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
• Court: National Court
• Date: 27 January 2009
• Citation: (2009) N3572
• Docket Number: OS NO 765 OF 2007
• Year: 2009

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

Administration Officer, Modilon General Hospital and Sr Mary Keheno, Acting Director Nursing Services, Modilon General Hospital and Mr Antonnie Kalisa

Director, Finance, Modilon General Hospital and Mr Walter Ban, Human Resources Manager, Modilon General Hospital and Sr Christine Gawi, Director, Nursing Services, Modilon General Hospital (2009) N3572

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 (2007) N3447; Ome Ome Forests Ltd v Ray Cheong (2002) N2289; Peter Luga v Richard Sikani (2002) N2286; Richard Charles Sikani v The State (2005) SC807; Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533; The State v Foxy Kia Tala; Re 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.

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...