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Koim v O'Neill [2016] PGNC 23; N6198 (23 February 2016)

N6198

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

OS (JR) NO 444 OF 2014

BETWEEN

SAM KOIM, CHAIRMAN OF INVESTIGATION TASK FORCE TEAM SWEEP
Plaintiff

AND

HON. PETER O'NEILL, as PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
First Defendant

AND

THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND

HON. ANO PALA, MINISTER FOR JUSTICE & ATTORNEY-GENERAL
Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J
2015: 10th December
2016: 23rd February

CONTEMPT OF COURT – Practice & Procedure – Contempt of court – Objection to competency – Competency of motion – Motion seeking order for alleged contemnor to show cause why Registrar should not be directed to commence proceedings for punishment for contempt – Alleged breach of Court order – Order restraining discussion of proceedings in public – Sub-judice – Procedure to commence proceedings for contempt discussed – Order 14, rule 47(1)&(2).

Cases cited:
Papua New Guinea Cases
Andrew Kwimberi of Paulus M Dowa Lawyers v. Independent State of Papua New Guinea (1998) SC545
Gaman Holdings Pty Ltd v. Labu Holdings Pty Ltd (2000) N2016
Ian Augerea v. Augustine Koroma (2013) N5434
Ian Augerea v. Peter Charles Yama (2013) N5476
The State v. Jackson Naepe: CR No. 493 of 2014 (Unnumbered & Unreported Judgment of 24th September 2015)
Luchya Mussa Tikuye v. Patrick Haines (2011) N4434
Tom Kulunga v. Geoffrey Vaki (2014) SC1389

Overseas Cases
Cappan v. Joss (NSWCA, 06th June 1994)
Killen v. Lane [1983] 1 NSWLR 171
Maddocks v. Brown and Anor (No. 3) [2002] NSWSC 111
Registrar of the Court of Appeal v. Maniam [No. 1] (1991) 25 NSWLR 459
Valder v. State of New South Wales (No. 3) [2013] NSWSC 997

Counsel:

Mr. G. M. Egan with Mr. M. Nale & Mr. M. Wiai, for Plaintiff
Mr. M. M. Varitimos QC, for First Defendant
Mr. D. Kipa, for Second Defendant
Mr. I. R. Molloy, for Third & Fourth Defendants

RULING ON COMPETENCY OF MOTION
23rd February, 2016

1. MAKAIL, J: The First Defendant the Prime Minister ("PM") and the Second Defendant the National Executive Council ("NEC") filed a motion to have the Plaintiff Mr. Sam Koim show cause why the Court should not direct the Registrar to apply or commence proceedings against him for punishment for contempt of Court and further, why he should not be referred to the PNG Law Society or Lawyers Statutory Committee for disciplinary actions.
Secondly, they filed separate summonses to have the Chief Editor of the National Newspaper Mr. Pama Anio and lawyer Mr. William Frizzell of Warner Shand Lawyers produce, amongst other things, documents relating to the placement of an advertisement at page 34 of the National newspaper on 18th November 2015. Mr. Koim has filed a motion objecting to the competency of the PM and NEC's motion and summonses.

Brief Facts

2. I have given consideration to the evidence of Ms. Tiffany Twivey in her affidavit filed on 18th November 2015 and evidence of Ms. Elizabeth Potter in her affidavit filed on 18th November 2015 and affidavit in response of Mr. Koim filed on 07th December 2015.

3. It is unnecessary for the resolution of the present application (objection) to detail the allegations made by the PM and the NEC against Mr. Koim that are said by the PM and the NEC to amount to contempt of the order of this Court. In brief, from evidence in these affidavits, the undisputed facts are, in these proceedings, Mr. Koim seeks judicial review of the NEC's decision to disband the Task Force Team Sweep. On 14th October 2014 Gavara-Nanu J granted an interim order. Paragraph 3 of the order states:

"The Plaintiff is restrained from discussing the current proceedings in public including with the media (whether print, electronic, social or otherwise)."

4. An article was published in the National Newspaper under the name of Mr. Koim dated 18th November 2015. Amongst other things, it lists names, status and results of cases investigated by the Task Force Team Sweep. The same information was published on electronic media such as Twitter account and Face Book account and received response or comments from members of the public.

Competency of Motion for Contempt

5. In relation to the contempt, the Prime Minister and NEC's motion cites Order 12, rule 1, Order 16, rules 8 & 13(13) of the National Court Rules and inherent jurisdiction of the Court as the jurisdictional basis of the application. As stated at [1] above, they seek to have the Court invoke the procedure under Order 14, rule 47 of the National Court Rules to deal with Mr. Koim for contempt. The Third and Fourth Defendants support the motion. Mr. Koim objects on the ground that this is not the correct procedure for the Court to invoke in order to exercise jurisdiction. The objection gives rise to the issue of correct procedure to commence proceedings for punishment for contempt of Court.

Plaintiff's Submissions

6. It is submitted for Mr. Koim that the Prime Minister and NEC's motion is incompetent because Order 14, rule 47(1) does not permit them to report a suspected contempt to the Court and for the suspected contemnor to show because why he should not be cited for contempt. The proposition is misconceived because in Killen v. Lane [1983] 1 NSWLR 171, the New South Wales Supreme Court held that the proposed procedure is applicable to criminal contempt and different considerations apply. This is a civil contempt. What the PM and the NEC are doing is asking the Court to direct the Registrar to charge Mr. Koim for contempt. The proposition is untenable because rule 47(1) does not provide for this procedure and is an interference with the discretion of the Court. In effect, what the PM and the NEC are doing is seeking to compel the Court to direct the Registrar to cite Mr. Koim for contempt. This amounts to an abuse of process of the Court.

7. It is further submitted that by rule 47(1) it is the Court on its own motion or initiative, may direct the Registrar to apply by motion for, or commence proceedings for, punishment for contempt. The exercise of power under rule 47(1) is at the Court's own motion or initiative. However, rule 47(2) preserves the right of any person other than the Registrar to apply by motion for, or commence proceedings for, punishment for contempt. This procedure is open to the PM and NEC to utilise.

Defendants' Submissions

8. In response, it is submitted for the PM and NEC that the motion is competent because it is intended to bring to the notice of the Court that a suspected contempt may have been committed by Mr. Koim. Once the Court is informed, it is left to it to determine whether Mr. Koim should show cause why the Court should not direct the Registrar to commence proceedings for contempt against him. If the Court is satisfied that a prima facie case of contravention of the Court order is established, then it should direct the Registrar to commence proceedings for contempt against Mr. Koim.

9. Amongst others, the case of The State v. Jackson Naepe: CR No. 493 of 2014 (Unnumbered & Unreported Judgment of 24th September 2015) is cited by the Prime Minister and NEC to support the submission that the procedure as outlined in the motion is neither unprecedented nor an abuse of process but one that is proper as it has been invoked by the Court in the past, like in that case. Reliance was also placed on Ian Augerea v. Peter Charles Yama (2013) N5476, Ian Augerea v. Augustine Koroma (2013) N5434 and Tom Kulunga v. Geoffrey Vaki (2014) SC1389 as cases which adopted this procedure.

10. It is further submitted that this procedure has been invoked in other jurisdictions as well. In Australia, the New South Wales Court of Appeal did not disapprove of this procedure when it dismissed an appeal against the decision of the Supreme Court for applying this procedure. This was in the case of Registrar of the Court of Appeal v. Maniam [No. 1] (1991) 25 NSWLR 459.

11. The primary reason for the PM and the NEC filing the motion is that the alleged contempt relates to matters of which not only is the PM a party but also extends further to sub judice contempt issues of which the PM is not a party but which should be jealously guarded by the Court.

Procedure for Commencing Proceedings for Contempt

12. Under the National Court Rules, there are two types of procedures to deal with contempt of Court. One is a summary procedure under Order 14, rules 38 to 40. This procedure is used to deal with contempt in the face or hearing of the Court. The second is under Order 14, rules 41 to 47 where the contempt is "in connexion with proceedings in the Court". For further discussion, see Andrew Kwimberi of Paulus M Dowa Lawyers v. Independent State of Papua New Guinea (1998) SC545, per Injia J (as he then was).

13. This is a case where there is a suspected breach of a Court order. The PM and the NEC allege that Mr. Koim may have breached a Court order restraining Mr. Koim from discussing issues that a pending trial. They have made extensive submissions to demonstrate that the alleged breach of the Court order by Mr. Koim is very serious because Mr. Koim is a lawyer and is expected to comply with the order. He is not above the law. However, putting the merits of their claim to one side as it is not before me at this stage, the point to emphasise is that there is a Court order in existence. The question really is; how is the breach of the Court order brought to the notice of the Court? Is it by the procedure proposed by the Defendants or is it by some other procedure?

14. The pertinent rule is Order 14, rule 47. It states:

"47. Motion or proceedings by Registrar. (55/11)

(1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the court or of any other court, the Court may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.

(2) Sub-rule (1) does not affect the right that any person other than the Registrar may have to apply by motion for, or to commence proceedings for, punishment of contempt."

15. From my reading of this rule, it does not state that a party may apply to the Court to have a person suspected of being in contempt to show because why the Court should not direct the Registrar to commence proceedings for contempt against him. However, I will further consider the submissions of the parties to ascertain the correct position.

16. First, I refer to the case of The State v. Jackson Naepe: CR No. 493 of 2014 (Unnumbered & Unreported Judgment of 24th September 2015) which was relied on by the PM and the NEC. This case does not assist them because it is distinguishable. While that was a case where the Court adopted the procedure proposed by the PM and the NEC, the alleged contempt arose from conduct of a member of the Police Force in interfering with the administration of justice. That conduct was interfering with witnesses who were going to testify in a murder trial of the accused Jackson Naepe. In this case there is a Court order restraining Mr. Koim from discussing issues that are pending trial of which the PM and the NEC allege Mr. Koim has breached.

17. Secondly, the cases of Ian Augerea v. Peter Charles Yama (supra) and Ian Augerea v. Augustine Koroma (supra) are also distinguishable. In those cases the contemptuous conduct arose from an election petition. A fight broke out between the supporters of the Petitioner and the winning candidate outside the Court House while Court was in session. The Court was informed about the fight by counsel representing the Petitioner. After the completion of the election petition, the Court summoned the contemnors to attend Court. They attended and the Court informed them of the allegations against them and that the Court was directing the Registrar, under Order 14, rule 47(1) of the National Court Rules to commence contempt proceedings against them. The charges were served on the contemnors, they were given time to engage a lawyer and a trial was conducted.

18. In this case the allegation is a breach of a Court order restraining Mr. Koim from discussing the current proceedings in public. It was not a fight as in those two cases or interference with witnesses as in the case of The State v. Jackson Naepe (supra). In those cases the Court was not aware of the fight or the interference with witnesses until it was informed by counsel representing the parties in those proceedings. In this case the alleged contempt arises from a breach of a Court order.

19. Interestingly, in The State v. Jackson Naepe (supra) before the Court directed the Registrar to commence contempt proceedings against the alleged contemnor, it received evidence by affidavits from counsel and witnesses while in the other two cases, I note the Court did not. In the latter cases, the Court summoned the alleged contemnors to attend Court which they did, informed them of the allegations against them and that it was directing the Registrar to commence contempt proceedings against them. It then directed the Registrar to commence contempt proceedings which the Registrar did. It then heard the allegation and in the end result, found the contemnors guilty of contempt.

20. The third case is, Tom Kulunga v. Geoffrey Vaki (supra). In that case the presiding judge (Chief Justice) directed the Registrar to commence proceedings for contempt against three lawyers for interfering with the administration of justice after they had signed a consent order to settle the matter while the matter was reserved for decision by the Chief Justice. The contempt proceedings were referred to and heard by the full Court of the Supreme Court. Again, I note that, that was a case where the Chief Justice did not ask the alleged contemnors to give evidence to show because why he should not direct the Registrar to commence contempt proceedings against them.

21. In my view except for The State v. Jackson Naepe (supra), the cases which have been referred to, the Court did not apply the procedure proposed by the PM and the NEC. On the contrary, the Court applied the procedure which Mr. Koim is advocating in this case. As for The State v. Jackson Naepe (supra) the Court applied the procedure proposed by the PM and the NEC. However, the difference between that case and this case is this. That was a criminal contempt case because the alleged contempt arose from a criminal proceeding. Thus, that case does not assist the Defendants.

22. Similarly, the case of Maniam (supra) does not assist the defence because it is distinguishable. That case was decided based on a statute, District Court Act 1973 of the State of New South Wales. That Act sets out two different procedures for dealing with contempt of Court under section 199. First is the summary procedure similar to the summary procedure under our Order 14, rule 38 of National Court Rules. The other is where pursuant to sections 199 and 203, the District Court on its own view, may refer the matter to the Supreme Court for determination. In the latter case, the Supreme Court held that "for that power to be exercised, it must first be alleged or appear to the Court that a person is guilty of contempt of Court, then the judge must ordinarily afford to the person in question the opportunity of showing why, in the exercise of s. 203, the judge should not refer the matter to the Supreme Court for determination."

23. Section 203 gives the District Court discretion to refer the matter to the Supreme Court for determination. It should be noted here that the referral of a matter by the District Court is made to the Supreme Court. Once the referral is made, it is for the Supreme Court to determine the matter. Our Order 14, rule 47(1) does not refer to a Court higher than the National Court by which the referral is made. So contrary to the submission of the PM and the NEC that, that case is relevant, it is not. This is because our Order 14, rule 47(1) gives power to the National Court to direct the Registrar to apply by motion for, or to commence proceedings for, contempt and it is the same Court that determines the matter - alleged contempt. Thus, that case does not assist the Defendants.

24. Finally, even the case of Luchya Mussa Tikuye v. Patrick Haines (2011) N4434 which I decided in 2011 does not assist the Defendants. That was a case where the alleged contemnors were summoned before the Court to show cause why they should not be punished for contempt of Court. There was no involvement of the Registrar. The Court went straight into dealing with the allegation of breach of a Court order. There was a formal hearing of the charge. The Court received evidence from the alleged contemnors and in the end result, was not satisfied that the allegation was made out and dismissed it.

25. Returning to the Kwimberi case, the Supreme Court clearly distinguished two types of procedures. A further exposition of these procedures was given by Injia J (as he then was) in Gaman Holdings Pty Ltd v. Labu Holdings Pty Ltd (2000) N2016. His Honour observed that Order 14, rules 42(1) – 45 inclusive are expressed in mandatory terms by the use of the word "shall". Rule 42(1) provides for a party to a proceeding to file a Notice of Motion or Originating Summons for punishment for contempt of Court in relation to contempt committed in connection with proceedings in the Court. Where a Notice of Motion is filed, rule 43 requires a "Statement of Charge" to be subscribed on the Notice of Motion or to be filed separately. Rule 44 requires affidavits to be filed in support of "the charge". Rule 45 requires personal service on the alleged contemnors of the Notice of Motion (filed under rule 42(1)), the statement of charge (filed under rule 43) and affidavits (filed under rule 44).

26. Since his Honour confirmed in the Gaman case that rules of procedure for contempt in this jurisdiction under Order 14 originated from the New South Wales Supreme Court Rules, it is safe to see how the New South Wales Supreme Court treats the procedure for contempt of Court.

27. In Valder v. State of New South Wales (No. 3) [2013] NSWSC 997 a notice of motion was filed by the Plaintiff together with statement of charge, seeking punishment for an alleged contempt of Court said to have been constituted by non-compliance with two subpoenas. The Court emphasised the need for strict compliance with procedure for contempt of Court in the following terms:

"For the sake of completeness I will also add that even if all that had been demonstrated was conduct that was inconsistent with orders of the Local Court, then the only means by which this Court could deal with a contempt arising from a non-compliance with a Local Court's orders is via the mechanism found in Pt 55 r 11(1) of the Supreme Court Rules 1970. This is, in effect, an administrative power enabling the Court of its own motion to require the commencement of proceedings for contempt (see Killen v. Lane [1983] 1 NSWLR 171). That power is not one that enables a party to either commence proceedings in this Court in respect of a contempt of the Local Court, or to request that this Court commence such proceedings." (Emphasis added).

28. I pause here to mention that the PM and the NEC omitted to point out in their submission that our Order 14, rule 47 is in identical terms as Part 55, rule 11 of the New South Wales Supreme Court Rules, 1970. The significance of mentioning this is because as one will see shortly, apart from the cases of Killen v. Lane and Valder which I have referred to above, there are other cases which were decided based on rule 11 which is the equivalent of our Order 14, rule 47.

29. In Killen v. Lane (supra), it was held that the power of the Supreme Court (of New South Wales) to direct the Registrar to commence proceedings for criminal contempt was ministerial in nature. Moffitt P said at 177:

"The initiation by the Crown or other constituted authority of criminal proceedings generally, or the initiation of proceedings by the court or Attorney-General to punish for criminal contempt, involves different considerations to proceedings by a person for the exercise by the court of a power to make an order which will enforce private rights. A person may allege to the Crown or authority having the power to commence criminal proceedings that a criminal offence has been committed or may allege facts which constitute such an offence, but has no right to compel the Crown or such authority or, in a case of criminal contempt, the court or Attorney-General to commence proceedings or to seek a court order having this consequence.

The right of the court to act on the allegation of some person is and formerly was as now provided in r 2 and r 11(1), so that the province of any person is to do no more than inform or allege, so as to leave the commencement of proceedings entirely a matter for the court as a ministerial decision taken of its own motion. The provision in these rules is consistent with the practice which preceded the rules."

30. As was said in Killen v. Lane (supra) at 177, per Moffitt P:

"The person who alleges some conduct tending to interfere with the administration of justice in a trial may be a juror, a witness, a party, a court to police officer or some other person. His role is to inform the judge. Thereafter, it is a matter for the judge, acting on his own motion, to decide what he will do."

31. Following the Killen v. Lane decision, the NSW Supreme Court in Maddocks v. Brown and Anor (No. 3) [2002] NSWSC 111 upheld an application such as the one made by Mr. Koim in his notice of motion (objection). That was a case where the Plaintiff filed a summons, seeking amongst other things, an order to have the Court direct the Registrar to commence proceedings for punishment for contempt arising out of proceedings in the NSW Industrial Commission. In affirming the Killen v. Lane decision, Howie J referred to the case of Cappan v. Joss (NSWCA, 06th June 1994) and noted that the procedure laid down in Killen v. Lane which was based on a rule (11) equivalent to our Order 14, rule 47 "was not unfair because there was an alternative procedure available, being that a person can commence proceedings in his or her own name without the Court acting as an intermediary."

32. With respect, the cases of Killen v. Lane, Valder, Gappan v. Joss and Maddocks v. Brown were decided based on Part 55, rule 11 of the New South Wales Supreme Court Rules which is equivalent to our Order 14, rule 47 and are against the PM and the NEC. Although these cases are of persuasive value and I am not bound to follow them, I will adopt them because they were decided based on a rule that is equivalent to our Order 14, rule 47. Thus, I come to the conclusion that it is not open to this Court to apply the procedure proposed by the PM and the NEC. With regard to the reliance on the inherent jurisdiction of the Court, as a general rule the inherent jurisdiction of the Court under section 155(4) of the Constitution is utilised as a last resort – as a remedy – to make such "orders that are necessary to do justice in the circumstances of a particular case."

33. I am not satisfied that this case qualifies for an exercise of discretion pursuant to the Court's inherent jurisdiction to permit the PM and the NEC to take the course they are proposing. I come to this conclusion because the PM and the NEC have sought to invoke the jurisdiction of the Court using a procedure that is not available to them. If there is evidence of contemptuous conduct by Mr. Koim, I am of the view that the correct procedure to apply is the one Mr. Koim proposes. I come to this conclusion because as the alleged contempt is contravention of a Court order, the PM and the NEC may invoke Order 14, rule 47(2) by either applying by motion for, or commence proceedings for, punishment for contempt against Mr. Koim. In my view rule 47(2) preserves their right to bring proceedings for punishment for contempt against Mr. Koim and it is open to them to exercise it. As to the procedure to exercise that right, it is as canvassed at [25] above. They do not have to wait for the Court to do it for them: see also Maddocks v. Brown per Howie J.

Conclusion

34. The Defendants' concern that the Court must jealously guard itself against sub judice contempt is noted, but it is the process by which the Court applies that is the issue here. Thus, I have to agree with the submission made on behalf of Mr. Koim that the procedure proposed by the PM and the NEC is an abuse of process of the Court because it is tantamount to compelling the Court to direct the Registrar to cite Mr. Koim for contempt. Ultimately, it should be the Court at its own motion, to direct the Registrar to act and not any other person. The exercise of power under Order 14, rule 47 does not remove the right of a party to independently commence proceedings for punishment for contempt. I uphold the objection and dismiss the motion by the PM and the NEC as being incompetent.

Referral of Mr. Koim to PNG Law Society/Lawyers Statutory Committee

35. I am satisfied that the PM and the NEC rely on the same facts to seek a further order to have Mr. Koim show cause why he should not be referred to the PNG Law Society or the Lawyers Statutory Committee for disciplinary actions. Given this, I am of the view that the order sought is dependent on the competency of the motion for contempt. As I have found, the motion for contempt is incompetent. It follows there is no basis to grant the order sought. It is, therefore, dismissed.

Summons for Production

36. As to the summons for production issued to Mr. Anio and the other to Mr. Frizzell, I am further of the view that they are dependent on the competency of the motion for contempt. As I have found, the motion is incompetent. It follows there is no basis to maintain the summonses. The summonses are, therefore, dismissed and Mr. Anio and Mr. Frizzell are discharged from any further obligations to this Court.

Order

37. The orders are:

37.1. The objection is upheld.

37.2. The motion by the First and Second Defendants filed on 19th November 2015 is incompetent and dismissed.

37.3. The summonses issued to the Chief Editor of the National Newspaper Mr. Pama Anio and lawyer Mr. William Frizzell of Warner Shand Lawyers on 03rd and 08th December 2015 respectively, are dismissed and Mr. Anio and Mr. Frizzell are discharged from any further obligations to this Court.

37.4. The Defendants shall pay the costs of and incidental to the application, to be taxed, if not agreed.

_________________________________________________________
Jema Lawyers: Lawyers for the Plaintiff
Twivey Lawyers: Lawyers for the First and Second Defendants
N. Tame Lawyers: Lawyers for the Third and Fourth Defendants