Concord Pacific Limited v Thomas Nen (2000)
Managing Director of the PNG Forest Authority found in contempt of court
Logging companies mentioned in this document:
Concessions mentioned in this document:
[2000] PNGLR 47
PAPUA NEW GUINEA
[national court of justice]
CONCORD PACIFIC LIMITED; AND
PAISO COMPANY LIMITED
v
THOMAS NEN – MANAGING DIRECTOR, PAPUA NEW GUINEA FOREST
AUTHORITY; AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
waigani: sheehan j
31 July 2000
contempt of court — Charge of contempt — Ruling.
Facts
The National Court issued interim orders on 26 November 1999, restraining the
defendants from closing the operations of the plaintiff companies. The plaintiff
companies were involved in logging operations. Notwithstanding these orders, the first
defendant wrote to the plaintiffs to cease operations under the Timber Authority. He
claims that he had no intention of breaching the Court orders but acted under the belief
that the injunction orders would not extend beyond the term of the Timber Authority
itself.
Held
1. It is a civil contempt of court to refuse or to neglect to do an act required by a
judgement or order, or to disobey a judgment or order requiring a person to
abstain from doing a specified act stipulated in the order of the Court. Every
person against whom an order is made has an obligation to ensure it is obeyed
unless and until the order is discharged: Chuck v Cremer (1846) 47 ER 820
applied. Yap v Tan & Ors [1989] PNGLR 227 followed.
Papua New Guinea case cited
Yap v Tan & Ors [1987] PNGLR 227.
Other cases cited
Chuck v Cremer (1846) 47 ER 820.
Hadkinson v Hadkinson [1952] All ER 567.
Stancomb v Trowbridge U.D.C. [1910] 2 Ch 190.
Counsel
F Damem, for the plaintiff.
B Ninai, for the defendants.
31 July 2000
Sheehan j. The first defendant Mr Thomas Nen, the Managing Director of the Papua
New Guinea Forest Authority, is charged with acting in contempt of a Court order.
The essential facts are that this Court on 26 November 1999, issued interim orders
restraining the defendants from closing the operations of the plaintiff companies and or
restricting of logging and loading prescribed under a Timbers Authority issued under the
Forestry Act, 1991. The specific terms of that order are:
"1. The defendants named herein, their agents or servants or such other persons
are restrained from doing anything or taking actions or making any omissions
which would have the effect of preventing the first and second plaintiff from
undertaking any road construction work on Aiambak-Kiunge road Project
pursuant to Timber Authority No. 024
2. That the first and second plaintiffs be allowed to operate under the Timber
Authority No. 024 in the project area in question pending the final
determination of the substantive action to be instituted by the plaintiffs."
Following that order the plaintiff formally applied for and were granted leave to apply for
judicial review of the first defendants direction that all operations under the Timber
Authority No. 024 should cease. That leave was granted on 14 December 1999, when a
further order was made extending the interim injunctions until the review was heard and
decided. The wording of that order was:
"The Orders in nature of injunction granted on 29 November 1999, are extended
until the completion of this Review".
A sealed copy of the second order was served on the defendant the following day, 15
December.
Notwithstanding these orders, by notice dated the 20 April 2000, he first defendants gave
formal notice that the plaintiffs cease operations under the Timber Authority. The actual
notice given by the first defendant and on which the charge of contempt is based, reads as
follows:
"National Forest Services
The Chairman
Paiso Limited
C/- Concord Pacific Limited
P O Box 1243
BOROKO
ATTENTION: David Kaya
Dear Sir
RE: EXPIRED TIMBER AUTHORITY (TA 1-2/94) KIUNGA/AIAMBAK
ROADLINE PROJECT.
The Timber Authority No. (TA 1-2/94) held by you in respect to Kiunga/Aiambak
Roadline Project expired on the 18th April, 2000.
You are advised to immediately cease all felling and loading operation upon
receipt of this letter.
Logs that were felled before the expiry date should be snigged, hauled and
disposed of accordingly.
For your adherence.
Your sincerely
THOMAS NEN
MANAGING DIRECTOR
cc: Area Manager – Southern Region
cc: Chairman – WPFMC
cc: Chairman – Chairman of the Committee responsible for Forestry Matters
in Western Provincial Administration."
The first defendant Mr Nen has defended the charge and by affidavit deposed that he had
no intention of breaching any Court Order but acted under the belief that the injunction
orders would not extend beyond the term of the Timber Authority itself. That is, when the
Timber Authority-on his interpretation-expired on 18 April 2000, then the injunctive
orders must have also lapsed. That contention has been submitted again by counsel on his
behalf in these proceedings.
For the plaintiff Mr Damem has maintained that notwithstanding first defendants declared
belief as to the validity of the Forest Authority, the orders made speak for themselves.
They are in the clearest of terms.
It was submitted that there could be no dispute that Mr Nen was fully aware of the Court
Order of 26 November 1999, extended on 14 December 1999. They specifically state that
the injunctions are to remain in force until the substantive judicial proceedings are
completed. The evidence plainly shows that the first defendant, Mr Nen, had taken it
upon himself to interpret those orders in the light of his own view of the validity of the
Timber Authority when he well knew that the validity or otherwise of the Timber
Authority was an issue in the substantive proceedings pending in Court. It was submitted
that in so acting and failing to go back to the Court to seek clarification or discharge or
the orders he has placed himself in contempt of the Court orders.
It is clear law in PNG: Yap v Tan & Ors [1987] PNGLR 227; Hadkinson v Hadkinson
[1952] All ER 567 and Chuck v Cremer (1846) 47 ER 820; Stancomb v Trowbridge
U.D.C. [1910] 2 Ch 190) that it is a civil contempt of court to refuse to or neglect to do
an act required by a judgement or order or to disobey a judgement or the order requiring a
person to abstain from doing a specified act stipulated in order of the Court. Further it is
the obligation of every person against whom an order is made that it be obeyed unless
and until the order is discharged. The law remains as was stated in the Cremer case cited
above:
"A party, who knows of an order, whether null or valid, regular or irregular,
cannot be permitted to disobey it. It would be most dangerous to hold that the
suitors, or their solicitors, could themselves judge whether an order was null or
valid — whether it was regular or irregular. That they should come to the court
and not take upon themselves to determine such a question. That the course of a
party knowing of an order, which was null or irregular, and who might be affected
by it, was plain. He should apply to the court that it might be discharged. As long
as it existed it must not be disobeyed."
There is no doubt but that Mr Nen was fully aware of the orders. But believing that the
orders were not effective after the expiry of the Timber Authority he waited until the date
that he considered that the authority had expired and then issued the directive that the
plaintiffs should cease operations. He did not seek to have the orders discharged.
Notwithstanding his intention to act within the law, it is plain that he did act in breach of
a Court Order. Any breach of Court Order even without the direct intention to disobey
that order, renders a person liable to the process and penalties for contempt.
Those penalties when the contemnor is a person include both imprisonment or a fine or
both. And it can be seen as a measure of the seriousness in which an offence of contempt
is regarded by the Court that there are no limits placed on the extent of a fine or the term
of imprisonment. Contempt being an offence against the dignity and prerogatives of the
Court, such penalties, whether severe or even not imposed at all, remain in the discretion
of the Court.
In the present case Mr Nen is plainly in contempt. Its not enough for him to say that there was no intention to breach a Court Order or that he acted in the belief that he was entitled to do so. The proper course for him to have taken - particularly when he has such resources and access to advice on law to call on was to obey the order but if aggrieved by it, to seek its discharge. It was wrong to act as he did do, disobeying the order and then by way of defence to the charge of contempt, challenge the validity of the Court orders. But accepting as I do that there was no deliberate breach of the Court Order but rather an ill advised, unintentional breach of the injunction, rather than to now proceed to submissions on penalty, I think its sufficient for this Court to express the view that the Defendant has committed a breach and impose on him the costs of the motion for contempt, trusting as I do in his honest future intention to perform all necessary obligations under the order until it is discharged upon the hearing of the judicial review. With regard to costs, these too remain in the discretion of the Court and in this case where the process has been brought about entirely by the actions of the first defendant it is appropriate that orders for costs be on a solicitor/client basis. Accordingly, the ruling of the Court is that Thomas Nen the first defendant is found guilty of contempt in breaching the court orders of 26 November 1999 and 14 December 1999 and that costs of these proceedings in respect of the motion for contempt shall be in favour of the plaintiffs on a solicitor/client basis. Lawyer for the plaintiffs: Damem Lawyers. Lawyer for the defendants: Patterson Lawyers.
