Tzen Pacific Limited v Innovest Limited and Kanawi Pouru and Seri Mitige and Yii Hii Luk and Walter Lunga and George Kaore (2015) SC1454

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Kariko J, Geita J
• Judgment Date: 21 August 2015
• Court: Supreme Court
• Citation: (2015) SC1454
• Docket Number: SCA No118 of 2014
• Year: 2015
• Judgement Number: SC1454

Full Title: SCA No118 of 2014;Tzen Pacific Limited v Innovest Limited and Kanawi Pouru and Seri Mitige and Yii Hii Luk and Walter Lunga and George Kaore (2015) SC1454

Supreme Court: Cannings J, Kariko J, Geita J

Judgment Delivered: 21 August 2015

SC1454

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 118 OF 2014

TZEN PACIFIC LIMITED

Appellant

V

INNOVEST LIMITED

First Respondent

KANAWI POURU

Second Respondent

SERI MITIGE

Third Respondent

YII HII LUK

Fourth Respondent

WALTER LUNGA

Fifth Respondent

GEORGE KAORE

Sixth Respondent

Waigani : Cannings J, Kariko J, Geita J

2015: 28th April, 21st August

PRACTICE AND PROCEDURE – objection to competency of appeal against decision of National Court to discharge contemnors of contempt of court charge – grounds of objection: no right to appeal against an acquittal on a criminal charge; necessity to develop underlying law – whether appeal incompetent.

The respondents to a Supreme Court appeal filed a notice of objection to competency of the appeal. The appeal was against the judgment of the National Court to dismiss a notice of motion seeking punishment of the respondents for contempt of court and to discharge the respondents. The objection to competency was based on two grounds: (1) there can be no appeal against an acquittal in criminal proceedings, and here the respondents were acquitted in criminal proceedings; and (2) it is necessary, in order to develop the underlying law, to dismiss the appeal as incompetent.

Held:

(1) Ground 1 was dismissed as, though there is no right of appeal against acquittal in conventional criminal proceedings, which are governed by Division III.3 of the Supreme Court Act, contempt proceedings are unique and are not the type of criminal proceedings governed by Division III.3 of the Supreme Court Act. A right of appeal was available in this case under Division III.2 of the Act, which was properly invoked by the appellant.

(2) Ground 2 was dismissed as it was not a ground of objection. It was a submission, which was in any event misconceived.

(3) Both grounds of objection being dismissed, the objection to competency was dismissed. Costs followed the event.

Cases cited

The following cases are cited in the judgment:

Andrew Kwimberi v The State (1998) SC545

Application by Herman Joseph Leahy (2006) SC981

Bishop Bros Engineering Pty Ltd v Ross Bishop (1989) N690

Commissioner General of Internal Revenue v Bougainville Copper Ltd (2008) SC920

Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47

Director of the Serious Fraud Office v O’Brien [2014] AC 1246

Emma Ombu Karakabo v Public Prosecutor (2015) N5909

Geoffrey Vaki v Gari Baki (2014) N5612

In the matter of charges of contempt of court against Alfred Manase, Margareth

John Kil v The State (1991) SC406

Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112

Lionel Gawi v The State (2006) SC850

Parua & Sam Bonner (2014) SC1394

PNG Coffee Industry Board v Panga Coffee Factory Pty Ltd [1990] PNGLR 363

Public Employees Association of PNG v Napoleon Liosi [1988-89] PNGLR 585

Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206

Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police (2014) SC1388

Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533

Tzen Pacific Ltd v Innovest Ltd (2014) N5716

21 ILGS Gobe Project Area Incorporated Land Groups v MRDC (2006) N3066

OBJECTION

This was an objection to competency of an appeal against a judgment of the National Court in contempt proceedings.

Counsel

M M Varitimos & P Tabuchi, for the Appellant

I R Shepherd, for the First, Second, Third, Fourth & Fifth Respondents

21st August, 2015

1. BY THE COURT: The respondents, Innovest Ltd and four others, object to the competency of an appeal filed by the appellant, Tzen Pacific Ltd.

2. The appeal is against the judgment of the National Court, constituted by Justice Hartshorn, dismissing a motion by the appellant to punish the respondents for contempt of court and to discharge them in relation to a charge of contempt of court.

THE JUDGMENT

3. The judgment was given on 1 August 2014 in the course of civil proceedings, WS No 1121 of (2010), Tzen Pacific Ltd v Innovest Ltd, in which the appellant, Tzen Pacific, claimed damages against the first respondent, Innovest, for civil wrongs allegedly committed by Innovest in connection with a timber project in West New Britain. An order had been made in those proceedings on 19 November 2010 restraining Innovest from interfering or dealing with another timber company in connection with the timber project.

4. In 2014 Tzen Pacific commenced contempt proceedings, by notice of motion, against Innovest and the five other respondents to this appeal, alleging that they were each in contempt of the Court by disobeying the order of 19 November 2010. A trial of the contempt of court charges commenced. All respondents (contemnors in the National Court) pleaded not guilty, evidence was presented and submissions were made on behalf of the parties to determine whether the respondents were guilty of contempt. In the course of submissions the respondents argued as a preliminary issue that the motion for punishment for contempt should be dismissed as Tzen Pacific no longer had a personal stake or special interest in the contempt matter (as its timber licence had been cancelled) and that they (the respondents) should be discharged.

5. The primary Judge upheld that argument dismissed the motion for contempt and discharged the respondents (Tzen Pacific Ltd v Innovest Ltd (2014) N5716).

THE APPEAL

6. Tzen Pacific filed a notice of appeal. The grounds of appeal include that the primary Judge erred by not being satisfied that Tzen Pacific had a personal stake or special interest in the contempt proceedings.

THE OBJECTION

7. The first five respondents filed, under Order 7, Rule 15 of the Supreme Court Rules, a notice of objection to competency of the appeal. The sixth respondent, George Kaore, has not objected to competency of the appeal and has taken no part in the hearing of the objection.

8. The respondents’ objection is based on two grounds:

(1) there can be no appeal against an acquittal in criminal proceedings and in this case the respondents were acquitted of the criminal charge of contempt of court; and

(2) it is necessary, in order to develop the underlying law, to dismiss the appeal as incompetent.

GROUND 1: NO APPEAL AGAINST ACQUITTAL IN CRIMINAL PROCEEDINGS

9. This ground is set out as follows:

1.1 The judgment which is appealed from, given on 1 August 2014 at Waigani in National Court proceedings WS 1121 of 2010, was to dismiss the Appellant/Plaintiff’s Amended Notice of Motion filed 14 November 2013 in which the Appellant/Plaintiff sought pursuant to Order 14 Rule 42 of the National Court Rules orders to punish each of the Respondents for contempt of National Court orders made 19 November 2010.

1.2 The proceedings for contempt are criminal in nature and the Court in dealing with such proceedings must be satisfied beyond reasonable doubt that the elements of the offence had been proven.

1.3 The rights of appeal in criminal proceedings derive from Section 22 of the Supreme Court Act. Those provisions do not provide for an appeal against an acquittal of a criminal charge.

1.4 For this reason, the notice of appeal in this instance is incompetent, irrespective of its merits and should be dismissed.

Respondents’ arguments

10. Ground 1 of the respondents’ objection is based on these propositions:

· contempt of court proceedings are criminal in nature as they involve a charge being laid against a person, described as a contemnor, and the need for the court to be satisfied of the elements of the offence beyond reasonable doubt, and a verdict being entered, and in the case of a guilty verdict, the availability of criminal sanctions, including a fine or a term of imprisonment;

· rights of appeal in criminal proceedings derive from Section 22 of the Supreme Court Act, which does not provide for an appeal against acquittal;

· the respondents were acquitted of a charge of contempt of court and there is no avenue of appeal against it;

· therefore the appeal is incompetent as the appellant has sought to invoke appellate jurisdiction of the Supreme Court that it does not have.

Appellant’s arguments

11. The appellant counters those propositions by arguing:

· not all contempt of court proceedings are criminal in nature as the courts recognise a distinction between civil contempt and criminal contempt, and a civil contempt of court will be committed when a person is guilty of deliberate disobedience of an order of the court;

· in this case the respondents were charged with a civil contempt (for disobeying the order of 19 November 2010), so the contempt proceedings were civil in nature;

· rights of appeal in civil contempt proceedings are not subject to Section 22 of the Supreme Court Act;

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