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Klapat v National Executive Council [2024] PGNC 181; N10843 (14 June 2024)

N10843

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 324 OF 2013

BETWEEN:
JOSEPH KLAPAT – Secretary, Department of Community Development (on suspension)
Plaintiff/Applicant

AND:
NATIONAL EXECUTIVE COUNCIL
First Respondent/First Contemnor

AND:
THE PUBLIC SERVICES COMMISSION
Second Respondent/Second Contemnor

AND:
HON. SIR PUKA TEMU – MINISTER FOR PUBLIC SERVICE
Third Respondent/Third Contemnor

AND:
HON. LOUJAYA TONI – MINISTER FOR COMMUNITY DEVELOPMENT
Fourth Respondent/Fourth Contemnor

AND:
ANNA SOLOMON – ACTING SECRETARY, DEPARTMENT OF COMMUNITY DEVELOPMENT
Fifth Respondent//Fifth Contemnor

AND:
ANO PALA, MP, ACTING GOVERNOR GENERAL & ACTING HEAD OF STATE
Sixth Respondent/Sixth Contemnor

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Respondent/Seventh Contemnor

Waigani: Purdon-Sully J
2024: 12^th & 14^th June

PRACTICE & PROCEDURE –Ruling on competency of Motion for contempt – Motion based on orders made following contested proceedings for judicial review – Proceedings concluded and at an end –Abuse of process and dismissed

Cases Cited:
Papua New Guinea Cases

Tulapi v Gamato [2018] N7575
Tovon v Malpo [2016] N6240
Wilson v Kuburam [2016] PGSC 7; SC1489
Thomas Barry v Joel Luma (2017) SC1639
Geosite Management Ltd v Kavo [2020] PGNC 223; N8439

Legislation:

National Court Rules, Order 14 Rules 41-42; Order 14 Rule 42(2); Order 16

Counsel

C Zazeng, for the Plaintiff
R Simbil, for the Second Defendant
L Tangua, for Fourth and Fifth Defendants
R Yomilewau, for the First, Third, Sixth and Seventh Defendants

DECISION

14th June 2024

1. PURDON-SULLY J: These proceedings concern a contempt application instituted by the Plaintiff on 30 September 2014.
   
2. By Notice of Motion filed 28 March 2024 the Fourth and Fifth Defendants/Alleged Contemnors seek the dismissal of the proceedings pursuant to Order 16 Rules 8(1) and 13(13) of the National Court Rules (NCR) on the basis that the proceedings are an abuse of the process of the Court, the mode of the proceedings improper and contrary to Order 14 Rule 42(2) of the NCR.
   
3. The First, Second, Third, Sixth and Seventh Defendants support the application of the Fourth and Fifth Defendants to dismiss the proceedings for contempt.
   

CONTEXTUAL BACKGROUND

4. The relevant background facts do not appear to be in dispute.
   
5. The Plaintiff made an application for leave for judicial review on 14 June 2013.
   
6. Leave to review was granted on 18 July 2013.
   
7. The substantive Notice of Motion under Order 16 Rule 5(1) of the NCR was filed on 22 July 2013.
   
8. The substantive review application was heard by a Judge of this court on 26 February 2014 and decision reserved.
   
9. On 21 March 2014 the review application was granted in favour of the Plaintiff. It is unchallenged that the substantive matter was thus finalised and concluded on 21 March 2014.
   
10. The Plaintiff thereafter filed another proceeding (OS JR 143 of 2014) over the same subject matter seeking leave to review a subsequent decision of the First Respondent which revoked his appointment as Acting Secretary for the Department of Community Development and appointed the Fifth Respondent as Acting Secretary of the said Department.
    
11. On 10 June 2014 leave for judicial review in the subsequent proceedings (OS JR 143 of 2014) was refused.
    
12. On 30 September 2014 the Plaintiff filed the current contempt application.
    
13. After filing the matter did not progress for about eight (8) years until April 2023 when Lakakit & Associates Lawyers, for the Plaintiff, filed an appearance and took steps to bring the matter to a hearing.
    

ARGUMENTS FOR DISMISSAL

14. Counsel for the Fourth and Fifth Defendants, supported by Counsel for the other named Defendants, submits that the mode of proceedings chosen by the Plaintiff to institute the contempt application is improper in that it offends the provisions of Order 14 Rule 42(2) of the NCR in that where the proceedings for judicial review had concluded on 21 March 2014 it was necessary for the Plaintiff to commence fresh proceedings for contempt by way of originating summons.
    
15. In support of his submissions Counsel referred the Court to authoritative pronouncement in the decisions of Tulapi v Gamato [2018] N7575 (Tulapi) and Tovon v Malpo [2016] N6240 (Tovon).

ARGUMENTS AGAINST DISMISSAL

16. Counsel for the Plaintiff accepted that the judicial review proceedings were finalised on 21 March 2014, however he submits that it was open to the Plaintiff to thereafter proceed by way of Notice of Motion, a proper reading of the relevant rules not prohibiting that mode of action as the rules make no reference to proceedings that have concluded, rather “in the proceedings” which is not defined or elaborated upon further in the rules.
    
17. Further, it is submitted that the Plaintiff commenced proceedings for contempt to protect orders that the Court had made, the Notice of Motion thereafter filed not a form that related strictly to interlocutory applications, however, the Supreme Court, by way of example, allowing the commencement of an appeal by Notice of Motion.
    
18. It was further submitted that the authorities relied upon by Counsel for the Fourth and Fifth Defendants are distinguishable on their facts, Tulapi and Tovon being matters that involved proceedings concluded by way of discontinuance and consent order respectively.
    
19. Counsel for the Plaintiff referred the Court to the unreported decision of Peter Luga v Richard Sikani [2002] N2285 (Luga) for the assistance of the Court and in support of the Plaintiff’s contention that proceeding by way of motion was not improper.
    

THE ISSUE

20. The issue before the Court for determination is whether the Notice of Motion filed by the Plaintiff to institute the contempt proceedings was a proper mode of proceeding given that the substantive matter for judicial review had been finalised and concluded and there were no ongoing proceedings before the Court.
    

CONSIDERATION

21. To establish abuse of process, there must be evidence showing that the processes of the Court have been improperly used, or have been used for an improper purpose, or have been used in an improper way or that such abuse of process has resulted in the right of the other party being denied, defeated or prejudiced (Wilson v Kuburam [2016] PGSC 7; SC1489 per Gavara-Nanu J at [35]).
    
22. Order 16 Rule 8 (1) of the NCR provides:
    

8. Application for discovery, interrogatories, cross-examination etc. (UK. 53/8)

(1) Unless the Court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any Judge of the Court notwithstanding that the application for judicial review has been made and is to be heard by another Judge.

23. Order 16 Rule 13 (13) of the NCR provides:
    

13. Other matters

(1) Motions

All interlocutory applications shall be made by Notice of Motion. The practice and procedure shall be those prescribed by the National Court Rules from time to time.

(2) Summary disposal

1. Any application for judicial review may be determined summarily for failing

to comply with directions or orders issued under the Order 16 of the National Court

Rules or under these Practice Directions or on any other competency grounds.

b. The Court may summarily determine a matter:

     (a) on application by a party; or

     (b) on the Court’s own initiative; or

     (c) upon referral by the Registrar in accordance with the procedure set out

in (3) below.

c. Where the Registrar refers a matter for summary determination, the following procedure shall apply:

     i. A notice letter in the form in Schedule C is issued by the Registrar which gives notice to the Applicant of his intention to refer the matter to the judge for summary determination on the grounds stated in the letter. The letter also gives the Applicant thirty (30) days to respond and fixes a return date and time for the matter to come before the judge. A copy of the same letter is sent to the respondent. In appropriate cases, the notice letter may be published in the media.

     ii. If the Registrar receives a response, either in writing or verbal, he shall place on the file the response or note of the verbal response and advise the Applicant to appear in Court on the date and time fixed.

     iii. Upon expiry of 30 days, the Registrar shall forward the file to the judge together with any response received.

     iv. The judge may determine the application summarily based on the response received or report by the Registrar together with any explanation given by the Applicant and/or the respondent in court.

     v. if the parties are unrepresented by a lawyer, the Registrar shall draft and settle the Court Order and forward sealed copies to the parties.

     vi. The Registrar shall also forward a sealed copy of the Order together with a copy of the judgment, if any, to the Clerk of the Court or tribunal which made the decision,

     vii. The file shall be closed and forwarded to Archives for storage.

24. Order 14 Rules 41-42 of the NCR prescribes the procedure for commencing proceedings for contempt of court not falling under Rules 38-40.
    
25. Rules 41-42 provide as follows:
    

Subdivision C. Motion or Proceedings for Punishment.

41. Application. (55/5)

This Subdivision does not apply to a case in which the Court proceeds under Rules 38 to 40.

42. Procedure generally. (55/6)

(1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.

(2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by originating summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, unless the Court otherwise orders.

(Emphasis added).

26. Rule 42 makes clear that there are two ways to bring a proceeding for contempt of court falling under Rules 41-42.
    
27. First, where contempt is committed in connection with proceedings in the Court, proceedings for contempt may be commenced by way of a notice of motion in that proceedings or a fresh proceedings by way of an originating summons (Rule 42(1).
    
28. Second, where contempt is committed but not in connection with proceedings in the Court, proceedings for contempt can be commenced as a fresh proceeding by way of an originating summons (Rule 42(2).
    
29. In the present case, the substantive judicial review proceeding was tried and concluded on 21 March 2014.
    
30. Order 4 Rule 4 of the NCR relevantly provides:

4. Mode of proceedings in interlocutory matters.

Proceedings may be instituted by motion, only if they relate to an interlocutory application.

31. Rule 4 is further reinforced by Rule 37 of Order 4 where it reads:
    

37. Interlocutory or other application in proceedings. (19/1)

An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion.

32. In the context of the present application before this Court, the effect of Order 4 Rule 4, is that a notice of motion cannot be employed to resurrect, restore or revive a substantive proceeding that has been concluded.
    
33. The Court does not accept the interpretation of the relevant rules as contended on behalf of the Plaintiff. The Court accepts, in their entirety, the submissions on behalf of the Fourth and Fifth Defendants that the proper mode of commencement of the Plaintiff’s contempt proceedings was by Originating Summons, not Notice of Motion.
    
34. The authorities on point support such a conclusion.
    
35. In Tulapi, the substantive action concerned the legality of the actions of the Electoral Commission to count votes for the Southern Highlands Provincial Seat well past the time fixed for the return of the 2017 General Elections. On the date of trial the Plaintiff discontinued the substantive proceedings on the ground that events had overtaken the substantive cause of action when Mr William Powi was returned as elected by the Electoral Commissioner.
    
36. After discontinuing the proceedings, the plaintiff later filed a motion for contempt of court to have the alleged contemnors punished for purportedly disobeying a court order. The alleged contemnors by motion applied to dismiss the proceedings on the basis that the notice of motion for contempt of court was an abuse of the court process as the substantive proceedings were discontinued and non-existent.
    
37. The Court accepted the arguments of the alleged contemnors and found that on discontinuance, the proceedings were effectively terminated and at an end. The proceedings were no longer alive for the motion for contempt to be sustained. Thus, the motion for contempt was dismissed for being incompetent and an abuse of process.
    
38. In dismissing the application for contempt Makail J said at [18]:

18. What is of immediate priority is whether these proceedings are still alive and having been discontinued, the motion for contempt is unable to be sustained and carried forward. It will be found to be an abuse of process and incompetent. It will be dismissed and Mr. Gamato, Mr. Kimbu, Ms. Kimbu and Mr. Powi will be discharged forthwith. Each party will bear its own costs of the motion because the issues raised by Mr. Tulapi are not trivial or vexatious. They could have been tried but for the incorrect procedure adopted by him.

39. In Tovon the substantive matter was resolved and concluded by consent of the parties. The applicants by way of a notice of motion sought to set aside the consent order on the ground that their former lawyers did not have instructions to consent to the terms of the consent order. The key issue before the Court for determination was whether the applicant’s mode of proceedings by notice of motion to set aside the consent order that resolved and finalized the substantive proceedings was proper. After considering the provisions of the NCR pertaining to mode of proceedings in interlocutory matters and laws from other common-law jurisdictions on interlocutory applications the Court concluded that the mode of proceedings used by the applicants, namely notice of motion, was improper.
    
40. The primary rationale for the decision was that the proceedings, having been concluded by way of consent orders, had reached and end. There were no current or existing proceedings upon which the applicant’s notice of motion could be filed and proceeded upon.
    
41. It is helpful to set out in full the Court’s consideration of this question where Kandakasi J (as he then was) said at [10] – [20]^[1]:

Whether a notice of motion is the correct mode to seek a set aside of a consent order that resolves and finalizes a proceeding?

10. Having dealt with the preliminary issue, let me now turn to the questions before the Court starting with the first question first. The question asks if a notice of motion is a correct process or mode to use to seek a set aside of a consent order that finalizes a proceeding. My answer is a simple no. A notice of motion cannot activate a matter concluded either by a consent order or by judgment and or order of the Court. The reason for this is simple.
    
11. Firstly, O. 4 r. 4 of the Rules provides for motions in this terms:
    

"4. Mode of proceedings in interlocutory matters.

Proceedings may be instituted by motion, only if they relate to an interlocutory application."

12. Rule 37 of the same Order reiterates this position in these terms:
    

"37. Interlocutory or other application in proceedings. (19/1)

An interlocutory or other application, in or for the purpose of or in relation to proceedings commenced or to be commenced by writ of summons or by originating summons, shall be made by motion."

13. The word interlocutory comes from the word interloqui which is to say "speaking between". According to L.B. Curzon's A Dictionary of Law the term means "Not final, (ie, during the course of an action) as in an interlocutory (interim) injunction. Similarly, an internet based legal dictionary defines the word in terms of:
    

"Provisional; interim; temporary; not final; that which intervenes between the beginning and the end of a lawsuit or proceeding to either decide a particular point of matter that is not the final issue of the entire controversy or prevent irreparable harm during the pendency of the lawsuit."

14. The Australian Commonwealth Corporations Act 2001, makes the position much more clearer by providing a definition for the phrase "interlocutory application to mean an application that:
    

(a) is made during the course of a proceeding; and

(b) is for an order that is incidental to the principal object of that proceeding, including, for example:

(i) an order about the conduct of the proceeding; or

(ii) an order assisting a party to that proceeding to present their case in that proceeding; or

(iii) an order protecting or otherwise dealing with property that is the subject matter of that proceeding;

but not including an order making a final determination of existing rights or liabilities."

15. The above sources put beyond any argument that, an "interlocutory application" is an application that can be made during the currency of a proceeding to deal with any interlocutory matter prior to a final determination of the issues presented in the case and hence a resolution of the proceedings. In other words, an interlocutory application can be made prior to the termination or conclusion of a proceeding. It follows therefore that no motion can be filed once a proceeding has been concluded. This is understandable as an aggrieved party has recourse by way of appeals or reviews as the case might be. Order 12 r. 8 (4) strengthens this position by precluding from the reach of the National Court's power to set aside orders made even in the absence of a party where the order determines an in issue between the parties or in the proceeding or the proceedings are dismissed. The provision reads:
    

"(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief."

(Emphasis supplied).

16. The position is further strengthened by the position the Supreme Court has taken of late. Through the Supreme Court, the law and practice in PNG in my view has correctly developed to the current position, where appeals from a trial court lies to an appellate court like the Supreme Court as of right, if the decision appealed from finally determines the proceedings or an issue between the parties.
    
17. In the present case, the Consent orders of June 2014, which are the subject of the Applicants' application, finally resolved these proceedings. In other words, the consent orders concluded or terminated the proceedings. Hence, there is no current proceeding upon which the Applicants can file and proceed on a motion. Order 4, r. 4 and r. 37 permits a notice of motion to commence only interlocutory proceedings in the course of pending proceedings The correct mode is either an appeal or a review or fresh proceeding claiming fraud or misrepresentation as against the consent order which finally resolved this matter and those who facilitated it. Seeking to reactivate a concluded proceeding by way of a motion is clearly unauthorized and amounts to an abuse of the process of the Court, which attracts an immediate penalty of dismissal for the protection of the Court's due processes and procedures.
    
18. The second and other reason for my answering the question under consideration in the negative is this. Public policy requires finality in litigation. This principle says, subject only to one's right of appeal and review where that is available or going by the slip rule principle, there must be finality in litigation once a final decision has been arrived at or a matter before the court gets concluded. The decision of the Supreme Court in Richard Dennis Wallbank and Jeanette Minifie v. The Independent State of Papua New Guinea, stated this principle in terms of:
    

"...the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a Court has good reason to consider that in its earlier judgment it has proceeded on a misapprehension as to the facts or the law. As this Court is a final Court of Appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be, an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court, nor is it to be exercised simply because a party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and a misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases."

19. As might be apparent from the Supreme Court's decision, there must be finality in litigation, subject to a rehearing in cases where for good reason an earlier decision was wrongly arrived at by reason of a misapprehension of the facts or the law. Where the error is in a decision of a final appellate or review court, correction is through the application of the slip rule principle. Where the error is at a lower trial level it is usually by appeal or review in accordance with their respective governing rules and principles and any statutory provision on point.

20. In this instance, the consent orders concluded the proceedings. Hence, there is no current or existing proceedings upon which the Applicants' motion could be filed and proceeded upon. A question that necessarily arises then is this. What is the correct mode to revisit an order (by consent or by order of the Court) that concludes a proceeding? That question is the subject of the second issue.

[Emphasis at [15] added]

42. The reasoning expressed in Tovon was endorsed by the Supreme Court in Barry v Luma (2017) SC1639 as being sound law and practice. The Supreme Court (Kirriwom, Yagi & Ipang JJ) said at [19]:
    

A notice of motion is only an interlocutory process. It cannot be used to commence or re-commence a substantive proceeding. It can only be used, as its name suggests, whilst the substantive proceeding is current. It is intended to be used within and not without a current proceeding. Where the proceeding is brought to a finality by way of a dismissal order the currency or life of the proceedings is at end and cannot be brought back to life or resurrected, as it were, by an interlocutory process. This is made clear by virtue of Rule 4 of Order 4.

43. The principles enunciated in the decision in Tovon have been followed in subsequent decisions of the National Court (see Geosite Management Ltd v Kavo [2020] PGNC 223; N8439).
    
44. Against these authorities, and the principles outlined in them, learned Counsel for the Plaintiff argues that the notice of motion is not incompetent. His particular arguments to that end cannot be sustained for a number of reasons.
    
45. Firstly, as earlier outlined, a proper consideration of the terms of Order 14 Rule 42(2) makes clear that there can only be two ways to bring a proceeding for contempt falling under Rules 41 to 42.
    
46. Secondly, Order 10 of the Supreme Court Rules, which deals with appeals from orders made under Orders 16 and 17 of the NCR, is not relevant to the present consideration which is one dealing with National Court proceedings for contempt by way of notice of motion.
    
47. Thirdly, with respect to the decision of Luga (supra), the contempt proceedings in that case arose in judicial review proceedings pursuant to Order 16 of NCR. On 22 April 2002, the plaintiff was successful on substantive judicial review and granted the relief sought in the application. The defendants failed to comply with the orders made. Thirteen (13) months later the plaintiff/applicant brought contempt proceedings by way of notice of motion pursuant to Order 14 of the NCR. While in a considered decision, the learned Judge hearing the application extensively reviewed the law relating to contempt, the issue of the mode of proceedings for contempt proceedings following the making of a final order did not appear to be raised before him and thus considered. While noting that the orders of 22 April 2022 were not interim or interlocutory orders rather final orders, the learned Judge did so only in the context of addressing the evidence and the defendants’ failure to appeal to the Supreme Court if they were aggrieved by the decision.
    
48. Since the handing down of Luga in 2002, the issue of the correct mode of proceedings to be adopted following the making of a final order has been considered, including at appellate level, the relevant principles, which bind me, now settled law. For this reason, in my respectful view, on the issue to be determined before me, the decision in Luga does not advance matters.
    
49. Finally, and relevantly, the distinction Counsel for the Plaintiff seeks to make with respect to the manner in which proceedings are concluded, is, respectfully, flawed. It is a distinction without a meaningful difference. In the current context, whether the proceedings concluded by way of consent order, discontinuance, judicial determination following a contested hearing, or some other means, matters not. The result is the same. The proceedings come to an end and, as a consequence, there is no proceeding that can support a notice of motion filed thereafter.
    
50. In the present case the proceedings were non-existent from 21 March 2014. The Notice of Motion for contempt before the Court was filed six (6) months later, on 30 September 2014. At that time there were no current or existing proceedings on which the motion could rest. The correct mode of proceeding was for the Plaintiff to issue fresh proceedings through an Originating Summons as provided for under Order 14 Rule 42 (2) of the NCR.
    
51. That failure rendered the Plaintiff’s Notice of Motion filed on 30 September 2014 incompetent and an abuse of process.
    

ORDERS

52. In the result the Court makes the following orders:
    
    1. The Fourth & Fifth Defendants/Alleged Contemnors application filed on 28 March 2024 to dismiss the contempt proceedings is upheld.
       
    2. Pursuant to Order 16 Rule 8 (1) and/or Order 16 Rule 13 (13) of the National Court Rules the Plaintiff’s application for contempt of court filed on 30 September 2014 is dismissed for being incompetent and an abuse of court process,.
       
    3. The costs of the First, Second, Third, Fourth, Fifth, Sixth and Seventh Defendants of and incidental to the application for contempt be paid by the Plaintiff on a party/party basis to be taxed if not agreed.
       
    4. Time for entry of the orders be abridged to the date of settlement by the Registrar of the National Court which shall take place forthwith.

________________________________________________________________
Lakakit & Associates: Lawyers for the Plaintiff
Public Service Commission: Lawyers for the Second Defendant
Tangua Lawyers: Lawyers for Fourth and Fifth Defendants
Solicitor General: Lawyers for First, Third, Sixth and Seventh Defendants

^[1] Footnotes removed