of Court – Responsible officers of company in contempt appropriate defendants as company does not have mind of its own except only through that of its proper officials – The proper plaintiff rule in Foss v. Harbottle does not apply – Exceptions to that rule extended to include contempt of Court cases against company officials because contempt of...