Sr Dianne Liriope v Dr Jethro Usurup, Chief Executive Officer, Modilon General Hospital and Fr Jan Czuba, Chairman, Modilon General Hospital and Mr Thomas More Ilaisa, Principal, Thomas More Ilaisa Lawyers & Attorneys and Mr John Manalau (2009) N3572

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 January 2009
• Court: National Court
• Citation: (2009) N3572
• Docket Number: OS NO 765 OF 2007
• Year: 2009
• Judgement Number: N3572

Full Title: OS NO 765 OF 2007; Sr Dianne Liriope v Dr Jethro Usurup, Chief Executive Officer, Modilon General Hospital and Fr Jan Czuba, Chairman, Modilon General Hospital and Mr Thomas More Ilaisa, Principal, Thomas More Ilaisa Lawyers & Attorneys and Mr John Manalau (2009) N3572

National Court: Cannings J

Judgment Delivered: 27 January 2009

N3572

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 765 OF 2007

SR DIANNE LIRIOPE

Plaintiff

V

DR JETHRO USURUP

CHIEF EXECUTIVE OFFICER, MODILON GENERAL HOSPITAL

First Contemnor

FR JAN CZUBA

CHAIRMAN, MODILON GENERAL HOSPITAL

Second Contemnor

MR THOMAS MORE ILAISA

PRINCIPAL, THOMAS MORE ILAISA LAWYERS & ATTORNEYS

Third Contemnor

MR JOHN MANALAU

ADMINISTRATION OFFICER, MODILON GENERAL HOSPITAL

Fourth Contemnor

SR MARY KEHENO, ACTING DIRECTOR

NURSING SERVICES, MODILON GENERAL HOSPITAL

Fifth Contemnor

MR ANTONNIE KALISA

DIRECTOR, FINANCE, MODILON GENERAL HOSPITAL

Sixth Contemnor

MR WALTER BAN, HUMAN RESOURCES MANAGER

MODILON GENERAL HOSPITAL

Seventh Contemnor

SR CHRISTINE GAWI, DIRECTOR, NURSING SERVICES,

MODILON GENERAL HOSPITAL

Eighth Contemnor

Madang: Cannings J

2008: 26 May, 24 October

2009: 27 January

VERDICTS

CONTEMPT – disobedience contempt – alleged failure to comply with court order: failure to seek leave of the court prior to taking disciplinary action under Public Services (Management) Act – 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 court proceedings regarding industrial unrest by nurses at a hospital, which stated: “No disciplinary action is to be taken against the defendants [nurses] without the leave of the court”. Ten months later the CEO of the hospital laid disciplinary charges against the nurse who was the principal defendant in the earlier proceedings. Leave of the court was not sought. The nurse was found guilty and dismissed from the Public Service. She commenced court proceedings against the CEO and the chairman of the hospital board and six hospital officers, seeking orders that, amongst other things, they be punished for contempt of court.

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) The order was clear and unambiguous: it was not confined to taking disciplinary action against nurses for engaging in strike action.

(3) The order was properly served on the first and second contemnors, but there was insufficient evidence of service of the order on the other 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) The order was disobeyed as leave of the court was not obtained to commence disciplinary action. The person who failed to comply was the first contemnor, the CEO. The other contemnors facilitated it but did not “take” disciplinary action against the plaintiff.

(6) Failure to comply was deliberate as, though the first contemnor might have honestly believed that he could take disciplinary action without leave of the court, that belief was mistaken and, in the circumstances, not reasonable. Moreover, he made a considered decision to proceed with disciplinary action after being put on notice that he would be breaching the court’s order and be in contempt of court.

(7) Accordingly the first contemnor was found guilty. The other contemnors were found not guilty.

Cases cited:

Modilon General Hospital v Sr Diane Liriope, Sr Elizabeth Wukawa & 140 Other Nurses, OS No 838 of 2006

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

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

Abbreviations

The following abbreviations appear in the judgment:

Bros – Brothers

CEO – chief executive officer

CJ – Chief Justice

DCJ – Deputy Chief Justice

ICCC – Independent Consumer and Competition Commission

J – Justice

K – Kina

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

WS – writ of summons

NOTICE OF MOTION

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

Counsel

Y Wadau, for the plaintiff

T M Ilaisa, for the contemnors

27 January, 2009

1. CANNINGS J: The plaintiff, Sr Dianne Liriope, a nurse by profession, was the training coordinator at Modilon General Hospital, Madang, until she was dismissed on 30 October 2007. She claims to have been unlawfully dismissed. She says the disciplinary action taken against her was contrary to an order of the National Court, made on 20 November 2006, which prohibited disciplinary action against her or other nurses without the leave of the court. Leave of the court was not sought or obtained before disciplinary action was taken against her.

2. She claims that the person who laid the disciplinary charges, found her guilty and dismissed her from the Public Service – the hospital’s CEO, Dr Jethro Usurup – is guilty of contempt of court.

3. She has charged Dr Usurup, the first contemnor, with contempt, along with seven others:

· second contemnor, Fr Jan Czuba, chairman of the hospital board, who is alleged to have instructed Dr Usurup to lay the charges;

· third contemnor, Mr Thomas More Ilaisa, the hospital’s lawyer, who is alleged to have drafted the charges;

· fourth contemnor, Mr John Manalau, the CEO’s administration officer, who served the charges on Sr Liriope;

· fifth contemnor, Sr Mary Keheno, the hospital’s acting director of nursing services, who is a member of the hospital’s disciplinary committee, which resolved to lay the charges, and who witnessed and signed service of the penalty of dismissal on Sr Liriope;

· sixth contemnor, Mr Antonnie Kalisa, the hospital’s director of finance and administration, who is a member of the hospital disciplinary committee, which resolved to lay the charges;

· seventh contemnor, Mr Walter Ban, the hospital’s human resources manager, who is a member of the hospital disciplinary committee, which resolved to lay the charges;

· eighth contemnor, Sr Christine Gawi, the hospital’s director of nursing services, who is a member of the hospital disciplinary committee, which resolved to lay the charges.

4. This is my ruling on whether any one or more of the eight contemnors (persons alleged to have committed contempt of court) is guilty of contempt. I am not, at this stage, ruling on any other issues in the originating summons, such as whether Sr Liriope’s dismissal should be quashed.

THE ORDER OF 20 NOVEMBER 2006

5. The order was made in court proceedings known as OS No 838 of 2006, Modilon General Hospital v Sr Diane Liriope, Sr Elizabeth Wukawa & 140 Other Nurses. There was industrial unrest at the hospital. The nurses, led by Sr Liriope and Sr Wukawa, allegedly went on strike. The hospital, a corporation established under the Public Hospitals Act 1994, commenced proceedings against the nurses. Under the originating summons, the hospital sought orders restraining the nurses from conducting any ‘stop works’ and declarations that meetings held by the nurses were unauthorised and unlawful and that a ‘stop work’ on 13 November 2006 was in contravention of the Public Services (Management) Act.

6. I was the circuit Judge in Madang in November 2006. The matter came before me on several occasions. The hospital sought interim orders that the defendants be restrained from conducting stop works and that they return to normal duties forthwith.

7. On 13 November 2006 I ordered, amongst other things, that:

The defendants are each and severally restrained from conducting any “STOP WORK” until this case is dealt with or a court of competent jurisdiction orders otherwise.

… the defendants should return to normal duties forthwith.

8. On 20 November 2006 I ordered that:

1. The order of 13 November 2006 is dissolved and replaced by the following.

2. The defendants are restrained from taking strike action without the leave of the court.

3. The defendants may assemble and hold meetings amongst themselves to discuss industrial issues provided that such meetings do not exceed one hour, do not exceed more than two per week and do not interfere with the orderly operation of the hospital.

4. No disciplinary action is to be taken against the defendants without the leave of the court. [Emphasis added]

5. The orders are returnable at the first time set for motions at the next sittings of the National Court in Madang.

6. The substantive matter shall be put on the call-over list for a trial date to be set.

9. Order No 4 is the...