Peter Luga v Richard Sikani Commissioner, Correctional Services and The Independent State of Papua New Guinea (2002) N2285

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 01 October 2002
• Court: National Court
• Citation: (2002) N2285
• Year: 2002
• Judgement Number: N2285

Full Title: Peter Luga v Richard Sikani Commissioner, Correctional Services and The Independent State of Papua New Guinea (2002) N2285

National Court: Sakora J

Judgment Delivered: 1 October 2002

N2285

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 503 of 2001

BETWEEN:

PETER LUGA

Plaintiff

AND:

RICHARD SIKANI

COMMISSIONER, CORRECTIONAL SERVICES

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani : Sakora J

2002 : 11, 13, 18 & 25 June

01 October

Contempt – Contempt of Court – Disobedience of court order – What constitutes – Order directing restoration of officer to the payroll and payment of lost wages and entitlements – Order preventing demotion and transfer of officer – Obligation to obey orders and directions until discharged or set aside – Contempt established.

Contempt – Contempt power – Source and purpose of – Procedural safeguards – Onus and standard of proof – Punishment for contempt – Power and scope of – Constitution, ss 37(2) & (4), 160 (2), 163 (2), 225, Sch. 2.2., National Court Rules, O 14, rr 37 – 40, 41, 42, 43, 45, 49 – 50; O 16, r 3.

Cases Cited:

The following cases are cited in the judgment:

Re Passingan Taru [1982] PNGLR 292.

Re Awaita [1985] PNGLR 179.

Robinson v. The State [1986] PNGLR 307

Yap v. Tan [1987] PNGLR 227.

Poka v. The State [1988] PNGLR 218

Ross Bishop & Ors v. Bishop Bros. Engineering Pty Ltd & Ors [1988-89] PNGLR 533

Paul Metta v. The State [1992] PNGLR 176

Marko Iatinata v. Denison Toiwat & Pennington Valaun [1994] PNGLR 568.

The State v. Foxy Kia Tala [1995] PNGLR 303.

The State v. Lucas Sasoruo (Unreported, N1192 of 1996)

The State v. Raymond Tupundu (Unreported, N1536 of 1996).

Leto Pup v. Yangao Mara (Unreported, unnumbered of 3 April 1996)

Attorney-General & Ors v. Dr Pirouz Hamidian-Rad (Unreported, SC 618 of October,1999)

Chuck v. Cremer (1946) 47 ER 820.

Ex Parte Robinson 86 US. 505,510 (1873).

Helmore v. Smith (1886) 35 Ch D 436.

Ambard v. A-G for Trinidad & Tobago [1936] AC 3222.

Hadkinson v. Hadkinson [1952] All ER 567.

A-G v. Times Newspapers [1974] AC 273

Putnin (as Liquidator of Maff Investments P/L (in Liquidation) v. Fuller (1991) 3 WAR 546.

The following texts are referred to in the judgment:

The Law Reform Commission (Australia) Report (No. 35)

On Contempt (AGPS, Canberra, 1987)

Halsbury’s Laws of England (4th ed., Vol. 9, 1974).

Constitution of the Independent State of Papua New Guinea.

National Court Rules.

Oxford Dictionary of Law (4th ed., 1997)

Osborn’s Concise Law Dictionary (6th ed)

A. Baniyamai for the Plaintiff.

M. Kua for the Defendants.

01 October, 2002

SAKORA J: On 11 and 13 June 2002, I heard an application by the plaintiff seeking orders for contempt of court and punishment for such against the defendant. The application was moved pursuant to a Notice of Motion filed 23 May 2002, and pursuant also to Order 14 (Division 6) of the National Court Rules (NCR). And, as required, a Statement of Charges was duly filed and served personally on the defendant together with the Notice of Motion.

It is necessary that the Statement of Charges be set out in full, and this is done so as follows:

Statement of Charges.

1. By way of an order granted by the National Court on 22 April 2002, the defendants were ordered (inter alia) to:

(a) restore the plaintiff to the Correctional Services payroll forthwith;

(b) pay the plaintiff’s lost salaries and entitlements from 29 January 2001 to date forthwith.

1. It is alleged that you, RICHARD SIKANI, Commissioner for Correctional Services and the first defendant in this proceedings are in contempt of the orders of the National Court dated 22 April 2002 and as particularised under paragraphs (a) and (b) above by:-

(a) failing to restore the plaintiff to the Correctional Services payroll forthwith in accordance with paragraph 1 of the Court Order;

(b) failing to pay the plaintiff’s lost salaries and entitlements from 29 January 2001 to date forthwith in accordance with paragraph 2 of the Court Order.

In support of the Statement of Charges and the Motion, the plaintiff swore to and filed an affidavit on 22 and 23 May 2002 respectively. In addition the plaintiff referred to and relied on the supporting affidavit of his counsel sworn and filed 31 May 2002 together with his own subsequent affidavit sworn and filed on 7 June 2002. Further support for the plaintiff’s case was sought from or by the subpoenas that had been duly served on the following officers of the Correctional Services: Messrs Phillip Eka, Martin Balthasar and Charles Farari, and Mrs Sibona Daton.

It is noted that after close of evidence for both parties and before I heard submissions from counsel, the plaintiff was served with a Special Payment Advice (SPA) on Sunday 16 June 2002, which action effectively, according to his counsel, ceased or removed him from the Correctional Services payroll. The SPA was dated 14 June 2002.

Upon the Court resuming on 18 June 2002 learned counsel for the plaintiff drew the attention of the court to the above-stated latest developments, this new turn of events in this matter, and, under the circumstances, applied to have the case re-opened to enable evidence of these to be adduced. Whilst not disputing what had happened to the plaintiff as briefly outlined by his counsel (supra), learned counsel for the defendant objected to the application to re-open and adduce evidence, contending that the “latest developments” were not relevant to the contempt proceedings.

I overruled the defendant’s objection on the basis that the recent events as adverted to by counsel was indeed relevant to the allegations the subject of the proceedings. The parties were then directed to file and serve on each other any affidavits that they may need to rely on. On 25 June 2002 the case was re-opened and tried, and the decision has been reserved till now.

Background to the Contempt Charges

This contempt proceedings arises directly from the decision of the National Court in an application for judicial review pursuant to Order 16 NCR. The application for leave to apply for judicial review was initiated by the filing of an Originating Summons and the accompanying Notice of Motion on 15 August 2001. An amended Notice of Motion was filed the very next day 16 August 2001, seeking the necessary leave under Order 16 r 3 NCR.

It is noted that before the hearing of the leave application Consent Orders were granted on 17 August 2001 restraining the defendants and their agents “from taking any disciplinary action against the plaintiff and from evicting the plaintiff and his family from the plaintiff’s current residence at Corrective Institution in Bomana pending the substantive hearing”.

Leave was granted on 10 September 2001 and duly entered on 25 September 2001. The interim injunctive orders of 17 August 2001 (supra) were extended by the orders granting leave till the substantive review hearing. On 5 April 2002, the Court heard the substantive application for judicial review which sought the following main orders for relief:

1. That the decision of the first defendant to cease the plaintiff’s salaries and or entitlements on 29 January 2001 be quashed as being null and void and of no effect and that the plaintiff be restored to his original position.

2. That the decision of the first defendant to demote and transfer the plaintiff from the CIS Headquarters in the National Capital District to the Lakiemata jail in the West New Britain Province on 17 April 2001 be quashed as being null and void and of no effect.

The learned trial judge decided in favour of the plaintiff and granted the application on 22 April 2002 with the following orders:

1. The decision of the first defendant to cease the plaintiff’s salary on the 29 (sic) January 2001 is quashed and the defendants shall restore the plaintiff to the Correctional Services payroll forthwith.

2. The defendants shall pay the plaintiff’s lost salaries and entitlements from the 29 (sic) January...