Newsat Limited v Telikom PNG Limited and Independent Consumer and Competition Commission and The Independent State of Papua New Guinea (2008) N3673

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 29 August 2008
• Citation: (2008) N3673
• Docket Number: WS NO 1350 OF 2006
• Year: 2008

Full Title: WS NO 1350 OF 2006; Newsat Limited v Telikom PNG Limited and Independent Consumer and Competition Commission and The Independent State of Papua New Guinea (2008) N3673

National Court: Cannings J

Judgment Delivered: 29 August 2008

PUNISHMENT

CONTEMPT—failure to comply with court orders—punishment—corporate contemnor—determination of maximum penalty where maximum not prescribed by law—identification of starting point—assessment of mitigating and aggravating factors—fine of K5 million imposed.

The contemnor, a large corporation, was found guilty of contempt of court for deliberately failing to comply with an order of the National Court. A hearing was then held to address the question of punishment. The contemnor argued that payment of the prosecuting party’s legal costs was sufficient punishment and no fine should be payable. The prosecuting party, however, submitted that a substantial fine, in the order of K5 million to K10 million, should be imposed.

Held:

(1) There being no maximum penalty prescribed by law for contempt of court, it is appropriate to fix a notional maximum for a corporation by considering the size and status of the corporation and the maximum penalties under the legislation governing its business and affairs.

(2) An appropriate notional maximum in this case is K10 million.

(3) A useful starting point for punishment purposes is the middle of the range: K5 million; and then the court should look at mitigating and aggravating factors to determine the amount of the fine.

(4) Mitigating factors are: the contemnor is a ‘first-time offender’; the contemnor has, to some extent, complied with the court order since being found guilty of contempt; imposition of a substantial fine may have an adverse impact on the company.

(5) Aggravating factors are: the contempt of which the contemnor is guilty cannot be regarded as ‘technical’; the contemnor did not plead guilty; the contemnor is a large, prominent, State-owned corporation, with a special duty to maintain the Rule of Law; lack of contrition.

(6) After weighing the mitigating and aggravating factors, it was appropriate that the fine be set at the starting point.

(7) Accordingly, the punishment imposed for contempt of court in this case was a fine of K5 million, payable, through the Registrar, to the Consolidated Revenue Fund, within 30 days.

Cases cited

The following cases are cited in the judgment:

Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47; Manu Kovi v The State (2005) SC789; Newsat Ltd v Telikom PNG Ltd (2007) N3447; Peter Luga v Richard Sikani (2002) N2286; Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448; Re Contempt of Court Proceedings against Valentine Kambori (No 3) (2003) N2490; Richard Charles Sikani v The State (2005) SC807; Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533; The State v Bart Kiohin Mais (2005) N2811; The State v Dominic Kurai (2008) N3435; The State v James Yali (2006) N2989; The State v Justin Ipa (2008) N3439; Yap v TS Tan [1987] PNGLR 227

Abbreviations

The following abbreviations appear in the judgment:

CEO—chief executive officer

ICCC—Independent Consumer and Competition Commission

J—Justice

Ltd—Limited

N—National Court judgment

NEC—National Executive Council

No—number

PNG—Papua New Guinea

PNGLR—Papua New Guinea Law Reports

Pty—Proprietary

SC—Supreme Court judgment

v—versus

VSAT—very small aperture terminal

WS—writ of summons

PUNISHMENT

This is the punishment of a company for contempt of court.

29 August, 2008

1. CANNINGS J: In May 2007 I found the contemnor, Telikom PNG Ltd, guilty of contempt of court for failing to comply with an order of the National Court. I now have to decide what penalty, if any, Telikom should be subject to.

2. The National Court order was made by Justice Salika in September 2006. It followed a motion by the plaintiff, Newsat Ltd, which had, a year earlier, entered into a contract with Telikom for provision of satellite-based broadband, called VSAT services in PNG. Newsat commenced legal proceedings against Telikom and two other parties, claiming damages and other remedies, including injunctions, against Telikom. Salika J upheld Newsat’s motion and ordered Telikom to do certain things in relation to the contract. Amongst other things, his Honour ordered Telikom to:

• accept service requests/customer contracts submitted to it for the provision of Newsat services and received by it prior to the close of business on 26 September 2006 (of which there were at least 101); and

• perform its obligations to customers pursuant to all service requests/customer contracts accepted by it prior to the close of business on 26 September 2006.

3. Newsat claimed that Telikom did not comply with the order and brought a contempt motion against Telikom under Division 14.6 of the National Court Rules.

4. After a hotly contested trial, I held that Salika J’s order was clear and unambiguous, that it was properly served on Telikom, that Telikom failed to comply with it (by not accepting any of the service requests/customer contracts for provision of Newsat services submitted to it) and that the failure to comply was deliberate. I concluded that Telikom had wilfully disobeyed Salika J’s order and that it was therefore guilty of contempt of court.

5. Further details of the circumstances in which the contempt was committed are set out in Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447.

DECISION MAKING PROCESS

6. To...