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

Ponting v Ponting [2015] PGNC 228; N6155 (11 March 2015)

N6155

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MC NO 20 OF 2013

FABIANA JENJET PONTING
Petitioner

V

DEREK RICHARD PONTING
Respondent

Madang: Cannings J
2015: 17th, 20th February, 11th March

CONTEMPT – disobedience contempt – alleged disobedience by petitioner of court order restraining petitioner and her servants and agents from threatening, harassing, assaulting and doing any unlawful act against the respondent – three charges of contempt of court – elements of offence.

The National Court ordered that the petitioner and her servants and agents were restrained from threatening, harassing, assaulting or doing any unlawful act against the respondent and his servants and agents pending determination of the proceedings. After the order was made the petitioner was involved in three incidents in which she allegedly (1) verbally assaulted the respondent's security guard, (2) lit a fire near the respondent's flat, causing the respondent breathing difficulties and (3) allowed her friend to verbally assault the respondent at his home. The respondent filed a notice of motion seeking punishment of the petitioner on three charges of contempt. The petitioner pleaded not guilty.

Held:

(1) Proceedings for contempt are criminal in nature and where the contemnor is alleged to have committed a disobedience contempt, the court must be satisfied beyond reasonable doubt of the three elements of the offence:

• the order was clear;
• it was properly served; and
• there was a deliberate failure to comply with the court order.
  

(2) Here the first two elements were not disputed and were proven in respect of each charge.

(3) The third element required the Court to determine in respect of each charge: whether the facts alleged against the contemnor were proven, whether the proven facts showed that there had been a failure to comply with (or disobedience of) the order, and whether the failure to comply was deliberate.

(4) As to count 1, it was proven that the contemnor swore at the security guard in the terms alleged. However, that did not amount to disobedience of the order as the contemnor did not threaten, harass or assault (in a physical sense) the guard or act unlawfully. She was not guilty of count 1.

(5) As to count 2, it was proven that the contemnor lit a fire near the respondent's flat and that this caused him discomfort and annoyance. That amounted to a breach of the court order as the result of the contemnor's action was that she assaulted (caused physical harm to) the respondent. However, it was not proven that she deliberately set out to harm the respondent. She was not guilty of count 2.

(6) As to count 3, it was proven that there was a verbal altercation between the respondent and the contemnor's male friend who verbally abused the respondent. However, that did not amount to disobedience of the order as the contemnor's friend did not threaten, harass or assault (in a physical sense) the respondent or act unlawfully. She was not guilty of count 3.

(7) Accordingly the contemnor was found not guilty of contempt of court.

Cases cited

The following cases are cited in the judgment:

Derek Richard Ponting v Fabiana Jenjet Ponting (2014) N5726
Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763
Moses Vua v Francis Mavu (2008) N3294
Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447
Peter Luga v Richard Sikani and The State (2002) N2286

NOTICE OF MOTION

This is a ruling on a motion under which a party to civil proceedings was charged with three counts of contempt of court.

Counsel

A Meten, for the Petitioner
B B Wak, for the Respondent

11th March, 2015

1. CANNINGS J: The respondent, Derek Richard Ponting, has charged the petitioner, Fabiana Jenjet Ponting, with three counts of contempt of court and this is the court's ruling – the verdict – on whether the petitioner (referred to as 'the contemnor', being a person charged with contempt) is guilty.
   
2. The respondent and the petitioner are husband and wife. In 2013, the petitioner filed a petition seeking dissolution of the marriage and other orders. The petition was heard in May-June 2014. A decision was given on 15 September 2014 (Derek Richard Ponting v Fabiana Jenjet Ponting (2014) N5726). The primary relief sought (dissolution of the marriage) was refused, while the question of whether the other relief sought should be granted (custody of the children of the marriage, access rights, maintenance and settlement of property) was referred to mediation. The mediation failed and the question of whether the other relief should be granted has returned to Court and remains unresolved.
   
3. During the course of hearing the petition, on 27 June 2014, the Court made an interim order, which the respondent claims the petitioner has disobeyed. The order states:
   

1 Petitioner and her servants and agents be retrained from threatening, harassing, assaulting and doing any such unlawful act against the Respondent and his servants and agents pending the determination of the substantive matter pursuant to Section 96 of the Matrimonial Causes Act and Section 155(4) of the Constitution.

2 Petitioner is retrained from threatening, harassing, assaulting and doing any such unlawful act against the child Trudy Ponting pending the outcome of these proceedings.

3 That both parties including their servants and agents being restrained from selling, mortgaging, leasing or making any such dealing concerning any of the matrimonial property of the family pending the outcome of these proceedings pursuant to Order 14 Rule 10 of the National Court Rules.

4 The costs to be in the cause.

THE CHARGES

4. The statement of charge states:
   

You are charged that you wilfully and intentionally breached the orders of the National Court dated 27 June 2014 in that:

1. On 20 October 2014 at around 10:00 am whilst the court order is still in force you without any lawful justification or excuse verbally attacked and assaulted the servant of the Respondent one Mr Simba Kaidlo the security guard mending the front gate of the Respondent's property at Section 34, Lot 60, Machine Gun, Coronation Drive, Madang, Madang Province as well as other servants and agents by using the following words.
   

"Yu kok pekpek, Kan yu, kan yupela"

2. You on 20 October 2014 at around 5:00 pm whilst the court order is still in force without any lawful excuse or justification harassed the Respondent by making a large fire and causing a lot of smoke right in front of the Respondent's flat causing him to face breathing complication after knowing well that he has chronic emphysema and that would definitely cause him breathing problem. You refused to extinguish the fire when requested by the Respondent and you continued to cause more smoke next to the Respondent's flat until the servant and house keeper of the Respondent one Maria Kalg extinguished the fire.
   
3. You on 21 October 2014 at around 5:40 pm whilst the court order is still in force allowed your friend one Tony Smith to enter into the Respondent's property at Section 34, Lot 06, Coronation Drive, Madang, Madang Province and verbally assaulted and attacked the Respondent without any lawful justification or excuse in front of his servants and agents at his home at Section 34, Lot 06, Machine Gun, Coronation Drive, Madang, Madang Province by allowing him to use the following words:
   

"When I first met you, you were an idiot and you still are an idiot. The Lady of the house invited me here and there is nothing you can do about it".

My response was adultery is a crime in PNG. He replied:

"You are estranged, adultery does not count and we can do as we please, idiot."

ELEMENTS

5. The parties agree that proceedings for contempt are criminal in nature and that, for the contemnor to be found guilty of this sort of disobedience contempt, the court must be satisfied beyond reasonable doubt of the three elements of the offence:
   
   • (a) the order was clear;
   • (b) it was properly served; and
   • (c) there was a deliberate failure to comply.
     

(See Peter Luga v Richard Sikani and The State (2002) N2286, Newsat Ltd v Telikom PNG Ltd, ICCC and The State (2007) N3447, Moses Vua v Francis Mavu (2008) N3294, Martin Kenehe v Michael Pearson, Chairman, Teaching Service Commission (2009) N3763.)

6. Here the first two elements are not disputed and are proven in respect of each charge. The third element requires the Court to determine in respect of each charge: whether the facts alleged against the contemnor were proven, whether the proven facts showed that there had been a failure to comply with (or disobedience of) the order, whether the contemnor was the person who failed to comply and whether the failure to comply was deliberate.
   

COUNT 1: INCIDENT OF 20 OCTOBER 2014, 10.00 AM

7. I find it proven that the contemnor swore at the security guard in the terms alleged. However, that did not amount to disobedience of the order as the contemnor did not threaten, harass or assault (in a physical sense) the guard or act unlawfully. She is not guilty of count 1.
   

COUNT 2: INCIDENT OF 20 OCTOBER 2014, 5.00 PM

8. It has been proven that the contemnor lit a fire near the respondent's flat and that this caused him discomfort and annoyance. That amounted to a breach of the court order as the result of the contemnor's action was that she assaulted (caused physical harm to) the respondent. However, though she might be reasonably criticised for being careless or thoughtless, it was not proven that she deliberately set out to harm the respondent. She is not guilty of count 2.
   

COUNT 3: INCIDENT OF 21 OCTOBER 2014, 5.40 PM

9. It has been proven that there was a verbal altercation between the respondent and the contemnor's male friend who verbally abused the respondent, calling him an "idiot". However, that did not amount to disobedience of the order as the contemnor's friend did not threaten, harass or assault (in a physical sense) the respondent or act unlawfully. She is not guilty of count 3.
   

CONCLUSION

10. The contemnor is not guilty of all charges. The parties will bear their own costs.
    

ORDER

(1) The contemnor, Fabiana Jenjet Ponting, having been charged with three counts of contempt of court, by a statement of charge filed on 6 November 2014, is found not guilty of all charges.

(2) The parties shall bear their own costs of the contempt proceedings.

Verdict accordingly.
______________________________________________________________
Public Solicitor: Lawyers for the Petitioner
Kunai & Co Lawyers: Lawyers for the Respondent