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Bishop v Bishop Bros Engineering Pty Ltd [1988-89] PNGLR 533 (15 December 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 533 - Ross Bishop v Bishop Bros Engineering Pty Ltd�

[1988-89] PNGLR 533

SC380

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROSS BISHOP AND OTHERS

V

BISHOP BROS ENGINEERING PTY LTD AND OTHERS

Waigani

Woods Barnett Konilio JJ

27 September 1989

15 December 1989

CONTEMPT - Civil contempt - Disobedience of court order - What constitutes contempt - Order must be clear and unambiguous - Proper service - Wilful disobedience - Standard of proof beyond reasonable doubt.

CONTEMPT - Civil contempt - Disobedience of court order - Order granting access to and use of heavy equipment - Order ambiguous - Resisting physical removal of equipment not contempt.

CONTEMPT - Civil contempt - Practice and procedure - Rights of contemnor - Same constitutional rights as person charged with an offence - Constitution, s 37.

CONSTITUTIONAL LAW - Basic rights - Fundamental rights - Protection of the law - Proceedings for civil contempt - Contemnor has same constitutional rights as person charged with an offence - Constitution, s 37.

Held

(1)����� In proceedings for contempt of court for failing to obey a court order,

(a)����� the court order must be clear and unambiguous;

Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 and P A Thomas & Co v Mould [1968] 1 All ER 963, followed.

(b)����� the order must have been properly served upon the alleged contemnor so that he has knowledge of the terms of the order;

Ronson Products Ltd v Ronson Furniture Ltd [1966] 2 All ER 381 and Biba Ltd v Stratford Investments Ltd [1972] 3 All ER 1041, followed.

(c)����� failure to obey the terms of the order must be wilful; and

(d)����� the standard of proof is proof beyond reasonable doubt.

(2)����� An order in the terms �that the first; second and third plaintiffs be granted access to, possession of and use of their goods referred to in the writ of summons herein situated on the premises of the defendant�, was ambiguous, in that it did not authorise immediate removal of the plaintiffs� goods with sufficient clarity not to justify the defendant resisting any attempt to remove them physically, and a conviction for contempt of disobeying the order by resisting removal of the goods should be set aside.

(3)����� (By Barnett J) The provisions of s 37 of the Constitution dealing with the rights of persons charged with an offence (namely, to time and facilities for preparation of defence; to defend himself before the court in person or by legal representative; to examine witnesses; and that the trial shall not take place in his absence) are applicable to the offence of civil contempt, although s 37(2) expressly excludes the offence of civil contempt from the requirement that all offences must be defined by law and the penalty therefor prescribed by law.

Cases Cited

Australasian Meat Industry Employees� Union v Mudginberri Station Pty Ltd (1987) 16 IR 242.

Biba Ltd v Stratford Investments Ltd [1972] 3 WLR 902; [1973] 3 All ER 1041.

Husson v Husson [1962] 1 WLR 1434; [1962] 3 All ER 1056.

Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87; [1932] All ER Rep 176.

P A Thomas & Co v Mould [1968] 2 QB 913; [1968] 2 WLR 737; [1968] 1 All ER 963.

Pritchard v Jeva Singh [1915] HCA 55; (1915) 20 CLR 570.

Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537.

Ronson Products Ltd v Ronson Furniture Ltd [1966] 2 WLR 1157; [1966] 2 All ER 381.

Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329.

Walker v Walker [1967] 1 All ER 412.

Appeal

This was an appeal against convictions in the National Court for two separate acts of contempt of court.

Counsel

I Molloy with G Langtry, for the appellants.

R Gunson, for the respondents.

Cur adv vult

15 December 1989

WOODS J: On 17 March 1989, the National Court heard a motion for contempt of court. The Court found that the statement of charge amounted to two contempts of court on 10 and 11 March. It was civil contempt of court preventing the execution of the order of a court.

The Court, on 17 March, was satisfied that it could proceed to hear the contempt on 11 March and accordingly did so on the material before it and found the first appellant guilty of contempt of court and imposed certain penalties.

However, with respect to a contempt on 10 March, the Court felt it appropriate that the parties should be present and thereupon adjourned the hearing of that charge until 30 March. In a judgment given on 2 May, the Court found the appellants guilty of contempt of court and imposed certain penalties.

There are a number of grounds of appeal. With respect to the appeal against the judgment of 17 March which related to the contempt on 11 March, the grounds related to the refusal to grant an adjournment of the contempt proceedings, absence of evidence of the appellant having been personally served, proceeding in the appellant�s absence, making orders without giving the appellant an opportunity to be heard, and failing to satisfy himself that the written order of 10 March was clear and unambiguous.

With respect to the appeal against the judgment of 2 May which was related to the contempt on 10 March, the grounds related to insufficient evidence of contempt, failure to be satisfied that the appellant had notice of the order, error in that he had already dealt with one contempt order and therefore should have disqualified himself, error in finding there had been due service of the order, error because the original order was ambiguous and finally that the sentence was manifestly excessive.

The facts briefly are that on 9 March the respondent, W Bishop, obtained an order over certain items of machinery which machinery was apparently in premises occupied by the appellants. On 10 March, the respondent, W Bishop, proceeded to the premises to serve the order and obtain execution of the order. He served copies of the order in the office of the appellant companies and was commencing to read the order to the appellant, R Bishop, when he was physically assaulted and suffered injuries. The respondent, W Bishop, returned again to the premises on 11 March in the company of some police to try again to execute the order and was again denied access.

A motion for contempt was filed and issued on 13 March and duly served and the motion was returnable on 17 March.

The appellant, R Bishop, knew of the charge of contempt by 15 March because he swore an affidavit on that date, yet he absented himself from the court and the country for the hearing on the charge on 17 March. There is no evidence as to exactly why he absented himself from the hearing on 17 March, apart from business requirements outside the country. That is not an excuse to a serious summons for contempt. Yet sometimes it is an example of the cavalier attitude some people take to orders of the court. I am sure that any lawyer in this country would not fail but to impress on any person the seriousness of such a charge. Courts take matters of contempt very seriously especially where, as in this case, the allegation was a disobedience or disregard of an order or of the process of serving an order so flagrant that it affected not merely the parties to the action, but by its example, the administration of justice as a whole. The allegations being that there was physical assault during the service of an order and then deliberately refusing to allow execution of an order, appear to be of such wilful disobedience of the court that the court sees it as a threat to the administration of justice as a whole. In this type of situation, any distinction between civil and criminal contempt becomes somewhat blurred, as what appears to be civil contempt can incur criminal sanctions.

At the hearing on 17 March, the judge proceeded only with the charge relating to the contempt of 11 March as he felt that there was sufficient affidavit evidence from both sides to enable him to consider the charge. As I have said, the court treats contempt seriously and it is entitled to act quickly. If a contemnor decides to absent himself from the hearing of such a serious charge, he does so at his peril. In the interests of the efficient administration of justice, charges of contempt should be dealt with expeditiously. I am satisfied that there was sufficient material before the judge for him to consider the charge insofar as it related to the incident on 11 March. And no good reason was forthcoming as to why an adjournment should be granted. The deliberate absence from the court for unexplained business reasons on such a charge could actually reinforce any alleged disrespect the appellant had for the court.

I am satisfied that there was sufficient evidence before his Honour to enable him to find the charge proved. With respect to the ground of appeal relating to any ambiguity on the original order, I find it very difficult to consider this point in view of the fact that the appellant took no steps before 17 March to press that point and, in particular, that no steps were taken on 15 March, which was the return date of the original order, to challenge or iron out any differences over the order. The appellant had due notice of the contempt charge by 15 March and was defying it. The trial judge�s finding therefore seems to fall short of being satisfied beyond reasonable doubt of the essential elements of proper service.

Of course, the actions of the appellant in assaulting his brother when he did, and the way he did, would constitute a serious criminal offence. However, just because this assault took place whilst his brother was trying to serve a court order does not of itself make that assault also a contempt of court.

Therefore it would appear that the trial judge has erred in his finding of contempt on 10 March. As this finding was also against the two companies as well as the appellant personally and although the two companies may have been served properly, the fact that the appellant in his actions of assaulting his brother was acting on behalf of the two companies means the convictions against the two companies must be in error.

I therefore quash the convictions and sentences against the three appellants in relation to the contempt alleged on 10 March.

To summarise therefore, the conviction for the contempt on 11 March stands, the convictions for the contempt on 10 March are quashed and the sentences and penalties are quashed.

The matter of the punishment for the contempt on 11 March must be referred back.

Whilst the appellant has succeeded in part of this appeal, I am conscious of the clear evidence of a serious assault and I would therefore make no order as to costs.

BARNETT J: This is an appeal by two companies and their managing director and principal shareholder (Ross Bishop) against convictions for two separate acts of contempt of court arising from incidents which occurred on 10 and 11 March 1989.

The two acts of contempt involved disobedience and obstruction of an interim order made by Woods J in the National Court. The order was made ex parte on 9 March 1989 in a matter involving a dispute between two brothers, Wayne and Ross Bishop, acting for their respective groups of companies which are the parties in this action. The order was sought by Wayne Bishop and his companies so as to gain access to, and use of, some heavy equipment owned by the respondent companies, but located in the appellant�s premises under the control of Ross Bishop, pursuant to a claim of right.

The relevant parts of the order of Woods J were in the following words:

�The Court Orders:

1.������ That the first, second or third defendants or each or any of them or their servants or agents be restrained from in any way interfering with the goods of the first, second and third plaintiffs referred to in the writ of summons filed herein or the right to access; possession and use of the goods of the first, second and third plaintiffs situated at Josey Street, Lae, or otherwise in the possession of the defendants.

2.������ That the first, second and third plaintiffs be granted access to, possession of and use of their goods referred to in the writ of summons herein situated on the premises of the defendants.

3.������ That the order be served together with notice of motion and supporting affidavit by facsimile on the defendants� lawyers on or before Monday 13 March 1989 or personally.

4.������ ...

5.������ ...

6.������ ...�

The interim order of Woods J included an order for substituted service on the appellants� lawyers by facsimile transmission, but it did not waive the requirement of personal service. The lawyers were served by facsimile at 12.30 pm on 10 March but they were unable to contact and advise Ross Bishop. Meanwhile Wayne Bishop, with five or six employees, went to the premises of the appellant companies on 10 March and served a copy of the order on the secretary in the registered office. He then went to the workshop with his employees and commenced to dismantle and load up some of the machinery.

Shortly afterwards, Ross Bishop, who had been at the bank, arrived on the scene. At this stage, he had no notice of the interim order and had not heard that there had been a court hearing. Clearly angry at seeing Wayne Bishop loading the equipment, he punched him and then helped his employees to continue a more serious assault on him. At the time of the assault, Wayne Bishop was holding a photocopy of the facsimile court order and was attempting to read it out. After the assault, Wayne was thrown off the premises and was taken for medical treatment. He dropped the photocopy of the court order which was picked up and read by Ross Bishop.

Next day Wayne Bishop returned to try again to execute the court order, bringing with him a mobile crane, a driver and two policemen. Once again, it is alleged, Ross Bishop denied him access (this time with full knowledge of the court order).

On 14 March, the respondents gave notice of an action for contempt of court and filed a charge of contempt of court. This was served on Ross Bishop, again by facsimile transmission, on the same day and he immediately gave instructions to his lawyer for an affidavit in reply, which was sworn on 15 March. Ross Bishop then decided to continue with a pre-planned, paid business trip to Singapore, and consequently he did not attend the hearing of the contempt of court proceedings before Bredmeyer J on 17 March.

In fact, neither Wayne nor Ross Bishop attended the hearing on 17 March.

The appellants� lawyer (Mr Henao), who did attend, objected to the contempt proceedings being heard in the absence of Ross Bishop on the grounds that:

(a)����� The first appellant had a right to be present in view of s 37 of the Constitution and also as a matter of natural justice;

(b)����� The first appellant required the presence of Wayne Bishop for cross-examination on his affidavit (and had given one day�s prior notice of this requirement).

His Honour the trial judge read the affidavits of Wayne Bishop for the respondents and of Ross Bishop and Leslie Manickam for the appellants. He decided that the charge really alleged two separate acts of contempt. With regard to the assault on Wayne Bishop on 10 March 1989, the judge decided it was appropriate to adjourn that matter and to require the attendance of the deponents. However, he decided it was appropriate to proceed with the hearing of the second alleged contempt committed on 11 March 1989. He felt that the affidavits set the matter out quite sufficiently and proved, beyond reasonable doubt, that the appellant, Ross Bishop, committed the offence of contempt of court on 11 March. Ross Bishop, as an officer of the company, was personally liable for his actions as he had admitted being served personally with a copy of the interim order by that time. It appears from the record that, after his Honour rejected Mr Henao�s submissions for the adjournment, he then proceeded to convict the first defendant without hearing counsel�s submissions on the evidence relating to the substance of the charge.

Having found Ross Bishop guilty of contempt, his Honour refused a second application by his lawyer for an adjournment to enable Ross Bishop to be present to give the allocutus.

His Honour then heard Mr Henao�s plea in mitigation and then sentenced Ross Bishop to:

1.������ K500 fine, in default three months imprisonment and,

2.������ six months imprisonment fully suspended provided the prisoner keeps the peace and is of good behaviour for one year.

GROUNDS FOR APPEAL AGAINST CONVICTION FOR CONTEMPT COMMITTED ON 11 MARCH 1989

The grounds of appeal against the conviction regarding the 11 March incident are:

A.������ Refusal to grant an adjournment was a breach of s 37 of the Constitution;

B.������ Refusal to grant an adjournment was a denial of natural justice;

C.������ The conviction was contrary to and against the weight of evidence;

D.������ The order of 9 March was unclear and ambiguous.

A. Refusal to grant adjournment was a breach of s 37 of the Constitution

Section 37 of the Constitution sets out some fundamental rights of all persons to the protection of the law. It sets out the rights of people charged with offences and the rights of parties in civil cases. Section 37(1) makes it clear that �every person� has the right to the full protection of the law and that the section is not merely designed to protect persons in custody or charged with offences. Subsection (1) states that the subsections which follow �are intended to ensure that that right is fully available�.

Section 37(2) refers to �the offence commonly known as contempt of court� specifically; so, clearly, protection of the law is intended to extend to persons charged with contempt. No distinction is expressly made between civil and criminal contempt either in this section or elsewhere in the Constitution � ss 42(1)(b), 160(2) and 163(2).

Reading through the various subsections dealing with the rights of persons charged with an offence, all are quite applicable to a person charged with �civil contempt� (except s 37(2) which expressly excludes the offence of contempt from the requirement that all offences must be defined by law and the penalty prescribed by law). The issue here is whether they are equally applicable to a person charged with civil contempt. The subsections which are of particular relevance to this appeal are:

�(4)��� A person charged with an offence:

(a)����� ...

(b)����� ...

(c)����� shall be given adequate time and facilities for the preparation of his defence;

(d)����� ...

(e)����� shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice ...

(f)����� shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

(5)����� Except with his own consent, the trial shall not take place in his absence ... but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence ...�

The appellants in this case argue that these provisions of s 37 apply to both criminal and civil contempt and that, for the purposes of s 37 of the Constitution, civil contempt constitutes an �offence�. If that is the correct view, then the s 37 protections apply to persons charged with both civil and criminal contempt, unless expressly or clearly excluded.

Civil contempt occurs when a person disobeys, or interferes with the execution of, a court order. The charge must be brought by the other party to the dispute and cannot be initiated by the court itself. Nevertheless, it is seen as an offence against the administration of justice and the common law has evolved rules to ensure that justice is done, and seen to be done, in such cases where, to an extent, the court itself (more accurately the system of justice which it administers) is the aggrieved party. Thus there are special rules to ensure that the contemnor has been properly served with the court order and the contempt must be proved to the standard applicable in criminal cases � beyond reasonable doubt. The penalty upon conviction for civil contempt can include a fine or imprisonment. In these respects the offence of civil contempt bears most of the characteristics and consequences of a criminal offence (without the normal safeguard that it must be defined by law).

The very purpose of s 37 is to ensure that �every person has the right to the full protection of the law and ... to ensure that that right is fully available, especially to persons ... charged with offences�.

As far as persons charged with civil contempt are concerned, they are in need of the same full protection of the law as is granted by s 37 to those charged with criminal offences, as they are liable to the same serious penalties of fine and imprisonment. Section 37 expressly deprives persons charged with �the offence commonly known as contempt� of the protection that the offence must be defined, and the penalty must be prescribed, by law. In my view, however, as far as is possible, all the other s 37 rights to protection of the law are intended to be available to persons charged with all categories of contempt bearing a penal sanction. To hold that the archaic and dwindling distinctions between �criminal�, �quasi criminal� and �civil� contempt could justify withholding the full protection of the law from persons facing penal charges would be to permit an outmoded legal technicality to deprive a person of a fundamental right to protection of the law in cases where the court itself could be considered as an aggrieved party.

Giving the words �offence� and �contempt of court� in s 37 their �fair and liberal� meaning, as I am required to do by s 1 of the Constitution, I find that the protections provided by s 37 are intended to apply to �the offence commonly known as contempt� whether it is categorised as criminal, quasi-criminal or civil contempt.

That being the case, was Ross Bishop denied the rights guaranteed to him by s 37 of the Constitution at the trial of the allegations that he committed contempt of court when he denied access to the respondents on 11 March 1989?

The constitutional rights in question here fall into four categories:

(1)����� The right to be given adequate time and facilities for the preparation of his defence: s 37(4)(c).

(2)����� The right to defend himself before the court in person or by a legal representative: s 37(4)(e).

(3)����� The right to be �afforded facilities to ... obtain the attendance and carry out the examination of witnesses ...�: s 37(4)(f).

(4)����� Except with his own consent, the right that the trial shall not take place in his absence: s 37(5).

It is necessary to examine each of these rights in turn to determine whether there has been a breach.

(1) Was he �given adequate time and facilities for the preparation of his defence�?

The notice of the contempt proceedings, the statement of the charge and the affidavit in support were served upon his lawyers in Lae by facsimile transmission (in accordance with an order for substituted service) at 12.40 pm on 14 March 1989. Ross Bishop received actual personal notice shortly afterwards. He had time to consider the papers overnight and to swear an affidavit in reply on 15 March 1989. The notice of motion was returnable in Waigani on 17 March and there was time for Ross Bishop to fly to Port Moresby for the hearing had he chosen to do so. (In fact, his lawyer did just that.) Instead, he chose to continue with his business trip to Singapore and his lawyer, Mr Henao, came in his place to seek an adjournment. The time was undoubtedly short but it must be remembered that the charge and affidavit alleged that the contempt was still continuing.

The affidavit of Wayne Bishop alleged a very serious contempt of court on 10 March, a further contempt on 11 March and that the contempt was continuing � as the court order had still not been obeyed and the respondent and his employees were still being denied access to the premises and were frightened to execute the order. While such a situation is permitted to continue, the authority of the National Court is being seriously undermined in the eyes of the public. In addition, it was alleged that the respondents were being denied access to their machinery and were suffering continuing economic loss. The Court is obliged to try and resolve such a situation promptly and, in these circumstances, I find that adequate time for Ross Bishop to attend the hearing was given. The trial judge was correct in refusing an adjournment merely to allow Ross Bishop to attend.

(2) Was he permitted to defend himself before the court in person or by a legal representative?

Clearly he was so permitted but he chose not to defend in person but to be represented by his lawyer.

(3) Was he �afforded facilities to obtain the attendance and carry out the examination of witnesses�?

The sort of facilities which a party requires for this purpose includes court orders for the attendance of the required witnesses, an adjournment to enable that attendance to be arranged (if necessary) and the enforcement by the presiding judge of orderly rules for examination and cross-examination of witnesses.

Having given notice the previous day, Mr Henao applied for an adjournment to secure the presence of Wayne Bishop for cross-examination on his affidavit. This application was refused by the trial judge who explained that there were sufficient admissions in the affidavit of Ross Bishop and Leslie Manickam to establish his guilt. As Mr Molloy pointed out during this appeal, however, there are, in fact, no such admissions (express or implied) in the affidavits. This matter is considered further below.

It is true that there was just sufficient time after service to comply with the provisions of s 35 of the Evidence Act (Ch No 48) for giving two days notice that Wayne Bishop was required for cross-examination. The mere availability of this facility in the Evidence Act seems, in these circumstances, not to be compliance with the over-riding provision of s 37 of the Constitution that the defendant �shall be given adequate time and facilities for the preparation of his defence� (s 37(4)(c)) and that he �shall be afforded facilities to ... obtain the attendance and carry out the examination of witnesses ...� (s 37(4)(f)) To expect the defendant to organise himself at such short notice after substituted facsimile service on 14 March, and to then give two clear days notice that he required Wayne Bishop to be present for cross-examination on 17 March is not compliance with s 37(4)(c) and (f).

With regard to the denial of access on 11 March, the affidavit of Wayne Bishop merely asserts that �Ross Bishop again denied us access to the premises�. It does not set out the facts upon which this assertion is based. The affidavit of Ross Bishop does not admit that assertion but gives an explanation which suggests that Wayne Bishop withdrew on police advice. I believe that the learned trial judge was unwise to proceed on that evidence alone, in the absence of both the major participants in these events. I believe that he was influenced by the evidence already before him of the dramatic and disgraceful events of 10 March (which had not yet been examined in public hearing) and of allegations about continuing acts of contempt after 17 March, which had not been charged in the statement of charge. To be so influenced is natural but in this case I believe it led his Honour into error. On the 17 March return date he wisely adjourned the hearing of the 10 March �contempt by assault� charge to allow time for the parties to attend for examination. On the state of the affidavit evidence then before him, and in view of the serious nature of the charge, he should also have acceded to the application of the appellant�s lawyer and directed that Wayne Bishop attend for cross-examination. Failure to do so (and failure to grant whatever adjournment may have been necessary to arrange his attendance) effectively denied the appellant �facilities to obtain the attendance and carry out the examination of witnesses ...�.

(4) Except with his own consent the trial shall not take place in his absence

It is quite clear that even though Ross Bishop voluntarily chose not to attend the trial he was, through his legal representative, strenuously announcing his objection to the trial proceeding in his absence. On his behalf, Mr Henao sought an adjournment of two days to allow for his client�s imminent return from overseas. In the trial of any offence, the duty of a court faced with this dilemma is to adjourn the hearing to a later date as requested and, if it is deemed necessary, either issue a summons or a warrant of arrest to secure attendance. If the court proceeds in his absence, despite clear indications that this is not consented to, the provisions of s 37(5) are contravened: Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537.

In the case of Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329, the Supreme Court held that proceeding to trial when the accused, having had notice of the trial date, simply failed to turn up without giving any explanation, constituted a breach of his fundamental rights under s 37(5).

Unlike s 37(4), s 37(5) is not limited in its applicability to �a person charged with an offence�. Subsection (5), to which his Honour the trial judge was not referred, is certainly expressed in terms wide enough to include the case of a person charged with a quasi-criminal offence such as, in this case, where an application had been made to commit to imprisonment for civil contempt.

For the above reasons, I find that failure to grant an adjournment to allow the defendant to attend and defend himself in person and to secure the attendance of Wayne Bishop for cross-examination on his affidavit and to give the allocutus after conviction amounted to breaches of s 37 of the Constitution.

B. Refusal to grant adjournment was a denial of natural justice

In addition to the constitutional aspect raised by s 37, in the final analysis, the failure to grant an adjournment and proceeding to conviction and sentence in the appellant�s absence despite the objection of his lawyer, also amounts to a denial of natural justice. The effect of a denial of natural justice is to render the decision void: S D Hotop, Principles of Australian Administrative Law, 6th ed (1985) at 215. When exercising its discretion not to grant an adjournment, it must be exercised so as not to work an injustice on a party (Walker v Walker [1967] 1 All ER 412 at 414). Even though a speedy trial was justified in this case, which involved allegations of a continuing contempt and economic loss to the respondent, care should still be taken not to work an injustice if that is possible. An adjournment should normally be granted to a defendant who has not had sufficient notice of the charge (Pritchard v Jeva Singh [1915] HCA 55; (1915) 20 CLR 570) or when he has had insufficient time to prepare his case. Here it was a case of substituted service of an ex parte order in Lae, two and a half days before the return date for a hearing in Waigani. Admittedly the appellant chose to continue with his pre-planned trip to Singapore rather than dropping everything to attend the hearing. In mitigation of this, however, it must be remembered that the first return date (on 17 March) was a normal motions day when it would not normally be expected that the trial would proceed. To grant the two-day adjournment sought would not have significantly compounded the problems caused by a continuing contempt nor would it have substantially added to the respondents� economic loss (and on this aspect it should be noted that on 15 March the hearing date for the substantive issue between these parties was adjourned by consent to 31 March).

The hearing of the other aspect of the contempt charge (arising from the assault on 10 March) was adjourned by his Honour to enable Ross Bishop to attend. Although they were treated as separate contempts, the two incidents on 10 and 11 March were episodes in a continuing saga. I find that the trial judge fell into error when he refused an adjournment which would have allowed the two episodes to have been considered together in the presence of both Wayne and Ross Bishop.

C. The conviction was contrary to and against the weight of evidence

I find also that, having decided to proceed and hear the matter, his Honour was also in error when he convicted the first appellant on the strength of the affidavit evidence then before him. Neither the statement of charge nor the affidavit of Wayne Bishop specifies in what way or by what actions Ross Bishop refused the respondent entry on 11 March. The affidavit of Ross Bishop does not admit the charge nor fill in the missing factual details of the refusal of entry. On the contrary, it provides an explanation that Wayne Bishop and his men decided not to enter on the strength of advice given to them by the police. With great respect to the trial judge, I cannot agree with him that the affidavits filed on behalf of the appellant contain admissions of guilt.

D. The order of Woods J on 9 March 1989 was unclear and ambiguous

There is one final problem facing the respondent. Before a person can be convicted for the contempt of disobeying a court order, that order must be clear and unambiguous: Halsbury�s Laws of England (4th ed), vol 9, par 66; Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87; P A Thomas & Co v Mould [1968] 1 All ER 963; Miller, Contempt of Court, 2nd ed, at 423-424.

The relevant words in the Order are:

�3.����� That the first, second and third plaintiffs be granted access to, possession of and use of their goods referred to in the writ of summons herein situated on the premises of the defendants.�

The order was made on 10 March and it was made returnable on 15 March, at which date the right to possession would be argued. It involved heavy equipment which required a crane to shift. It is by no means clear that the words �access to, possession of and use of� authorised the immediate removal of the equipment. There is, I believe, sufficient ambiguity in the words to justify the appellant in resisting any attempt to remove them physically. This, in fact, was exactly the attitude he took on 11 March after he had studied the order. It is also apparently the attitude the police escort took on that occasion. In his affidavit sworn on 15 March the first defendant swore:

�At about 10 am on Saturday, 11 March 1989 I was in my office and two uniformed policemen called in. They had with them a copy of the said court order. I and the policemen discussed the matter in depth, and I expressed my view that the order was ambiguous since the ex parte order was for us to grant access to possession and use of the goods by the plaintiffs, at the same time the plaintiffs were seeking an order, which was to be heard on 15 March 1989, similar to what they have already got in the form of an ex parte order.

I also expressed the view that as the order had a return date it was surely inserted in order that we would have the opportunity to argue the matter in court.�

It is a further ground to quash the conviction for contempt of court and it applies to both the orders which are the subject of this appeal.

I am unable to accept the view that this ground concerning the ambiguity of the order of Woods J is a recent invention which was not raised before the trial judge at the hearing of 17 March. It was in evidence in the first defendant�s affidavit of 15 March. His lawyer did not raise the matter because he was given no opportunity to address on the substantive evidence of proving contempt. He only addressed on the application for an adjournment.

GROUNDS FOR APPEAL AGAINST CONVICTION FOR CONTEMPT COMMITTED ON 10 MARCH 1989

The grounds for appeal against the whole of the judgment of 2 May are set out in the amended notice of appeal dated 21 June 1989. They are follows:

�Grounds

3.������ That his Honour failed to find, or alternatively there was insufficient evidence to find that the first appellant had proper notice of the National Court Order of 9 March 1989.

4.������ That his Honour erred in finding that the second and the third defendants were guilty as there was no evidence, or alternatively there was insufficient evidence to support the conviction.

5.������ That his Honour erred in finding that the first appellant�s conduct on Friday 10 March 1989 amounted to a disobedience of the National Court Order of 9 March 1989 or alternatively there was insufficient evidence to make such a finding.

6.������ His Honour breached the rules of natural justice in not disqualifying himself from hearing the case on the basis that by reason of his involvement and adjudication in previous proceedings for contempt against the appellants his Honour could reasonably be suspected of bias.

7.������ His Honour breached rules of natural justice in that by his introductory reference to previous contempt proceedings is which he sentenced the first defendant his Honour was not acting fairly or was not seen to be acting fairly.

8.������ The respondents failed to prove beyond reasonable doubt that there had been due service of a copy of the Order of Woods J dated 9 March 1989 on any of the defendants.

9.������ His Honour erred in failing to dismiss the action on the basis that he could not be satisfied beyond reasonable doubt that there had been any acts of contempt because of the ambiguity of the Order of 9 March 1989.

10.���� His Honour erred in not dismissing the action against the second and third defendants on the basis that the respondents had failed to prove beyond reasonable doubt the acts of contempt alleged against those defendants in the Statement of Charge.

11.���� His Honour erred in failing to dismiss the contempt proceedings against the appellants by reason of the respondents failure to prove personal service of the process in those proceedings on the appellants.

6.������ That the sentence was and in the circumstances manifestly excessive. (sic)

7.������ That his Honour by reason of the matters referred to above made orders against the first, second and third defendants in breach of the rules of natural justice.�

I will deal first with the objections about the nature of the hearing of 2 May. Ground 6 claims that his Honour the trial judge should have disqualified himself as he had previously heard and condemned the first appellant of a contempt charge involving the same parties and involving the attempted execution of the same court order.

In my view, as stated above, the two matters should have been dealt with together. As they had been separated, however, I believe that it was unwise of his Honour to proceed to hear the second trial relating to the 10 March incident.

As he had already found against the appellant on 17 March (regarding the 11 March incident) he could reasonably be suspected of bias, especially as he had (wrongly, as I have found) refused to adjourn the 17 March hearing to allow time for the appellant to appear.

The appellants, however, were represented by an experienced and competent lawyer and it was open to him to object to his Honour presiding if he felt there was actual bias. I do not think that the mere risk that it could appear to the public that there was bias would be, in these circumstances, a ground for quashing the orders.

I find there is no merit in ground 7 regarding his Honour�s introductory reference to the previous contempt proceedings.

Grounds 3, 5 and 8 all deal with the question of proper service of the order of Woods J and/or whether there was wilful disobedience of it. I will consider them together.

To sustain an action for contempt of a court order there must be proof beyond reasonable doubt that it has been properly served �upon the alleged contemnor�: Halsbury�s Laws of England (4th ed), vol 9, par 66; Ronson Products Ltd v Ronson Furniture Ltd [1966] 2 All ER 381; Biba Ltd v Stratford Investments Ltd [1972] 3 All ER 1041; Husson v Husson [1962] 3 All ER 1056, and refer Miller, Contempt of Court, 2nd ed, at 422.

Mere technical service will not be sufficient as the major element of the offence is that it must be a wilful refusal to obey the order. Ross Bishop was not charged with assault or with interference with a process server. He was charged with contempt of the court order and that requires that he had knowledge of the terms of the order and that his conduct shows that he wilfully disobeyed it. When he entered the workshop, he had no knowledge of the court order or of any court hearing. Clearly he was enraged at what he saw happening and clearly he assaulted his brother. On the trial judge�s finding of facts, with which there is no reason to interfere:

�Wayne Bishop showed him a copy of the court order and said words to this effect, �I have a court order here and I believe it is valid�, and he was attempting to say more and to read the order to him when he was punched in the face by Ross Bishop.�

The trial judge also found that, even before he came up to Wayne Bishop, before asking, �What are you doing here?�, and therefore before he knew about the court order, Ross Bishop was already signalling for his workers to come and assist him to deal with the situation.

On these facts, the issue is whether Ross Bishop�s assault on his brother was merely the result of his anger at him trying to take the machinery or did he also have sufficient knowledge of the court order to know that it authorised his brother to be taking the machinery? To convict of contempt of court, the trial judge must be satisfied, beyond reasonable doubt, that the contemnor had �proper� notice of the fact of the court order and its likely contents so that he was consciously aware that he was defying it.

The trial judge�s finding on this point was:

�I do not believe Ross Bishop�s evidence that he struck him before he read out any part of the order. Thus Wayne Bishop was in the act of serving the order upon him when he was assaulted. I consider that the defendant thus had knowledge of the order, or, if he did not have knowledge of its contents, it was because he chose to assault his brother at the very moment that his brother was serving the order upon him and explaining it to him.�

The learned trial judge therefore found, in the alternative, that the appellant either had knowledge of the court order and its contents or he ought to have had that knowledge. On the authorities, and as a matter of practical reality, that falls short of being satisfied beyond reasonable doubt of the essential element of proper service.

The actions of the appellant in assaulting his brother in the way that he did were repugnant and constituted a serious criminal offence. The mere fact that the assault took place while his brother was, at first executing, and then, rather desperately, trying to serve a court order does not, of itself, make that assault also a contempt of court: it depends on that essential element of knowledge about the contents of the court order.

Notice of Appeal dated 26 April 1989

(Dealing with the judgment of 17 March)

1.������ Upheld.

2.������ Rejected.

3.������ Upheld.

4.������ Upheld.

5.������ Rejected.

6.������ Upheld.

7.������ Rejected.

8.������ Upheld.

Amended Notice of Appeal dated 21 June 1989

(Dealing with the judgment of 2 May)

3.������ Upheld.

4.������ Upheld.

5.������ Upheld.

6.������ Rejected as regard first appellant only.

9.������ Upheld.

10.���� Upheld.

11.���� Upheld in regard to first appellant only.

12.���� (renumbered from 6) Had the conviction been upheld the sentence is not excessive.

13.���� (renumbered from 7) Upheld.

14.���� Upheld.

This appeal has raised two very important and related principles. The first the necessity to:

�... protect the administration of justice by demonstrating that the courts� orders will be enforced.� Australasian Meat Industry Employees� Union v Mudginberri Station Pty Ltd (1987) 16 IR 242.

The second principle is that the courts must uphold and protect the fundamental rights of persons brought before the courts in accordance with the principles of natural justice and in accordance with the overriding terms of s 37 of the Constitution.

When there is an apparent conflict in applying the two principles, it will usually be resolved by realising that the requirements of the first principle will be best satisfied by strictly enforcing the second principle.

It is comparatively easy for a court to apply these principles in a normal criminal or civil case as the neutrality of the court is not in question. It is more difficult sometimes, and yet vitally important, to apply the same principles when contempt of court charges are being considered. In these cases, where the uninformed public will consider that the court itself is an aggrieved party, the contempt must be strictly proved beyond reasonable doubt after fair consideration has been given to the contemnor�s fundamental rights.

Given that fair consideration now, isolated by time from the drama of those violent events, I consider that it was not strictly proved beyond reasonable doubt that contempt of court occurred on 10 or 11 March 1989.

The defects are, in my opinions, not merely procedural matters which could be rectified by ordering a retrial of the issue. With regard to the order of 22 May, one defect involved service and proper notice of the order of Woods J and that cannot now be cured. With regard to both the 17 March and the 2 May orders, on the view which I have taken, there is the further defect that the original order which was being resisted was not sufficiently clear and unambiguous to be the basis for an action of contempt of court.

Once again there is no way that this defect could be cured by merely ordering a rehearing.

I would allow this appeal of all defendants against all convictions for contempt of court.

I make no order as to costs.

KONILIO J: I concur with the decision of Barnett J that the appeal should be upheld and all convictions of the appellants for contempt of court should be quashed.

The basis for this decision is that the order of 9 March 1989 by Woods J was not sufficiently clear and unambiguous to be the basis of an action for contempt.

I also make no order as to costs.

Appeals allowed

Lawyers for the appellant: Henao Cunningham & Co.

Lawyers for the respondents: Blake Dawson Waldron.