Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Piari v Samai [2014] PGNC 303; N5886 (15 September 2014)

N5886

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 1491 OF 2013

BETWEEN:

NATHAN PIARI
Plaintiff

AND:

MASO SAMAI
First Defendant

AND:

NATIONAL HOUSING CORPORATION
Second Defendant

AND:

RAGA KAVANA –Registrar of Titles, Department of Lands & PhysicalPlanning
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Kariko, J
2014: 10th & 15th September

Cases cited:

Kaiya Dick v Peter Lok (2007) N3205
The Right Honourable Sir Julius Chan v The Ombudsman Commission of Papua New Guinea (1999) SC607

Counsel:

Mr S Soi, for the applicant
Mr J Poponawa, for the first contemnor
Mr P Othas, for the second contemnor

RULING

15th September, 2014

1. KARIKO, J: This is an application by the plaintiff Nathan Piari pursuant to Order 14 Rules 38 and 42 of the National Court Rules to have the contemnors Maso Samai and Sam Bonner found guilty of contempt of court and punished appropriately.
   
2. It is relevant to note that the substantive proceeding concerns a dispute regarding title to a property described as Section 2 Allotment 7 Hohola National Capital District contained in State Lease Volume 9 Folio 2209 (the Property). Mr Piari who claims he was in occupation of the Property since December 2003 challenges the title deed held by the first defendant Mr Samai alleging it was obtained through fraud. Mr Bonner acts as legal counsel for Mr Samai in that proceeding.
   

Background

3. I now set out a brief background giving rise to the charges for contempt. The plaintiff and the contemnors have filed a number of affidavits from which the following appear to be the main relevant events leading up to the present application. These events are largely confirmed by the Statement of Agreed and Disputed Facts and Legal Issues signed by the parties to the contempt proceeding:
   
   • (1) 18th December 2013 - Mr Piari filed his writ of summons. At the same time he filed an urgent ex parte application pursuant to Order 4 Rule 49(5) of the National Court Rules for orders, amongst others, to restrain Mr Samai and his employees' servants and agents from evicting him from the Property (the Application).
     
   • (2) 20th December 2013 - the Application was heard ex parte and the Court granted the interim orders sought (the Interim Orders) and made the matter returnable on 12th February 2014 after service of documents.
     
   • (3) 12th February 2014 - the matter was by consent further adjourned to 7th March 2014 and the Interim Orders were extended "until further orders".
     
   • (4) 7th March 2014 - the parties did not appear so the matter was again adjourned to 21st March 2014 for inter partes hearing of the Application. The Court also ordered that if the plaintiff failed to prosecute the Application on the return date, it would stand dismissed.
     
   • (5) 21st March 2014 - the plaintiff failed to appear and the Court ordered the dismissal of the Application for want of prosecution.
     
   • (6) 21st June 2014 - on instructions from the contemnors, the police evicted the plaintiff and his family from the Property.
     
   • (7) 24th June 2014 - the plaintiff filed the application for the contemnors to be found guilty of contempt.
     

The charges &the pleas

4. In brief, the Statement of Charge against each contemnor alleges that he breached the Interim Orders by instructing the police to carry out the eviction of the plaintiff from the Property on 21st June 2014.
   
5. The contemnors have each denied the charge.
   

Issues

6. In my view, the pertinent issues for my determination are:
   
   • (1) Was the Application still pending hearing on 21st March 2014?
     
   • (2) If so, did the order dismissing the Application discharge the interim orders?
     
   • (3) If not, did the instructions of the contemnors in instructing the police to carry out the eviction constitute contempt?
     

The plaintiff's submissions

7. The plaintiff presented two main arguments.
   
8. First, he submitted that the Application was heard and determined on 20th December 2014 when the ex parte interim orders were issued. The Application was accordingly functus officio and the only way it could be disturbed was by way of an application to have it varied or set aside pursuant to Order 12 Rule 8 of the National Court Rules or by way of an appeal to the Supreme Court, and Mr Samai did not take up any of these options.
   
9. Secondly, the plaintiff argued that if the Application was to have been heard inter partes that hearing occurred on 12th February 2014 when both he and Mr Samai appeared in court through counsel and consented to adjourning the matter and extending the interim orders "until further order". That being the case, plaintiff then submitted that the Application was no longer pending on 21st March 2014 for it to be dismissed for want of prosecution.
   

Findings

10. I consider the plaintiff's arguments as totally misconceived.
    
11. As to the first argument, it is noted that the Application was heard on 20th December 2013 as an urgent ex parte application pursuant to Order 4 Rule 49(5) of the National Court Rules. This Rule specifically provides for the procedure in dealing with such applications. Rule 49(5)(1) deals with urgent applications without filing an originating process or notice of motion, while relevant to the present matter is Rule 49(5)(2) which reads:
    

"5. Urgent ex parte applications.

(1) ...............

(2) Urgent ex parte applications in other cases.

(a) A lawyer or a party wishing to make an urgent ex parte application, must contact the Registrar in writing, explaining the reasons for the urgency and why the requirements for service of the Motion is sought to be dispensed with.

(b) The Registrar, after being satisfied with the explanation given, will fix a time and date for the hearing of the Motion, in consultation with the Motions Judge.

(c) The application will not be set down for hearing unless the following documents are filed:-

· Originating Process;

· Notice of Motion;

· Supporting Affidavit/s;

· Where appropriate, an Undertaking as to Damages;

· Draft Order.

(d) The applicant must, in the Notice of Motion, first seek an order dispensing with the requirement for service of the motion. In the supporting affidavit, the deponent must demonstrate the urgency of the matter and the reasons why the requirement for service of the Motion is necessary, such as difficulty with locating the defendant in order for service to be effected.

(e) Upon hearing the application, the Judge may make orders including:

i. An order dispensing with requirements of service;

ii. An interim order which provides some solution, until the return date;

Iii. Service of the Order, the Originating Process, Motion, Supporting Affidavit, Undertaking as to Damages (where appropriate) and other documents filed in the proceedings, on or by a specified date.

iv. Giving "liberty to apply";

v. Giving a specific return date, when the interim orders become returnable before the Motions Judge.

vi. Affidavit of service of the documents referred to in above.

(f) A party shall not and the judge shall not make any order in terms of the substantive relief sought in the originating process."

(My underlining above)

12. Where an urgent application is heard ex parte under this Rule and interim orders are issued, orders must be made for service of the court documents on the other parties, and a return date is given for the application to be heard inter partes. Her Honour Davani, J stressed this requirement in Kaiya Dick v Peter Lok (2007) N3205 stating that:
    

" .. all interim orders obtained ex parte must always have a return date for hearing inter-parties. Courts must not make orders on ex parte applications which will continue until the substantive hearing".

13. This Court dealt with the Application on 20th December 2013 as required under Order 4 Rule 49(5) (2). The Court was certainly not functus officio after it ordered the Interim Orders as those orders form an interlocutory decision and as Sheehan, J and Jalina, J in their joint judgement pointed out in The Right Honourable Sir Julius Chan v The Ombudsman Commission of Papua New Guinea (1999) SC607:
    

"Plainly a Court in making interlocutory decisions is not functus officio i.e. unable to reconsider an order afresh. Rulings so made, are open, upon application pursuant to the rules of that Court to vacate or vary them."

14. This Court is able to revisit or review the Interim Orders at the inter partes hearing which is part of the procedure under Order 4 Rule 49(5) (2) for dealing with ex parte urgent applications. The inter partes hearing would of course allow the other parties including Mr Samai the opportunity to oppose the continuation of the Interim Orders, so there was no need for Mr Samai to invoke Order 12 Rule 8 or the right of appeal to the Supreme Court.
    
15. As to the second argument, clearly there was no hearing of the Application on 12th February 2014. It is true that both Mr Piari and Mr Samai were represented by counsel in court that day and counsel did agree to adjourn the matters and extend the Interim Orders but in no way could that be regarded as a hearing of the Application. A hearing would require the parties to present full submissions on the appropriateness of the Interim Orders continuing, and for the court to make a determination on the merits based on the facts and the law, and that simply did not happen on 12th February 2014. The inter partes hearing of the Application remained until the dismissal of the Application on 7th March 2014.
    
16. The interim orders stemmed from the Application and upon dismissal of the Application, the interim orders were automatically discharged.
    
17. When the contemnors instructed the eviction of the plaintiff from the Property on 21st June 2014 therefore, the Interim Orders (including the restraining order against eviction) were no longer in force.
    

Conclusion

18. It is my conclusion that the contemnors did not breach any court order. Accordingly, I find the contemnors not guilty of contempt as charged, and order that the plaintiff pay the contemnors' costs of and incidental to this application, to be taxed if not agreed.

_________________________________________________________

Soi & Associates Lawyers: Lawyer for the Applicant
Jopo Lawyers: Lawyer for the First Contemnor
Paul Othas Lawyers: Lawyer for the Second Contemnor