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Michael v Glengme [2008] PGNC 114; N3429 (24 July 2008)

N3429

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 707 OF 2007

MATHEW MICHAEL,
ON BEHALF OF HIMSELF AND 147 OTHER TEACHERS
Plaintiff

AND

JOHN GLENGME,
PROVINCIAL EDUCATION ADVISER
First Defendant

ISAAC GLADWIN,
PROVINCIAL ADMINISTRATION OFFICER,
DIVISION OF EDUCATION
Second Defendant

THE PROVINCIAL ADMINISTRATOR,
WEST NEW BRITAIN
Third Defendant

Kimbe: Cannings J
2008: 21, 22 April, 24 July

VERDICT

CONTEMPT – failure to comply with court orders – whether person ordered to do things complied completely with court order – whether substantial compliance with an order is a good defence to a contempt charge based on disobedience of a court order.

The National Court made orders requiring officers of a provincial administration to expedite payments of long outstanding leave entitlements to teachers in the public education system of the province. The teachers claimed that the officers failed to do all things required within the time allowed by the Court orders and filed proceedings against them, charging them with contempt of court. A trial was held to determine whether they are guilty of contempt. This is the judgment on verdict.

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 and it was properly served on the contemnors.

(3) The first contemnor complied with the part of the order that related to him and was found not guilty.

(4) The second contemnor’s duty to comply with the order was contingent on another officer (the Provincial Administrator) doing something, which was not done. The second contemnor could not comply with the order and therefore he was not guilty of contempt.

(5) However, it having appeared that another officer, viz the Provincial Administrator, was the person against whom the contempt proceedings should have been pursued, that officer is summoned to appear before the Court to notify the Court of the steps he has taken to comply with the Court’s orders.

Cases cited

The following cases are cited in the judgment:
Newsat Ltd v Telikom PNG Ltd, ICCC and The State, WS No 1350 of 2006, 07.05.07
Ome Ome Forests Ltd v Ray Cheong (2002) N2289
Peter Luga v Richard Sikani and The State (2002) N2286
Richard Sikani v The State and Peter Luga (2003) SC807
Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533
The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303

Abbreviations

The following abbreviations appear in the judgment:
Bros – Brothers
CJ – Chief Justice
DCJ – Deputy Chief Justice
DOF – Department of Finance
ICCC – Independent Consumer and Competition Commission
J – Justice
K – Kina
Ltd – Limited
N – National Court judgment
NDOE – National Department of Education
No – number
O/S – outstanding
OS – originating summons
PMV – Passenger Motor Vehicle
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
Pty – Proprietary
SC – Supreme Court judgment
v – versus
WNB – West New Britain
WS – writ of summons

NOTICE OF MOTION

This is a ruling on a motion for contempt of court.

Counsel
P Kaluwin, for the plaintiff
G Linge, for the 1st and 2nd defendants

24 July, 2008

1. CANNINGS J: This is a ruling on whether two officers of the West New Britain Provincial Administration are guilty of contempt for disobeying an order of the National Court.

2. I made the order on 24 August 2007 in proceedings commenced by the plaintiff, Mathew Michael, on behalf of himself and 147 other teachers employed in the public education system of WNB Province. The teachers have had a long-running dispute with the Provincial Administration over non-payment of their recreation leave fare entitlements from 2002 to 2006.

3. The teachers argue that the two officers, John Glengme, Provincial Education Adviser, and Isaac Gladwin, Provincial Administration Officer, Division of Education, failed to do all things required within the time allowed by the Court orders, and are in contempt of court. The teachers say that they have proven the three elements of contempt:

• the order was clear;
• they served the order on the contemnors (those charged with contempt); and
• the contemnors deliberately failed to comply with it.
  

4. The defences offered by Mr Glengme and Mr Gladwin are that, though the order was clear and it was served on them, they have been doing their best to comply with the orders.

5. Contempt of court is a criminal matter and the plaintiff must prove the existence of the three elements beyond reasonable doubt. If one element is not proven, the contemnors will be not guilty. If all elements are proven against either contemnor, he will be guilty and I will hear the parties on the question of punishment. (Ome Ome Forests Ltd v Ray Cheong (2002) N2289; Peter Luga v Richard Sikani and The State (2002) N2286; Richard Sikani v The State and Peter Luga (2003) SC807; Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533; The State v Foxy Kia Tala, Re Detective Constable Corney Winjan [1995] PNGLR 303; Newsat Ltd v Telikom PNG Ltd, ICCC and The State, WS No 1350 of 2006, 07.05.07.)

THE ORDER OF 24 AUGUST 2007

6. I had made interim orders in proceedings known as OS No 907 of 2006, in December 2006, aimed at getting the parties to clearly state their respective positions on what was or was not owed to the teachers. Negotiations were proceeding throughout the first half of 2007, in light of the interim orders, but the teachers were concerned that progress was too slow. Many teachers throughout the Province still had not been paid their full leave fare entitlements over a number of years, so the matter was brought to trial on 23 August and I made the following orders on 24 August 2007:

(1) That the Provincial Education Adviser shall within 14 days compile a schedule of payment of outstanding leave entitlement amounts from 2000 to 2006 owing to teachers of West New Britain in consultation with the principal Plaintiff Mathew Michael.

(2) The Provincial Administrator shall within 7 days after compilation of the outstanding leave entitlements due to teachers, instruct the West New Britain Provincial Treasury Office to commence payment of such amounts owing to particular teachers.

(3) That the Provincial Administration Officer for Education Division of West New Britain Provincial Administration and the Defendants shall pay within 21 days outstanding leave entitlements from 2000 to 2006. That such payments shall be made in bank cheques to the recipients as per the payment schedule and current leave entitlements be made through road, sea and air travel transport companies and miscellaneous charges orders, whichever first apply.

7. The effect of the order was to put the following timetable in place:

HAS THE ORDER BEEN COMPLIED WITH?

8. To determine this issue I need to make some findings of fact as to what has happened since August 2007. In making the findings I have considered the oral testimony of the principal plaintiff, Mr Michael, and the two contemnors, Mr Glengme and Mr Gladwin, and 11 exhibits.

The schedule

9. I am satisfied that Mr Glengme, in consultation with Mr Michael, compiled a schedule of payment of outstanding leave entitlements on or about 7 September 2007. This was admitted into evidence as exhibit B. It is a 33-page document and it covers the years 2002 to 2006. (For some reason, the parties seem to have agreed not to include 2000 and 2001 in the schedule.) For each of the years 2002 to 2006, there is a table showing what each teacher is claiming in outstanding entitlements for that year. By way of example, the first five entries in the 2002 table show:

10. The total amount of all claims for 2002 to 2006 is K4,239,655.68, comprised of:

11. Mr Glengme and Mr Gladwin emphasise that the teachers have already been paid some of their leave entitlements for 2002 to 2006, as follows:

12. Those payments were made out of the Provincial Treasury. But it is important to note that they were made well before the order of 24 August 2007. They are not payments made in response to the Court order.

13. Mr Glengme and Mr Gladwin say that those amounts were calculated according to what was the most direct and economical means of public transport for each teacher, which might be a ship and/or PMV fare. What the teachers are claiming, however, are airfares.

The "disputed" amount

14. Mr Michael does not dispute that the teachers have received part of their entitlements for 2002 to 2006, to the extent pointed out by Mr Glengme and Mr Gladwin. He maintains, however, that K4,239,655.68 is still outstanding and none of that amount has been paid since the orders of 24 August 2007 were made. The evidence shows that Mr Michael is correct. None of that disputed amount has been paid.

15. I am referring to it as a "disputed" amount as Mr Glengme and Mr Gladwin, and the Provincial Administration generally, appear to have taken the view that the teachers have no lawful entitlement to airfares. They have been paid their dues. They are not owed any more. Mr Linge, appearing for Mr Glengme and Mr Gladwin, submitted that that is the correct position at law due to Section 130(8) of the Teaching Service Act 1988, which states:

The cost of fares under this section shall not exceed the net amount that would necessarily be incurred by a member in travelling by the most direct route and by the most economical means of public transport.

16. Mr Linge’s submission would have required careful consideration if it had been made before the orders of 24 August 2007 were made. But it has come too late as those orders were made on the presumption that the teachers had a genuine grievance, that there were outstanding entitlements that had to be paid and that it was a matter of identifying the amount of those entitlements for each teacher and getting them paid.

17. I reiterate that I find that none of the disputed amount of K4,239,655.68 has been paid since August 2007. So I need now to state what steps, if any, have been taken to make the payments required.

What has happened since 24 August 2007?

18. The evidence reveals that on 30 October 2007 the Acting Provincial Administrator, Willie Edo, wrote to the Provincial Education Adviser:

In the light of the ongoing saga regarding teachers leave fare entitlements, you are directed to effectively settle in the first instance the cheapest mode of transport with the exception of teachers from [three named] inaccessible areas.

19. On 14 November 2007 the new Provincial Education Adviser, Ken Baur, sent out a circular to all teachers in the province saying that all teachers’ leave fares:

... will be processed on merit in terms of cheapest mode of transport [with exceptions for inaccessible areas].

20. On 21 December 2007 Mr Baur wrote to the Provincial Administrator drawing his attention to the National Court order and requesting:

Therefore given the severity and urgency of the matter could funds be released immediately to pay off these teachers’ outstanding leave fares?

21. That request drew the following response by way of a handwritten notation on Mr Baur’s letter, apparently made by Mr Edo:

All leave fares appropriations for these past years have all been paid. Further new O/S fares must be made to NDOE and DOF.

22. On 21 March 2008 Mr Baur again wrote to the Provincial Administrator, again drawing his attention to the National Court order and submitting that the issue of outstanding teachers’ leave fares be included for deliberation for the 2008 provincial supplementary budget. It is not clear whether there was any response.

23. Meanwhile in the early part of this year an investigating committee was set up by the National Department of Education to inquire into ongoing problems with payments of teachers leave fare entitlements in many provinces. It is not clear what the results of that committee’s investigation have been.

Mr Glengme’s position

24. He maintains that he did all that he could to comply with the order of 24 August 2007. He only occupied the position of Provincial Education Adviser from January to December 2007. He said that the court’s order has not been taken seriously by the Provincial Administration and excuses for inaction such as the Administration not having a Provincial Legal Adviser were being used.

Mr Gladwin’s position

25. He also maintains that he has made a genuine attempt to get the court’s order complied with, however, there has been no allocation of money to process the claims covered by the order. He met with the investigating committee from the National Department of Education but no report has been forthcoming. He says that "we are still looking for money to pay the teachers" and that he continues to ask his superiors if they can "do something about it". His position is that he cannot do anything until he is directed to do so. In his affidavit (exhibit H) he puts it this way:

I am only an implementer and make payments when I am directed to do so by my superiors.

Verdict re Mr Glengme

26. The upshot of all this is that for the first contemnor, Mr Glengme, I am satisfied that he did what he was required to do by the order of 24 August 2007: he compiled the schedule of outstanding entitlements within the time given. He does not appear to have done much in addition to what he was expressly ordered to do but he is not being charged with lack of diligence or commitment, he is being charged with contempt of court, so that cannot be held against him. He will be found not guilty.

Verdict re Mr Gladwin

27. His duty to comply with the court order – order No 3 to be precise – only arises after the Provincial Administrator has given instructions – in terms of order No 2 – to the Treasury to commence payments. The Provincial Administrator has not given those instructions (a matter on which I will comment in a moment) and therefore I accept his position as reasonable that he was unable to comply with the court’s order. He will also be found not guilty.

OTHER ISSUES

28. These contempt proceedings were only pursued against the Provincial Education Adviser and the Provincial Administration Officer for the Education Division and that is why the verdicts are confined to Mr Glengme and Mr Gladwin.

29. It seems, however, on the face of it, and without expressing any findings on the issue, that the person against whom the contempt proceedings should have been pursued, is the person who has been occupying the position of Provincial Administrator since August 2007; and I understand that that is the Acting Provincial Administrator, Mr Edo. I will therefore summon him to the Court to notify the Court of the steps he has taken to comply with the Court’s orders of 24 August 2007. I will also direct the plaintiff to appear so that the Court can be informed whether any contempt charge against Mr Edo will be pursued.

ORDERS

(1) The first defendant and contemnor, John Glengme, is adjudged not guilty of contempt of court and is acquitted accordingly.

(2) The second defendant and contemnor, Isaac Gladwin, is adjudged not guilty of contempt of court and is acquitted accordingly.

(3) The Acting Provincial Administrator of West New Britain, Mr Willy Edo, is summoned to appear before the National Court at Kimbe at 9.00 am on 14 August 2008 to notify the Court of the steps he has taken to comply with the Court’s orders of 24 August 2007.

(4) The plaintiff and his lawyers shall appear before the National Court at Kimbe at 9.00 am on 14 August 2008, to inform the Court whether any contempt charge against Mr Edo will be pursued and what further steps the plaintiff is proposing to take to pursue the cause of action in OS No 907 of 2006.

Ordered accordingly.

Public Solicitor: Lawyer for the Plaintiff
Linge & Associates: Lawyers for the First and Second Defendants