Legal Index: C
Contempt of court, costs and customary land — the four elements of contempt by disobedience, where the power to award costs comes from and when it is ordered on an indemnity basis, and which court decides who owns customary land.
Contempt of court — disobeying an order
Contempt is punishable under Constitution section 160(2) and section 163(2), and the procedure is in Order 14 Division 6 of the National Court Rules 1983. What must be proved was settled in 1989.
Bishop v Bishop Bros Engineering Pty Ltd [1988] PGSC 8; [1988-89] PNGLR 533 (Supreme Court)
In proceedings for contempt for failing to obey a court order, four things must be established:
(a) the order must be clear and unambiguous — following 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;
(b) the order must have been properly served on the alleged contemnor, so that they have knowledge of its terms — following Ronson Products Ltd v Ronson Furniture Ltd [1966] 2 All ER 381 and Biba Ltd v Stratford Investments Ltd [1972] 3 All ER 1041;
(c) the failure to obey must be wilful; and
(d) the standard of proof is beyond reasonable doubt.
Applying that, the Court held that an order that the plaintiffs “be granted access to, possession of and use of their goods” situated on the defendant’s premises was ambiguous: it did not authorise immediate physical removal of the goods with sufficient clarity to make the defendant’s resistance a contempt. The conviction could not stand.
Bishop is cited as often for what it says about orders as for what it says about contempt. An order that describes a right in general terms — access to, possession of, use of — may be unenforceable by contempt because it does not tell the party precisely what to do or refrain from doing.
A party who expects to have to enforce an order should ask for one that states the act required, by whom, and by when. The time to fix ambiguity is when the order is settled, not when contempt is alleged.
Kwimberi v The State [1998] PGSC 9; SC545 (Supreme Court) — cites Bishop among the governing authorities, and deals with a different species of contempt: the failure of a lawyer to appear at a criminal trial listed for a date fixed with his consent. The Court held that such a failure, in circumstances amounting to gross carelessness, is a contempt of court.
The distinction matters. Bishop concerns contempt by disobedience of an order, where the four elements above apply. Kwimberi concerns conduct that obstructs the administration of justice, where the question is the quality of the conduct rather than the clarity of an order. The criminal standard of proof applies to both.
Where the contempt is committed in the face of the Court, the Court may deal with it at once, but must still put a statement of the charge to the contemnor and give an opportunity to answer it.
Where it is not, the charge is brought by notice of motion supported by affidavit, and the motion and affidavit must be personally served. Given the criminal standard of proof, the statement of charge must identify the order said to have been disobeyed and the act said to constitute the breach with precision.
Costs
Where the power to award costs comes from, and when a party will be ordered to pay on an indemnity basis rather than the ordinary one.
Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PGSC 23; [1982] PNGLR 385 (Supreme Court — Kidu CJ, Pratt and Bredmeyer JJ)
The power of a court or tribunal to award costs must be conferred by statute. It is not part of a court’s or tribunal’s inherent powers.
That proposition matters because it creates a gap: Order 22 of the National Court Rules 1983 deals comprehensively with costs in the National Court, but there is no equivalent for the Supreme Court, and the Supreme Court Act and Rules are largely silent.
Moses v Magiten [2006] PGSC 25; SC875 (Supreme Court) — four propositions:
(1) When hearing and determining an appeal, the Supreme Court has by virtue of section 6(2) of the Supreme Court Act all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court.
(2) Under section 8(1)(e), the Supreme Court may, if it thinks it necessary or expedient in the interests of justice, exercise in relation to its own proceedings any other powers that may for the time being be exercised by the National Court on appeals or applications.
(3) The combined effect is that whatever the National Court can do regarding costs, the Supreme Court can do.
(4) It is appropriate to draw on Order 22 of the National Court Rules as a guide to the Supreme Court’s powers, practice and procedure on costs.
Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (Supreme Court — Salika DCJ, Gabi and Hartshorn JJ)
A defendant failed to give discovery of invoices he had maintained he held, and which he was required by law to keep for seven years as part of the records of a liquidation. His defence was struck out under Order 9 Rule 15, and that decision was upheld.
On costs, the Court found that his actions had caused the respondent an enormous amount of wasted time, effort and money, and that his conduct had been improper, unreasonable and blameworthy. It ordered him to pay the costs of the appeal on an indemnity basis, including any hearing as to quantum.
That trio of adjectives is the working test. Indemnity costs do not follow from losing, or from a weak case; they follow from conduct of the litigation that is improper, unreasonable or blameworthy.
Paki also affirms POSF Board v Imanakuan (2001) SC677 on discovery: there is no pre-condition that a court order for discovery must first be obtained before a party may take default action for failure to give discovery.
See how costs are taxed and discovery.
Customary land — jurisdiction
Which court decides a dispute about customary land. The answer is rarely the National Court, and proceedings commenced in the wrong forum fail on jurisdiction rather than merit.
Golpak v Kali [1993] PGNC 34; N1182; [1993] PNGLR 491 (National Court, Doherty J)
A dispute over a contract allowing land to be used as a log pond. The land was customary and not alienated. The Court held that the fundamental issue was who had acquired a right to the land in custom, because only a person with such a right had standing to challenge the contract; and the contract was itself an “interest in land”, so title and accession to title were in issue.
The conclusion is emphatic: notwithstanding sections 155 and 166 of the Constitution, jurisdiction to determine ownership of and title to customary land lies in the Local Land Court under the Land Disputes Settlement Act (Chapter 45) — and until that is determined the National Court cannot arbitrate.
Wabia v BP Exploration Operating Co Ltd [1998] PGNC 18; N1697 (National Court) — cites Golpak and states the position in four propositions.
(1) The National Court has no jurisdiction to entertain issues of ownership and title to customary land; that jurisdiction is vested in the Local Land Court under the Land Disputes Settlement Act.
(2) It cannot arbitrate on forms of accession or succession, and therefore on ownership or interests in customary land, because it has no jurisdiction to do so.
(3) It has no jurisdiction over compensation claims relating to customary land connected with petroleum exploration — that jurisdiction is in the Warden’s Court under sections 81 and 82 of the Petroleum Act.
(4) Ownership in that case had already been determined by the Land Titles Commission, and that determination stood.
A claim that depends on establishing who owns customary land cannot be brought in the National Court, however it is framed — as a contract claim, a trespass, or a claim for compensation. The dependency is what defeats it.
The route is mediation, then the Local Land Court, with an appeal to the Provincial Land Court. Once ownership is determined, a National Court claim that rests on it may proceed. See the Local Land Court and how customary land disputes are decided.
Contrast registered title, where the Land Registration Act and Mudge govern and the National Court has jurisdiction in the ordinary way.