Sr Dianne Liriope v Dr Jethro Usurup, Chief Executive Officer, Modilon General Hospital (2009) N3931

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 July 2009
• Court: National Court
• Citation: (2009) N3931
• Docket Number: OS NO 765 OF 2007
• Year: 2009
• Judgement Number: N3931

Full Title: OS NO 765 OF 2007; Sr Dianne Liriope v Dr Jethro Usurup, Chief Executive Officer, Modilon General Hospital (2009) N3931

National Court: Cannings J

Judgment Delivered: 15 July 2009

N3931

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

Contemnor

Madang: Cannings J

2009: 7, 8, 15 July

PUNISHMENT

CONTEMPT – failure to comply with court orders – punishment – individual contemnor – determination of notional maximum penalties where maximum not prescribed by law – identification of starting point – assessment of mitigating and aggravating factors – whether committal to prison or fine is appropriate – sentence of six months imprisonment imposed.

The contemnor was found guilty of contempt of court for deliberately failing to comply with an order of the National Court. He took disciplinary action against a nurse employed by a Public Hospital of which he was the Chief Executive Officer without the leave of the National Court, while a court order was in place ordering that no disciplinary action be taken against the nurse without the leave of the court. A hearing was held to address the question of punishment. The contemnor argued that payment of a fine was sufficient punishment. The prosecuting party, however, submitted that committal to prison was the appropriate punishment.

Held:

(1) There being no maximum penalty for contempt of court, it is useful to set a notional maximum having regard to written laws providing for punishment for similar offences. An appropriate notional maximum is committal to prison for two years or a fine of K5,000.00 or both.

(2) A useful starting point for punishment purposes is the middle of the range: committal to prison for 12 months or a fine of K2,500.00 or both. The court should then consider punishment imposed in equivalent cases and the mitigating and aggravating factors of the present case to assess the form and extent of the appropriate punishment.

(3) A number of cases of the disobedience form of contempt of court have resulted in prison sentences of ten weeks to 18 months.

(4) Mitigating factors are that the contemnor: did not engage in any contumacious conduct other than disobeying the order of the court; appears to have acted on legal advice; co-operated with the court; has no prior conviction; has an exemplary record of public service; and is engaged in important community programs.

(5) Aggravating factors are that the contemnor: was guilty of contempt that could not be regarded as ‘technical’ or unintentional; was guilty of a flagrant disrespect and disregard of the Court, its authority and processes; breached the court’s order in a way that had an immediate and deleterious effect on another person; had been put on notice that he would be in contempt of court; did not plead guilty; and held a prominent position with a special duty to maintain the Rule of Law.

(6) The seriousness of the matter warranted committal to custody for a period of six months.

(7) Suspension of the punishment was not appropriate as it would tend to lessen the seriousness of the contempt and neutralise the deterrent effect of the punishment.

(8) Accordingly the contemnor was committed to custody for a period of six months.

Cases cited

The following cases are cited in the judgment:

Bishop Brothers v Ross Bishop (1989) N690

Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47

Doreen Liprin v The State (2001) SC673

Eric Vele v The State (2002) N2252

John Rumet Kaputin v The State [1979] PNGLR 559

Kalip Salo v Peter Gerari & Lawrence Polain (2005) N2923

Manu Kovi v The State (2005) SC789

Newsat Ltd v Telikom PNG Ltd (2007) N3673

Peter Luga v Richard Sikani and The State (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 Sikani v The State and Peter Luga (2003) SC807

Ross Bishop v Bishop Brothers [1988-89] PNGLR 533

Sr Dianne Liriope v Dr Jethro Usurup and Others (2009) N3572

Taiba Maima v Ben Hambakon Sma [1971-1972] PNGLR 49

The State v Dominic Kurai (2008) N3435

The State v James Yali (2005) N2989

The State v John Rumet Kaputin [1979] PNGLR 544

The State v Justin Ipa (2008) N3439

Yap v Tan [1987] PNGLR 227

PUNISHMENT

This is a decision on punishment for an individual found guilty of contempt of court.

Counsel

Y Wadau, for the plaintiff

T M Ilaisa, for the contemnor

15 July, 2009

1. CANNINGS J: In January this year the contemnor, Dr Jethro Usurup, was found guilty of contempt of court for failing to comply with an order of the National Court. I now have to decide on his punishment.

2. The National Court order that Dr Usurup failed to comply with was made by me in November 2006 in the course of court proceedings, OS No 838 of 2006, commenced by Modilon General Hospital against Sr Diane Liriope and Sr Elizabeth Wukawa and 140 other nurses. Dr Usurup was then the Chief Executive Officer of the Hospital. The nurses had allegedly gone on strike and the Hospital took them to court, seeking orders restraining them from conducting any ‘stop works’ and declarations that meetings held by them were unauthorised and unlawful.

3. On 20 November 2006 I ordered that the defendants – the nurses – were restrained from taking strike action without the leave of the court and also that:

No disciplinary action is to be taken against the defendants without the leave of the court.

4. Dr Usurup disobeyed that order in September 2007 when he took disciplinary action against Sr Liriope while the court proceedings were still current without seeking or obtaining the leave of the court. He laid two disciplinary charges against her: absconding from official duty and publicly making disparaging written comments on his administration of the Hospital without the consent of an authorised officer. In October 2007 he found her guilty of both charges and dismissed her from the Public Service.

5. Sr Liriope then commenced contempt proceedings, in OS No 765 of 2007, against Dr Usurup and seven others including the chairman of the Hospital board, the Hospital’s lawyer and five of the Hospital’s staff. The others were found not guilty as the court order had not been served on them and/or they had not failed to comply with it.

6. Dr Usurup was found guilty as the order of 20 November 2006 was clear and unambiguous, he had been properly served and he was the person who deliberately failed to comply with it. He wilfully disobeyed the order.

7. Further details of the circumstances in which the contempt was committed are set out in the judgment on verdict, Sr Dianne Liriope v Dr Jethro Usurup and Others (2009) N3572.

ANTECEDENTS

8. The contemnor has no prior convictions.

ALLOCUTUS

9. The contemnor was given the opportunity to address the court on the question of punishment. He said:

If the court has found me guilty I am truly sorry. I did not do it intentionally. It was done in my capacity as Chief Executive Officer of Modilon General Hospital.

PERSONAL PARTICULARS

10. Dr Usurup is aged in his early 50s and is from New Ireland Province. He has been married for 31 years to his wife Leah and they have four children. He is an active member of the Catholic Church and involved in sports administration.

11. He is a medical doctor by profession, having graduated from the University of Papua New Guinea in 1978, and has held positions at various hospitals throughout the country. He for a long period held a very senior position in Defence Force, holding the rank of Lieutenant Colonel and being responsible for supervision of medical services to the Force. He was at one stage the Medical Officer for the University of Papua New Guinea. He has worked widely in the area of public health and in the mid-1990s was Chief Medical Officer with both Misima and Porgera Mines. He has participated extensively in education programs in the medical profession and has been instrumental in implementation of many community health initiatives.

12. He was appointed Chief Executive Officer of Modilon General Hospital in 2004 and held that position until the expiry of his term of appointment in 2008. He is currently employed by JTA International, holding the position of Program Director, Lihir Islands Community Health Program. He is required to deal with the senior management of organisations such as the Department of Health, Lihir Mining Ltd, University of Queensland, Ok Tedi Mining Ltd, the PNG Institute of Medical Research and the New Ireland Provincial Government.

13. Character references have been provided to the Court by Community Health Coordinator of Lihir Gold Ltd, Dr Billy Selve, the Vice-President (Administration) of Divine Word University, Mr Benjamin Naing, and the Secretary for Health, Dr Clement Malau. All referees speak highly of Dr Usurup’s professional competence, commitment, leadership qualities and personal integrity.

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