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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 338 OF 2007
BETWEEN:
STEPHEN JOHN ROSE &
JOHN CHARLES HARRISON
Plaintiffs
AND:
NEVILLE DEVETE
ACTING SOLICITOR-GENERAL
First Defendant
AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Defendant
Waigani: Sakora J
2007: 28 September
& 1 October
CONTEMPT – Contempt of Court – What constitutes - Disobedience of court order – Disobedience of Order Mandamus – Order Mandamus issued for refusing to endorse a Certificate of Judgment entered against the State – Statutory duty to endorse – No discretion in respect of duty – Duty and obligation to obey orders and directions of the courts until set aside or discharged – National Court Rules, O 14 rr 37 to 43, 45,49 & 50; O 16 rr 1 (1), 3; Claims By and Against the State Act 1996, ss 11, 13 (2), 14 (1),(2), (3), (4) & (5).
CONTEMPT – Contempt of Court - Duty of every lawyer – Duty of every officer of the State – Lawyers Act 1986, ss 2, 7, 8, Parts 111, IV & V (Admission to Practise, Practising Certificates & Professional Conduct, respectively); Admission Rules (Lawyers Oath& Affirmation); Professional Conduct Rules, ss 3 & 15; Attorney-General Act, ss 4, 5, 7, & 10 to 13; and, Public Services (Management) Act 1995, s 50.
CONTEMPT – Contempt of court – Contempt powers – Source and purpose of – Application to cite and punish for contempt - Procedural safeguards – Onus and standard of proof - Constitution, ss 37(2) & (4), 160(2), 163(2), 225, Sch.2.2, National Court Rules, O 14 rr 37- 43, 45, 49, 50; O 16 r 3.
Cases Cited:
Papua New Guinea Cases
Green & Co Pty Ltd v Green [1976] PNGLR 73.
Re Passingan Taru [1982] PNGLR 292.
The State v Mark Taua, Re Awaita [1985] PNGLR 179.
Robinson v The State [1986] PNGLR 307.
Yap v Tan [1987] PNGLR 227.
Poka v The State [1988] PNGLR 218.
Ross Bishop & Ors v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533.
Paul Metta v The State [1992] PNGLR 176.
Marko Iatinata v Denison Toiwat & Pennington Valaun [1994] PNGLR 568.
The State v Foxy Kia Tala [1995] PNGLR 303.
Pius Mark v Korali Iki (Unreported N1364 of 1995).
State v Lucas Sasorua (Unreported N1494 of 1996).
The State v Raymond Tupundu (Unreported N1536 of 1996).
Leto Pup v Yangao Mara (Unreported, National Court, 3/4/1996).
Kwimberi of Paulus M Dowa of Lawyer v The Independent State of Papua New Guinea (Unreported SC545 of 1998).
The Attorney-General & Ors v Dr Pirouz Hamadian – Rad (Unreported SC618, Sept/Oct 1999).
Peter Luga v Richard Sikani & The Independent State (Unreported N2285 of 2002).
Overseas Cases
Chuck v Cremer [1846] EngR 924; (1846) 47 ER 820.
Ex Parte Robinson, [1873] USSC 57; 86 US. 505, 510 (1873).
Helmore v Smith [1887] UKLawRpCh 70; (1886) 35 Ch D 436.
Ambard v A-G for Trinidad & Tobago [1936] AC 322.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
Hadkinson v Hadkinson [1952] All ER 567.
Attorney-General v Times Newspapers [1974] AC 273.
Putnin (as Liquidator of Maff Investments Pty Ltd (in Liquidation) v Fuller (1991) 3 WAR 546.
The following texts are referred to in the judgment:
The Law Reform Commission (Australia) Report (No. 35) On Contempt (AGPS, Canberra, 1987)
Halsbury’s Laws of England (4th ed., Vol. 9, 1974)
Constitution of the Independent State of Papua New Guinea
National Court Rules
Oxford Dictionary of Law (4th ed., 1997).
Osborn’s Concise Law Dictionary (6th ed., by John Burke).
The Law of Contempt, by Gordon Borrie & Nigel Low, Butterworths (London, 1973).
The Law of Contempt, by Anthony Arlidge & David Eady, Sweet & Maxwell (London, 1982).
The Rules of the Supreme Court ("The White Book") by Sir Jack I H Jacob.
Richie’s Supreme Court Procedure (NSW) ("The Red Book").
Counsel:
S J Rose, in Person.
J Palek & A Furigi, for the Defendants
JUDGMENT
1 October, 2007
1. SAKORA J: The Application: On Friday 28 September the court heard an application by the plaintiffs to find the first defendant guilty of contempt of court, and to punish him accordingly.
2. Mr Rose moved the court on his and Mr Harrison’s joint amended Notice of Motion filed 25 September 2007 pursuant to O 14 National Court Rule[1]. The instance of contempt relied upon for this application is in respect of an order mandamus that the plaintiffs had applied for and obtained in this court to compel the first defendant to discharge his statutory duty under s 14(2) Claims By and Against the State Act[2].
Introduction
3. The plaintiffs/applicants sued the State claiming special damages for debt due and owing, and general damages for hardships, frustration and distress, together with the usual ancillary claims for interest and costs.
4. Before instituting the proceedings by way of a writ of summons with a statement of claim indorsed on it, notice of intention to do so was duly given to the State pursuant to s 5 CBAS Act within the required time on 13 September 2006. The proceedings was registered as WS No. 1371 of 2006 upon its filing on 22 September 2006. Requirement for service of the writ on the State were duly complied with pursuant to s 7 CBAS Act.
5. The State defaulted in its filing of a Notice of Intention to Defend and a Defence as required, under the combined effects of the CBAS Act (in respect only of the State as a party) and the NCR. This default, it needs to be emphasized once again, occurred despite the fact that the State lawyers are the beneficiaries of what can properly be characterised as over-generous and over-extended time limits for such compliance under the CBAS Act, that are not available to ordinary individual and corporate litigants and their lawyers.
6. It needs to be noted and emphasized once again also, that these over-generous and over-extended provisions were included for the first time in 1996 when the former CBAS Act (Ch 30) was amended. Included also was the provision for the mandatory requirement of giving notice of an intention to make a claim against the State, in a futile attempt (as the continuing dysfunctional state of the State’s legal services demonstrate) to stem the tide of default judgments being ordered by the courts on a regular basis through the incompetence of State lawyers.
7. Thus, even after these most favourable provisions, lawyers were incapable of doing the most basic of things required of them to protect the interests of the State: file the Notice of Intention to Defend within 30 days of service of the writ, and the Defence itself 60 days later, according discriminately, in my opinion, a total of 90 days after service[3]. This obvious dereliction of a very simple duty on the part of the State lawyers makes no sense at all when it is appreciated that the State ought to have been fully aware of the claim of the plaintiffs some 12 months before the s 5 notice was ever given to the Solicitor-General, let alone the service of the writ itself.
8. That 13 September 2006 notice, in clear unambiguous six sentences, described the claim that was being contemplated, as well as the legal basis for such a claim: a Memorandum of Account for consultancy fees and associated expenses that had already been rendered to the Department of Finance the year before on 30 September 2005 pursuant to a consultancy agreement that had been entered into between the Ministry of Agriculture and the two plaintiffs.
9. The amount of AUD $4,940,125.00 claimed as special damages, together with AUD $459,000.00 for general damages had, therefore, been brought to the attention of State authorities long before the actual formal claim was made in the National Court. Material before this court amply demonstrate that the plaintiffs embarked upon formal legal proceedings after being repeatedly frustrated and given the "run-around" by State authorities and lawyers, when they reneged on a contract and the associated many unconscionable promises and undertakings.
10. This court was satisfied that the Department of Finance had reneged on an earlier undertaking to settle the plaintiffs’ account after the Ministry and the Department of Agriculture had both confirmed the account and debt for payment. The Statement of Claim, in four very detailed pages, outlined and pleaded the factual circumstances demonstrating the contractual relationship between the plaintiffs and the State, and the State’s breach and consequent legal liability, giving rise to the claim. Thus, all of these were particularised and elaborated upon in the Statement of Claim. Similarly the claim for costs and expenses incurred during the period of consultancy and subsequent to the asserted breach.
11. Following a search of the registry of this court on 4 January 2007 to confirm the default, the plaintiffs filed their Notice of Motion (amended 21 January 2007) seeking orders to enter judgment in default against the State pursuant to O 12 rr 25, 26 and 27 NCR. After a couple of adjournments, the application came before me on 12 February 2007 when I granted the orders after being satisfied that there was default on the part of the State as envisaged under the NCR.
12. The grant of the application was formally announced in open court and duly endorsed on the court file. Subsequently, on 20 February 2007 the Registrar duly issued a Certificate of Judgment, thereby formally entering the judgment for settlement or enforcement pursuant to s 13(2) CBAS Act.
13. Section 14 of CBAS Act makes provisions in respect of satisfaction of judgments against the State. Pursuant to sub-s (1), the Solicitor-General was duly served the Certificate of Judgment on 21 February 2007.
14. The Solicitor-General is then required to act on the Certificate of Judgment in the following manner:
(2) The Solicitor-General shall, within 60 days from the date of service upon him of a certificate under Section 13(2), endorse the certificate in Form 1. (my underlining)
15. It is not without significance to note that after judgment in default was ordered to be entered against it, the lawyers for the State, once again, failed to take action in such a situation to protect the interests of the State. That is to say, the avenue available under the NCR to apply to have set aside the judgment under the well-known principles of Green & Co. Pty Ltd v Green [4] was not resorted to. Nor the usual appeal procedure under the Supreme Court Act.
16. Here was a glaring instance of professional negligence, compounding the earlier one in relation to the timely filing of a notice of intention to defend and the defence itself, that generally entitles a dissatisfied client to sue his lawyer for professional negligence and claiming damages.
17. Perhaps there was never any defence at all to the plaintiffs’ claim. Under the known facts of the case, there could not have been.
The order Mandamus
18. Both the application for leave and the substantive application for judicial review under O 16 NCR were granted by this court upon being satisfied that the first defendant failed or refused to perform a public duty imposed on him by statute. He failed or refused to certify the certificate of judgment served on him as required by s 14 (2) CBAS Act. The requirement is in mandatory terms.
19. The Solicitor-General has no discretion in relation to this duty to endorse, unlike the departmental head responsible for finance matters. Section 14 (4) of CBAS Act is in the following terms:
(4) Any payment in satisfaction of judgment may in the absolute discretion of the departmental head responsible for finance matters be made by instalments provided the judgment is thereby satisfied within a reasonable time.
20. Instead of complying with the mandatory requirement of the law that the first defendant, as the second highest law officer of the nation and an officer of the court, had sworn to respect and enforce, he was offering the plaintiffs pathetic juvenile excuses like an errant schoolboy who has not done his homework.
21. Some of these were that, he wanted to consult the Attorney-General, wanted to brief or engage private counsel, and also to ascertain that he had a financial limit, none of which, of course, had and have anything to do with the mandatory discharge of a statutory duty imposed on him only by s 14(2) CBAS Act. Nowhere in this Act is there a provision obliging the Solicitor-General to do certain things such as those stated by the first defendant to the plaintiffs when they were checking up on the status of the certified judgment.
22. The Solicitor-General, in the performance and discharge of this statutory duty, has no discretion to exercise. In this respect also, he has no (and no need to consider) financial limit[5]. The only discretion in relation to the satisfaction of a judgment debt against the State is that vested in the Secretary for Finance, who necessarily has to check on the state of the funds available to determine how and when such a debt can be settled in the spirit and intent of s 14(4).
23. Furthermore, at this juncture, the Solicitor–General ought to know, as the second law officer of the nation, that he is not entitled to raise matters that, strictly speaking, he ought to have raised even before the writ was issued. By all well-established principles, he forfeited that entitlement, the last opportunity under the NCR being an application to set aside, or an appeal to the Supreme Court under the Supreme Court Act.
24. The depositions in the first defendant’s affidavit, filed in purported support of his defence to the application for order mandamus, were an embarrassing display of the usual unmeritorious and unacceptable excuses that are fed up to the courts with tedious regularity these days, in relation to not attending to duties in the proper defence of the rights and interests of the State, if any.
25. There was, in the end result, no problem with granting the order mandamus to compel the Solicitor-General to forthwith perform and discharge his mandatory statutory public duty to endorse a certified judgment of this court.
26. Sub-s (5) of s 14 [6] provides that no action for or in the nature of mandamus or contempt of court, or otherwise lies against either the Solicitor-General or the Departmental Head responsible for finance matters in respect of the satisfaction of a judgment under this Act, other than for failure to observe the requirements of Subsection (sic) (2), (3) or (4), as the case may be, or unless exceptional circumstances can be shown to the satisfaction of the court.
27. There was a failure on the part of the Solicitor-General as envisaged, and no exceptional circumstances were advanced by the first defendant and demonstrated to my satisfaction. Even if there had been an attempt to advance such an argument, it would have been a futile exercise, because there was here a history of continuing default on the part of the Solicitor-General and his lawyers, rendering, in my judgment, the delay in and failure to act on the subject certificate of judgment Wednesbury unreasonable[7].
28. In any case, as repeatedly adverted to already, the statutory duty imposed on the first defendant by the Act is mandatory, with no discretion whatsoever.
The Disobedience of order Mandamus
29. The plaintiffs’ application was moved pursuant to and in full compliance with O 14 rr 41 to 47 NCR. In support of their application, Mr Rose referred the court to a total of nine affidavits that he and Mr Harrison had sworn and filed between June and September 2007. These, in an exhaustive way, and in chronological order, depose to the history of their dealings with various State authorities in respect of their claim, and the litigation itself.
30. In his submissions, Mr Rose helpfully referred to and cited pertinent extracts from the standard texts on the law of contempt[8]. He also referred to and relied on the Supreme Court decision of Andrew Kwimberi[9]. For the first defendant, Mr Furigi referred to and relied on the affidavit of Mr Devete himself sworn on 25 September 2007. In his very brief oral submissions, counsel made no references to any texts nor case law. Apart from regurgitating Mr Devete’s tedious excuses, counsel demonstrated complete unpreparedness in an apparently hopeless task.
31. It is not without significance to note here that, the entire history of this proceedings demonstrates an embarrassing contrast between the woeful incompetence of University-educated legal professionals and bureaucrats, and the well-prepared competent performance and presentation of lay persons who were and are well-acquainted with the requirements of law and procedure, not to mention ethical conduct.
32. I note also that, before this application came before me, it had been attempted to be moved before another judge. Court records amply demonstrate that the plaintiffs had no problems with moving their application. They would appear to have attended to and complied with the requirements of law and procedure in respect of such an application. It is the first defendant and his lawyers who had problems. And problems from causes within themselves and within their control! Need I repeat here once again what these were? The court then appears to have been confused by the confusion and disinformation of the first defendant and his lawyers, by the comments this court had made in granting the judgment in default back in February 2007[10]. In the process, the judge was misled into misdirecting himself as to what exactly was before him on 22 August 2007, and as to how to proceed in and with the matter.
33. The entire dysfunctional state of the proceedings on 22 August was magnified by the fact that neither the first defendant nor his lawyers, nor indeed the presiding judge, appear to have read and acquainted themselves with my ruling of 25 July 2007. That was a ruling on the plaintiffs’ application under O 16 r 3 NCR for the grant of an order mandamus against the first defendant as a result of his refusal to endorse a duly certified judgment of this court as required[11].
34. The plaintiffs were and are not confused about all of these. But people who said they were confused, in order to confuse the issues, were the so-called professional people in possession of law degrees and admission (to practice) certificates. Their confusion appears to be in relation to simple English (the language of law schools and the courts), the law and its procedures. Confusion is not a defence known to law. The so-called confusion is in fact ignorance. Ignorance of the law and its processes and procedures.
35. And the law relevant at that application was in relation to the public law remedies of the former prerogative writs that are now sought and granted in the nature of orders certiorari, prohibition and mandamus. The order mandamus is a peremptory and positive order requiring a public authority or official, or indeed an inferior court or tribunal, to take some positive action, to discharge or perform a public duty (or exercise jurisdiction) imposed by statute. In one leading English case on the subject it was said that:
By Magna Carta the Crown is bound neither to deny justice to anybody, nor to delay anybody in obtaining justice. If, therefore, there is no other means of obtaining justice, the writ of mandamus is granted to enable justice to be done.
36. Disobedience of order mandamus is contempt of court in itself, and this applies to certiorari and prohibition as well. The applicant must show he has a clear legal right to the performance of the duty, and the order will not be made if there is an equally convenient and effective remedy within the discretion of the court.
37. In the process of discussing the law in that application, the court found it necessary to clarify the principles relating to claims for and grants of special and general damages. This had been raised in relation to O 12 rr 27 and 28 NCR, vis a vis liquidated and unliquidated damages respectively, by the first defendant to explain away his statutory duty under s 14(2) CBAS Act. True to form, having raised the issue, counsel for the first defendant was unable to cite the relevant legal principles supported by pertinent case law and rules. On the other hand, Mr Rose once again referred to and relied on pertinent extracts from Ritchie’s Supreme Court Rules (NSW), what was referred to formerly as "The Red Book"[12], as opposed to "The White Book", that equally authoritative tome by Sir Jack Jacob [13] on the English Supreme Court procedural rules and principles.
38. These are the discussions in my ruling on that application that the first defendant, his lawyers, and the presiding judge, all found it convenient not to read and become informed on.
39. For people such as the first defendant and his lawyers, ignorance of the law, its processes and procedures is an embarrassment. It is inexcusable; it is indefensible. It is pathetic. The so-called confusion prevented that court from hearing the application and considering it on its own merits. It thus avoided looking at the circumstances, firstly, of the application for and grant of the order mandamus, and, secondly, the disobedience of that order.
40. This glaringly woeful ignorance of the law, its processes and procedures, did not end there. It embarrassingly extended to this contempt proceedings. The first defendant and his lawyers have displayed here their combined lack of understanding and appreciation about proceedings such as this under O 14 NCR. Such that Mr Furigi rose confidently to confirm that his client was pleading "not guilty" but intended to explain the disobedience, in the face of irrefutable, indefensible, evidence of disobedience of an order mandamus granted by this court and duly served on him.
41. This, amongst other things, was an act of arrogance compounding and aggravating a history of blatant disobedience of orders of this court made in the proper exercise of its constitutional and statutory functions by a no lesser person than the incumbent of the second law office of the nation, let alone an officer of the court.
42. On the material filed in this court and relied on by the plaintiffs/applicants, and the records of the court, I am satisfied that the first defendant has disobeyed the order mandamus. The first defendant, despite his remarkable pleading of "not guilty" to the charge of contempt of court, does not dispute the disobedience, the failure to comply with the order. The operative period the applicants rely on is two months, from service on the first defendant of the order mandamus on 25 July to 27 September 2007.
43. Has the first defendant committed contempt of court by this failure and disobedience?
The Law: Contempt
44. Much of my discussion of the law on the subject is borrowed from an earlier judgment of mine in the case of Peter Luga v Richard Sikani and The Independent State[14]. I availed of the opportunity presented by that case to canvass the pertinent case law in this jurisdiction as well as those of great assistance in both England and Australia. Whilst the case went on appeal to the Supreme Court and my judgments on conviction and sentence were overturned on some inexplicable grounds [15] by a majority of 2-1, the law is settled.
45. Respectfully borrowing from The Law Reform Commission (Australia) Report (No. 35) on: CONTEMPT,[16]contempt of court is a doctrine of English common law which has become part of our laws,[17] according to which our courts are "empowered to inflict summary punishment on those who interfere with the administration of justice" . The report summarises the law on the subject from Halsbury’s Laws of England.[18]
46. The report lists the principal types of conduct which may constitute contempt as follows:
"contempt in the face of the court" situation;
2. Endeavouring improperly to influence participants in
proceedings;
given to a court, commonly referred to as the "disobedience contempt"; and
Justice, including –
47. Statutory provisions prohibit similar types of interference with the proceedings of tribunals and investigative commissions. Counsel ought to be familiar with some of the unsuccessful attempts in this jurisdiction to exercise contempt powers for matters purportedly covered by s 225 Constitution: provision of facilities, etc. for Constitutional offices and office-holders.
48. The Constitution vests contempt powers on the two superior courts of justice to punish offences against themselves [19] under ss 160(2) and 163(2) respectively. Similar language is employed in these provisions to describe the power:
The . . . Court is a superior court of record and accordingly subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.
49. This is of course inherent power translated into statutory form under the Constitution (and ordinary legislation creating and vesting power on quasi-judicial tribunals and commissions of inquiry). The courts, therefore, have undoubted power to compel observance of their processes, and obedience of and compliance with their orders and directions. These powers are inherent in the sense that they "are necessary attributes to render the judicial function effective in the administration of justice". Expressed in another way, the power to punish for contempt is inherent in the judiciary.
50. The power enables the courts to perform their functions without interference, to control courtroom behaviour, to enforce orders and compel obedience. The doctrine as applicable in the United States demonstrating the inextricable relationship between the courts and their contempt power was notably stated in Ex Parte Robinson, [1873] USSC 57; 86 US. 505, 510 (1873) in the following terms:
The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and the enforcement of the judgments, orders, and writs of the courts, and consequently to the administration of justice. The moment the courts of the U.S were called into existence and invested with jurisdiction over any subject, they became possessed of this power.
51. Although persons found guilty of contempt are generally punished by the courts in much the same way as criminal offenders, the law of contempt has a number of special features that distinguish it from the ordinary criminal law. These can be conveniently summarised hereunder as follows:
(3) . . .
(4) - (22)
a sanction may be imposed not by way of punishment, but in order to compel compliance with the relevant Court order. As permissible pursuant to s 37 (2) Constitution,[21] an open-ended gaol sentence, terminating only when the order has been obeyed, is sometimes imposed for this purpose.
52. In this case, the Court is concerned with the fourth category of contempt: the failure (or refusal) to obey or comply with (or give effect to) an order of the court properly seized of jurisdiction to make. This is the "disobedience contempt". Thus, invoking the court’s inherent power in respect of this involves seeking the imposition of sanctions for the purpose of enforcing orders made by, and undertaking given to, courts, and for the punishment of disobedience of such orders or failure to discharge the undertaking.
53. It should be mentioned that proceedings for the "disobedience contempt" most commonly arise out of failure to comply with an order (s) which is (are) of such a nature that it (they) can only be obeyed (or, indeed, disobeyed) by the person (s) to whom it is (they are) directed.
54. Further to what has already been said here about mens rea for liability, it can be emphasised here that the mental element necessary for this category of contempt is simply that the disobeying party intended the conduct constituting the disobedience . And that conduct in the context of the facts of this case is the intentional and deliberated refusal to obey or give effect to the terms of the order mandamus. There is, therefore, no need or obligation on the applicant to demonstrate that the disobeying party intended to disobey (or refuse) or to have made no reasonable attempt to obey.
55. The very fact that an order that is mandated specifically to be obeyed by him remains without compliance constitutes, in my opinion, disobedience as required. A res ipsa loquitur situation, I would suggest, analogous to the publication contempt where strict liability would apply.
The Law: What constitutes contempt (4th category)?
56. The Supreme Court case of The Attorney-General & Ors v Dr Pirouz Hamadian-Rad [22] defined, inter alia, what constitutes contempt in circumstances of acts done or comments made or published in relation to particular proceedings in a court of law. The court referred to and relied on the classic definition provided by Lord Diplock in his oft-cited decision of Attorney-General v Times Newspapers,[23] which I respectfully adopt and reproduce hereunder[24]:
Contempt of court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus form many forms.
To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also – and this more immediately – the particular interest of the parties to the case.
57. Further assistance and reliance was obtained (by the Supreme Court) from the Privy Council case of Ambard v Attorney-General for Trinidad & Tobago [25] where their Lordships said this[26]:
It will be sufficient to apply the law as laid down in Reg v Gray [1900] UKLawRpKQB 63; [1900] 2 QB 36 by Lord Russell of Killowen CJ: ‘Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke characterized as ‘scandalising a Court or a judge’.
58. Those authoritative decisions of course reflect the classic common law definition of contempt of court as "an act or omission calculated to interfere with the due administration of justice"[27].
59. It should be mentioned here that the common law on this subject was somewhat enhanced by codification under the Contempt of Court Act 1981 (UK), making it a statutory contempt to publish to the public, by any means, any communication that creates a substantial risk that the course of justice in particular legal proceedings will be seriously impeded or prejudiced, if the proceedings are active.[28] This definition also states that such publications constitute strict liability contempt, in which the intention to interfere with the course of justice is not required.
60. Another definition that includes acts or omissions in respect of court orders is that provided by Osborn’s Concise Law Dictionary [29] which reads: (1) Failure to comply with an Order of a superior court, or an act of resistance or insult to the court, or judge, (2) Conduct likely to prejudice the fair trial of an accused person, punishable by fine or committal to prison. The first definition would be the pertinent one for the present case.
61. The case before me involves circumstances envisaged by the fourth category of contempt (supra), disobedience of orders of court. In relation to what constitutes contempt in this sense, I refer to the Western Australian case of Putnin (as Liquidator of Maff Investments P/l (in Liquidation) v Fuller[30], and respectfully adopt the principles that were enunciated there. The respondent sought an order to commit the applicant to prison for contempt of Court for failing to comply with an order for discovery within the time period ordered. The applicant swore an affidavit giving the reasons why there was a failure to comply with the order. It was held that "casual, accidental or unintentional disobedience to an order will not justify an order for commitment, for which wilful disobedience must be shown"[31].
62. I would respectfully add here that the need to demonstrate wilful disobedience would be relevant and crucial when considering the explanation offered for the failure to obey the order when determining whether or not the contemnor ought to be committed to prison. Not, I would suggest, when considering whether or not there was in fact contempt as defined. There is a world of difference between these two stages of the judicial process.
63. It will be appreciated that most reported cases of contempt of court so far in this jurisdiction have involved judges faced with behaviour, or rather misbehaviour, by lawyers in connection with proceedings in court. These have included a lawyer not turning up in court (absent from) on set date to represent an accused person at a criminal trial[32]. Other cases of lawyers being absent from court are: Poka v The State[33], The State v Raymond Tupundu [34]., and The State v Lucas Sasoruo[35]. The case of Robinson v The State,[36] involved the using of critical language about a judge in the vicinity of the court but not in the presence or hearing of the judge himself.
64. Contempt proceedings have also involved failure of witnesses to be present in court to give evidence as required: The State v Foxy Kia Tala [37], and, Re Passingan Taru. [38] There have not been many cases involving "disobedience contempt" in this jurisdiction, though anecdotal evidence would suggest that increasingly in recent times, there is an unhealthy trend towards disobediently and blatantly disrespectful disregard for court orders and processes. In the case of Yap v Tan[39], Hinchliffe J had to consider a failure to deliver up certain property of a company to an appointed receiver and manager pursuant to directions in a court order. After canvassing the pertinent case law, the learned judge stated that:
When an order is made by a court of competent jurisdiction it is the obligation of every person against, or in respect of, whom the order is made, to obey it unless and until that order is discharged; the obligation extends to cases where the person affected by the order believes it to be irregular or even void.[40]
65. His Honour was of course adopting and applying the principles as enunciated in the English cases of Hadkinson v Hadkinson[41], and, Chuck v Cremer [42]. And I respectfully do likewise in respect of the case before me. It is, therefore, worth (and instructive) repeating here what Romer LJ said in the former case (at 569):
It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.
66. His Lordship then proceeded to cite with approval [43] what Lord Cottenham LC said in the latter case, which I, once again, respectfully reproduce hereunder:
A party, who knows of an order, whether null or void, regular or irregular, cannot be permitted to disobey it . . . It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or void – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.
67. The learned Lord Chancellor’s cited pronouncement is, with respect, most pertinent to the factual circumstances before me now. And I find great comfort and reassurance in adopting and applying these to the facts of this case.
68. The Supreme Court in Ross Bishop and Ors. v Bishop Bros. Engineering Pty Ltd[44] listed the principles which should guide determination of proceedings for contempt of court arising out of disobedience of court orders. And these are reproduced hereunder [45] as follows:
69. In another "disobedience contempt" case, Pius Mark v Korali Iki,[46] Akuram AJ (as he then was), considered disobedience of a District Court order to vacate premises and to remove or destroy any improvements made on the subject land. His Honour found contempt proven after declaring that the National Court had unlimited jurisdiction and inherent power to watch over the proceedings of inferior courts, and to prevent persons from interfering with the course of justice in such courts.
70. Finally, three other cases in this jurisdiction should be mentioned, if only briefly to complete the picture, as it were, on the various aspects of the law here. The first of these is the case of Paul Metta v The State [47] which involved the imprisonment of a Government transport officer in a province after the circuiting judge imprisoned him for contempt arising out of his failure to provide a motor vehicle (as required and requested) at the airport for the judge’s use upon arrival and for duration of the court circuit. The Supreme Court granted the officer’s appeal, holding that such failure is not per se contempt of court.
71. There is the case of Marko Iatinata v Denison Toiwat & Pennington Valaun[48], which involved imprisonment by the District Court of a judgment debtor who had made various attempts to part-pay the debt. The last case is that of Leto Pup v Yangao Mara[49], which concerned the failure of a clerk of the District Court not entering the Notice of Appeal, the Recognizance on Appeal, and giving copies of these to the Registrar of the National Court and the parties concerned. It was held that this failure may constitute a civil contempt of the fair administration of justice and may be punishable as a criminal contempt.
The Law: Duty of every lawyer
72. Under the Lawyers Admission Rule 1990, every newly-admitted lawyer at the admission ceremony is required to swear an oath (or make an affirmation) in the required form [50] and sign the Roll of Lawyer[51]. The oath is in the following terms:
I . . . of . . . promise and declare that I will well and truly serve the Independent State of Papua New Guinea and its people as a lawyer and will uphold the Constitution and the laws of Papua New Guinea.[52]
73. Promulgated under the Lawyers Act are also rules prescribing standards of professional conduct of lawyers. These are the Professional Conduct Rules 1989 (PCR). Section or rule 3 sets out various duties of every lawyer, and I set out the pertinent ones hereunder as follows:
It is the duty of a lawyer –
(a) not to engage in conduct (whether in pursuit of his profession or otherwise) which –
(i) is illegal., or
(ii) is dishonest., or
(iii) is unprofessional., or
(iv) is prejudicial to the administration of justice., or
(v) may otherwise bring the legal profession into disrepute., and
(b) to observe the ethics and etiquette of the legal profession., and
(c) to be competent in all his professional activities., and
(d) . . .
(e) . . .
(f) to comply with the Act and these Rules and the common law.
74. In relation to conduct of lawyers in court proceedings, s 15(or r 15) PCR is of serious and particular relevance. It is in the following terms:
15. COURT PROCEEDINGS
(1) Subject to these Rules, a lawyer shall conduct each case in such manner as he considers will be most advantageous to his client.
(2) A lawyer shall not knowingly deceive or mislead the Court.
(3) If, at any time before judgment is delivered in a civil case, a lawyer is informed by his client that the client has –
(a) committed perjury., or
(b) otherwise been guilty of fraud upon the Court, the lawyer shall not inform the Court of that fact without his client’s consent but shall not take any further part in the case unless his client authorises him to inform the Court of the perjured statement or other fraudulent conduct and he has so informed the Court.
(4) A lawyer shall –
(a) act with due courtesy to the Court before he is Appearing; and
(b) use his best endeavours to avoid unnecessary expenses and waste of the Court’s time., and
(c) when requested, inform the Court of the probable length of a case., and
(d) inform the Court of the possibility of a settlement provided that he can do so without revealing the existence or the content of "without prejudice" communication, and
(e) subject to these Rules, inform the Court of any development which effects (sic) the information already before the Court., and
(f) not delay proceedings that have been set down for trial only for the reason that he does not hold money on account of his costs., and
(g) appear in court wearing a long - sleeved clean ironed opaque white shirt or blouse with collar closed at the throat and dark trousers or rami, laplap or a skirt and business shoes and –
(i) if appearing as Counsel, properly gowned with bib (tabs) and wig., and
(ii) if appearing as instructing lawyer, a tie In the case of a male.
(5) A lawyer shall ensure that the Court is in formed of any relevant decision on a point of law or any legislative provisions of which he is aware and which he considers to be relevant, whether it be for or against his contention.
(5) - (17).
75. The foregoing rules would apply here to both Mr Devete and any lawyer representing and appearing for him.
The Law: The Office of the Solicitor-General
76. The office of the Solicitor-General is established by s 10 of the Attorney-General Act 1989. Its colonial and immediate post-Independence ancestors were the Crown Law Office and the State Solicitor’s Office respectively.
77. This legislation was enacted to implement s 156 (2) Constitution in relation to the Office of principal legal adviser to the National Executive by establishing the Office of Attorney-General to be the principal legal adviser and providing for the duties, functions and responsibilities of that Office.[53] Section 2 formally does this, and s 3 makes the Attorney-General the principal legal adviser to the National Executive Council.
78. Amongst the duties, functions and responsibilities of the Attorney-General pursuant to s 7, is the power to, in accordance with s 10 [54], appoint a lawyer[55] to be the Solicitor-General. Section 10 establishes the Office of Solicitor-General.
79. Section 13 of the Act provides for the function of the Solicitor-General. And this is:
(1) The primary function of the Solicitor-General is to appear as an advocate for the State in matters coming before the courts in Papua New Guinea.
(2) In the exercise of his function under Subsection (1), the Solicitor-General shall accept instructions only from the Attorney-General.
80. In relation to legal advice and opinion, the Attorney-General’s duties, functions and responsibilities would be confined, in my respectful opinion, to areas or matters specified under s 8 of the Act. And these have all got to do with his Constitutional role as the principal legal adviser to the National Executive Council.
The Law: Duty of every officer of the State
81. All officers of the State are required to take the Oath and affirmation of office of officers, which are in the following terms:
Oath
I, . . ., do swear that I will well and truly serve the Independent State of Papua New Guinea as an officer of the National Public Service.
So help me God!
Affirmation
I, . . ., do solemnly and sincerely promise and declare that I will well and truly serve the Independent State of Papua New Guinea as an officer of the National Public Service.
82. Disciplinary offences have been created under s 50 of the Act, to ensure that duties, responsibilities and obligations, as specified in the General Orders and Regulations[56], are discharged and complied with in the spirit of the Oaths and Affirmations the officers take.
Onus and standard of proof
83. In relation to establishing the allegation(s) of contempt of court by disobedience of (or refusal to comply with) an order or direction of a court, the rules of evidence and procedure normally applicable to criminal trials ought to be used. Because of the open-ended power to punish (or sanction) pursuant to s 37 (2) Constitution, [57] the evidentiary burden of proof lies with an applicant, the accuser: Yap v Tan.[58]
84. And the standard of proof required to discharge this onus is, as established in case law, the onerous one of proof beyond reasonable doubt: Ross Bishop & Ors v Bishop Bros. Engineering[59]. Needless to say, if at the end of the evidence the court is left with any lingering doubt as to the liability or guilt of the contemnor, the law requires that the court extend to him the benefit of that doubt.
Procedural safeguards
85. In view of the summary nature of contempt proceedings with the accompanying open-ended power to punish, the same procedural safeguards as applicable to accused in criminal trials must apply. The starting point here is of course the protection accorded by s 37 (1) Constitution.[60]
86. And these succeeding provisions operate, alongside (and subject to, in particular relation to conviction and punishment) s 37(2).[61] Of immediate pertinence are sub-ss (3) and (4), the former being expressed as:
(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.
87. The latter provision reads as follows (the applicable parts here):
(4) A person charged with an offence –
- (a) shall be presumed innocent until proven guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
- (b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
- (c) shall be given adequate time and facilities for the preparation of his defence; and
- (d) . . .
- (e) . . .
- (f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.
(5) – (22) . . .
88. To the preceding safeguards guaranteed by the Constitution must be added those safeguards largely regulated by the NCR under Order 14. The rules pertinent to the allegations of contempt of court under consideration here begin at Rule 42 and end at Rule 50. The former rule provides for the procedure generally insisting, inter alia, that an application for punishment for contempt must be made by motion on notice, as this proceeding has been. Rule 43 provides for the filing of a statement of charge, which must be personally served on the contemnor together with the notice of motion and the supporting affidavits: Rules 44 and 45, respectively.
89. Rules 49 (punishment) and 50 (discharge) provide for procedures upon finding of guilt.
The Evidence
90. There is no dispute at all that the acting Solicitor-General refused to endorse the certificate of judgment as served on him pursuant to the CBAS Act. There is a clear mandatory public duty imposed on him to do so by the statute. His refusal to perform or discharge his statutory obligation in this respect constituted disobedience of an order made and directed specifically to him as the responsible public official by a court of competent jurisdiction.
91. The acting Solicitor-General’s further refusal to comply with an order mandamus that had been made necessary to be applied for and granted upon his initial refusal and disobedience, which of itself constituted contempt of court, magnifies and aggravates an already very serious position for someone who occupies the second highest law office in the country.
92. There is no dispute that the acting Solicitor-General refused to obey and give effect to the order mandamus. This court granted the order on 25 July 2007 (duly entered 27 July 2007). A sealed original copy of the order mandamus was duly served on the first defendant on 27 July 2007, under cover of an accompanying letter from the applicants. The circumstances of the application for the order and its grant, service of the order, and, as on many previous occasions, unsuccessful attempts in late July to meet with the acting Solicitor-General to discuss the matter, are well-documented in the supporting affidavits of the applicants (supra).
93. It is not without significance to note that on 31st July 2007, on yet another trip to the office of the first defendant when he refused to see Mr Rose, the advice from his staff was: "The Solicitor General will not sign the Certificate of Judgment". This is how public officials, and no lesser person than the lawyer occupying the office of the country’s Solicitor-General (and his staff), treat members of the public, let alone a party to litigation against the State seeking justice. No common courtesies extended, let alone professional courtesies. Just another load of bad manners.
94. On 1 August 2007, the plaintiffs/applicants wrote once again to the acting Solicitor-General urging and imploring him to reconsider his refusal to endorse the Certificate of Judgment. On 3 August the first plaintiff met with the acting Solicitor-General on the same and continuing issue, wherein the latter stated: "Everything is in order, but I have been very busy". It was then that the prospect of contempt proceedings was mentioned to the Solicitor-General. The depositions in respect of the foregoing in the supporting affidavits have never been disputed or rebutted by the first defendant.
95. In this respect, it is instructive also to note what the first defendant says in his own affidavit of 25 September 2007. He was appointed to the position on an acting basis on 3 May 2007[62]. It is his deposition that:
The period between June 2007 and August 2007, was chaotic for the office of Solicitor General and Attorney General because of the National Elections.
96. This is incredible, it is juvenile. One cannot resist the temptation to ask: what has this got to do with the price of tea in China? It is a well-known and notorious fact that can properly be taken judicial notice of under the law of evidence, that the twin offices of the Solicitor-General and the Attorney-General have no direct responsibility for the Constitutional functions and duties of organizing and conducting National General Elections. Nor for the usual expected litigation involving Constitutional challenges to elections and their returns. Everybody else knows full well that the direct responsibility for this very important and onerous function rests with the Electoral Commission of Papua New Guinea. And one does not need to be a lawyer to know this. And the Electoral Commission has its own lawyers. Everybody else knows this.
97. Now, who was born yesterday? The acting Solicitor-General’s pathetic juvenile excuse is so reminiscent of a common joke about an excuse of a schoolboy who has not done his homework: "The dog ate my homework!" In any case, what great feats of physical and mental powers are needed to endorse a Certificate of Judgment?
98. The rest of the acting Solicitor-General’s depositions continue in the same embarrassingly inexplicable vain.
99. This court continues to be amazed, and with very serious concern, at what the acting Solicitor-General persists in doing or rather not doing in relation to his statutory duty under consideration here, and his duty to the court as an officer of the court in consonance with, firstly, the Lawyers Oath he took (upon swearing on the Bible) on his admission to practise as a lawyer in this jurisdiction, and, secondly, as a direct consequence, his duties and obligations under the Lawyers Act and the Professional Conduct Rules (the PCR promulgated under it).
100. Either he is so naïve that he just does not understand these things, or that he does but is deliberately uncooperative, intransigent, disobedient and defaulting, because of an incurable attitude of arrogance and recalcitrance.[63]
101. For instance, in paragraph (22) of his affidavit,[64] Mr Devete says the following:
On 21 September, 2007, I discussed the matter with the Secretary for Justice as the Attorney General was out of town and I endorsed the said certificate of judgment filed by the plaintiffs on the same day, I had to include a paragraph as per the Form 1 under the Claims By And Against The State Act.
102. The acting Solicitor-General commits perjury by falsely deposing that he had endorsed a Certificate of Judgment that had been ". . . filed by the plaintiffs on the same day . . ." [65]. It is a matter of court records, and repeatedly deposed to in the various affidavits of the two plaintiffs. The Certificate of Judgment was served on him on 21 February 2007, some seven months before his perjured affidavit.[66]
103. Another glaring instance of a false deposition is that the endorsement of the Certificate of Judgment did not take place on 21 September as he asserts, but on 24 September 2007,[67] four days before the contempt charges were heard, no doubt a spineless cowardly act in the misconceived hope of avoiding the full rigour(s) of the law.
104. The order mandamus granted on 25 July 2007 (and duly entered on 27 July) was duly served on the acting Solicitor-General as required on 27 July 2007,[68] nearly two months before the swearing of the false and perjured affidavit. On the day of the swearing of this affidavit, the first defendant had not complied with any of the court orders served on him, beginning in February 2007.
105. The acting Solicitor-General was informed by Mr Rose on 3 August 2007 that proceedings under O 14 NCR would be instituted to have him cited and punished for contempt of court, after yet another unashamedly naïve excuse was offered for not discharging his statutory duties as adverted to repeatedly already. It is instructive that that nonsense of a response should be reproduced here, and I do so hereunder:
"Every thing is in order, but I have been very busy".
106. Once again, this yet another unconscionable excuse is served up for an order (Certificate of Judgment) that had been duly served on him some seven months previously that could have been endorsed as required with his eyes shut, taking no more than a couple of seconds, and needing no great intellectual exercise.
107. Finally, to complete the picture of this disobedient, recalcitrant and intransigent, not to mention, repeatedly disrespectful and mischievous second highest law officer of the country, I advert briefly to matters that are the contents of the various annexures to his affidavit. These have to do with the various disciplinary charges that the then Attorney-General [69] found it necessary to prefer against him.
108. These charges were brought under s 50 of the Public Services (Management) Act [70], dealing with the following disciplinary offences:
109. There were a total of eight charges relating, firstly, to instructions given to him by the Attorney-General on 21 August 2007, and, secondly, divulging to the media confidential Departmental communications.
110. It would appear from these charges that the first defendant’s uncooperative, recalcitrant and intransigent attitude, accompanied by wilful disobedience and default, in respect of his official and professional duties and functions, know no bounds. His political superior apparently experienced problems with this second highest law officer of the land.
111. The then Attorney-General duly suspended Mr Devete. Apart from the information extracted from the annexures to his own affidavit, no other material is available, especially about the fate of these charges.
Conclusion
112. By his continuous intransigence and recalcitrance in this case, the acting Solicitor-General has repeatedly tried the patience of this court. His entire attitude and behaviour (or, more correctly, misbehaviour) in this case has caused the two plaintiffs continuing frustration and great inconvenience, not to mention untold expenses and health problems.[71]
113. Knowing full well that the incompetence and professional negligence of his office had resulted in a default judgment being regularly entered[72], against the State for a large sum of money, the acting Solicitor-General used all manner of bureaucratic and unashamedly unprofessional means and devices to avoid and evade his unambiguous statutory responsibility. Every legal avenue that the plaintiffs utilised, or had recourse to, at every stage of the proceedings, as they were entitled to, the second most senior law officer of the land threw up all manner of unconscionable hurdles.
114. With no legal basis or reasons to support his inaction, his disobedience of court orders, Mr Devete resorted to these underhand means, these road-blocks and hurdles with one purpose in mind: to frustrate, delay and inconvenience the plaintiffs, hoping that they would give up and go away, leaving him alone, so that he would not have to be accountable for his administrative and professional incompetence.
115. In his anxiousness to cover up his shirking of responsibility and dereliction of statutory duty, he displayed, amongst other things, arrogance and complete indifference to the importance and seriousness of court orders.
116. There really are no redeeming features in Mr Devete’s disobedience. Whilst there exist ample instances to demonstrate this, I wish to cite an extract from part of a detailed deposition in a sworn affidavit by Stephen John Rose on 2nd and filed 3 August 2007 in support of the plaintiffs’ application that went before Salika J on 20 August 2007. The entire affidavit was read into the court record without objection, and the defendants offered no answering or rebuttal evidence at the hearing. I extract and reproduce hereunder what Mr Devete said to the two plaintiffs when they met him in his office on 19 June 2007, yet again about the judgment debt:
Mr Devete: The situation is that my staff and I have reviewed your matter and we can find no grounds upon which your case properly has been defended. The bureaucrats and ministers have ostensible authority binding the State and they are the ones who created the problem. I spent one week reading the file and your claim looks genuine.[73] The staff in here were negligent in failing to file a notice of intention to defend and defence. I have only been in this job for five weeks and I am getting on their backs. I told them that we are privileged to have extra 60 days to file our defence and we should at least be capable of performing with the generous time frames allowed.
When judgment was handed down in February, the attorney general went ballistic and started throwing files.[74] I looked at every possible way to appeal against the judgment. . . . I know of no grounds upon which we could appeal. The judgment I have prepared in full review for the attorney general but my hands are tied. I can do nothing. I am only authorised to sign off on amounts under K100,000 without approval.[75]
117. What can any serious observer say to this? It embarrasses me to even read it and reproduce it here.
118. The order mandamus was clear and unambiguous. It emanated from an earlier and persistent refusal to perform a public duty imposed on the first defendant by statute in unequivocal and mandatory terms. And there is no dispute that the first defendant has disobeyed the order mandamus that he was and is obliged by law to comply with and give effect to.
119. The order mandamus was duly served on him as demonstrated by incontrovertible evidence before the court. As a lawyer, and a purportedly senior and experienced one at that, the first defendant was and is fully conversant with the term of the court orders in question.
120. I am satisfied that the two plaintiffs have complied with all requirements of the law on this matter, and have discharged their evidentiary burden of proof. Thus, I am satisfied beyond reasonable doubt that the disobedience of the order mandamus was deliberate and wilful.
121. This court has no problem, therefore, in finding Mr Neville Devete, the acting Solicitor-General, guilty of contempt of court as charged. He has been both contumelious and contumacious!
122. In the process, he has breached the terms of his Lawyers Oath, and the various rules under PCR, which breaches of course make him liable to be referred to the Lawyers Statutory Committee set up and established under the Lawyers Act 1986. Furthermore, it is of no small matter that Mr Devete has committed the criminal offence of perjury [76] by his swearing of a false affidavit.
123. I convict the acting Solicitor-General of contempt of court as charged.
124. The matter is adjourned to hear submissions on punishment.
_____________________________________________________________
S J Rose in person for the Plaintiffs.
Baniamai Lawyers: Lawyers for the Defendants
[1] Hereinafter, the NCR.
[2] Hereinafter, CBAS Act.
[3] Section 9(a)(i) CBAS Act. See O 7 rr 1- 7.
[4] [1976] PNGLR 73.
[5] No provision for such an occasion, neither in the CBAS Act nor the Public Finance (Management) Act.
[6] Satisfaction of Judgment against the State.
[7] From an explanation of the formula adopted by Lord Greene M R, in the case of the same name, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223at 230, in relation to the standard of reasonableness to be applied in considering the exercise of statutory powers.
[8] Such well-known texts as those by : Gordon Borrie & Nigel Lowe; and, Anthony Arlidge & David Eady.
[9] Unreported SC 545 of 1998. Another lawyer contempt case.
[10] On 12 February.
[11] Supra.
[12] From which our NCR is based.
[13] The former long-time senior Master of the Supreme Court and Visiting Professor at University College, London, under whom I was privileged
to study practice and procedure (1983-1984).
[14] Unreported N2285 of 1 October 2002.
[15] Except for the dissenting judgment (unnumbered), the majority has not published its decision to this day.
[16] AGPS, Canberra, 1987.
[17] The underlying law, pursuant to Sch. 2.2 . Adoption of a common law, Constitution.
[18] 4th edn, Vol. 9, 1974).
[19] Supreme and National Courts.
[20] Or the applicants as here.
[21] Supra.
[22] Unreported SC 618 of September/October 1999.
[23] [1974] AC 273
[24] At pages 307 - 308.
[25] [1936] AC 322.
[26] At pages 334 – 335.
[27] See, for eg, Bowen LJ in Helmore v Smith [1887] UKLawRpCh 70; (1886) 35 Ch D 436 at 455.
[28] See, Oxford Dictionary of Law (4th ed., 1997).
[29] 6th ed., by John Burke.
[30] (1991) 3 WAR 546.
[31] Underlining mine.
[32] Re Awaita [1985] PNGLR 179.
[33] [1988] PNGLR 218.
[34] Unreported N 1536 of 1996.
[35] Unreported N 1192 of 1996.
[36] [1986] PNGLR 307.
[37] [1995] PNGLR 303.
[38] [1982] PNGLR 292.
[39] [1987] PNGLR 227.
[40] Underlining mine.
[41] [1952] All ER 567.
[42] (1846) 47 ER 820.
[43] Ibid.
[44] [1988-89] PNGLR 533.
[45] From the headnotes.
[46] Unreported N 1364 of 8 September 1995.
[47] [1992] PNGLR 176.
[48] [1994] PNGLR 568.
[49] Unreported & unnumbered National Court decision of 3 April 1996.
[50] Form 3.
[51] Rule 4.
[52] My underlining.
[53] The Preamble to the Act. To enable this, the former Principal Legal Adviser Act had to be repealed.
[54] I would suggest that s 11 is intended here, because s 10 concerns establishment of the office, not the appointment of an incumbent.
[55] Under s 12, a lawyer of 5 years standing. This minimum requirement appears to make light of the need to appoint someone with long accumulated
professional and administrative experience, not a mere time-server, for this very important position.
[56] And the terms and conditions of employment contained in the Employment Contracts of senior officers such as Departmental Heads.
[57] Supra.
[58] Supra.
[59] Supra.
[60] Supra.
[61] Supra.
[62] Instrument of Appointment dated 2 May 2007, annexure “ND1” though he inexplicably deposes “on or about 3 May 2007”.
[63] The term “mischievous” could be added to this list.
[64] Supra.
[65] As when he falsely swore the affidavit on 21 September 2007.
[66] See, Affidavit of Service of Stephen John Rose, sworn 21 February 2007, which annexes a copy of the endorsement of receipt as required.
[67] Annexure “ND8” to his affidavit.
[68] See, Affidavit of Service of Stephen John Rose, sworn 2nd and filed 3rd August 2007.
[69] The Hon. William Duma MP.
[70] Hereinafter, the PS (M) Act.
[71] Refer to the medical certificate of Dr Graham Haina, annexed to the affidavit of John Charles Rose
[72] In full and faithful compliance of the NCR, on the part of the two plaintiffs.
[73] Underlining mine.
[74] My underlining. See earlier comments on financial limits.
[75] By 19 June 2007, there was no Attorney-General pursuant to s 4 Attorney-General Act, but an acting Attorney-General pursuant to s 5, and that was Ms Hitalai Polume-Kiele. Polling in the 2007 National General Elections
were 11 days away.
[76] Section 121 of the Criminal Code, carrying the maximum sentence of 14 years imprisonment.
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