Harmon v Kikorio [1989] CKHC 3; PLAINT No 03.1988 (27 July 1989)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
PLAINT NO. 3/88

BETWEEN

LEE HARMON
of Rarotonga, Public Servant
Plaintiff

AND

PETER KIKORIO,
of Rarotonga, Aircraft Engineer
First Defendant

WILLIAM ESTALL JNR
of Rarotonga, Clerk
Second Defendant

Counsel: Mr. Gibson for Plaintiff
Mr. Sceats for First Defendant
Mr. Appleby for Second Defendant

Date of Judgment: 27 July 1989

JUDGMENT OF ROPER CJ

On the 16th of December 1988, following a defended hearing, Quilliam J gave judgment for the Plaintiff against the First Defendant for $42,450 and costs on account of injuries sustained by the Plaintiff in a motor accident. Quilliam J found no fault on the part of the Second Defendant, who was awarded judgment against the Plaintiff with costs.

On the 29th December the First Defendant filed an application for leave to appeal, which came before Dillon J on the 7th April. Leave was granted with security fixed at $4000 "to be paid by the 10th May 1989 or a bond guaranteeing such sum by a guarantor acceptable to the Registrar and endorsed by one of the banks guaranteeing payment".

The Second Defendant was unable to pay the security or provide the bond within the time-limit, and on the 11th May Mr Sceats filed an application for directions seeking an extension of time for the giving of security to the 31st of May. The application came before me on the 16th May when Mr. Gibson for the Plaintiff submitted that the Court had no jurisdiction to consider it. He relied on Rule 12 of the Court of Appeal Rules 1981 which provides:

12. Abandonment of appeal upon failure to give security for costs - If the appellant shall fail to give security for costs within the time specified in the Order granting leave to appeal the appeal shall be deemed to be abandoned.

It appeared that Mr. Sceats was taken by surprise by this seemingly fatal objection to his application, and to enable the matter to be fully argued I granted leave to Counsel to file memoranda and the last of these was received on the 18th July, with Mr. Gibson and Mr. Appleby making joint submissions.

Mr. Sceat's first submission was that the provisions of the Judicature Act 1980 and the Court of Appeal Rules 1981, in so far as they bear on restrictions on a right of appeal, are inconsistent with the provisions of the Cook Islands Constitution.

Article 60 of the Constitution contains the following provisions concerning appeals from judgments of the High Court:

"80. Jurisdiction of Court of Appeal - (1) Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to hear and determine any appeal from a judgment of the High Court.

(2) Subject to the provisions of this Constitution, and except where under any Act a judgment of the High Court is declared to be final, an appeal shall lie to the Court of Appeal from a judgment of the High Court -

(a) As of right, if the High Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of this Constitution;

(b) As of right, from any conviction by the High Court in the exercise of its criminal jurisdiction whereby the appellant has been sentenced to death or to imprisonment for life or for a term exceeding 6 months or to a fine of not less than $200 and from any such sentence (not being a sentence fixed by law);

(c) As of right, when the matter in dispute on the appeal amounts to or is of the value of $400 or upwards;

(d) As of right, from any judgment of the High Court involving any question as to the interpretation or application or effect of any provision of Part IV A of this Constitution;

(e) With the leave of the High Court in any other case, if in the opinion of that Court the question involved in the appeal is one which by reason of its general or public importance, or of the magnitude of the interest affected, or for any other reason, ought to be submitted to the Court of Appeal for decision.

(3) Notwithstanding anything in subclause (2) of this Article, the Court of Appeal may, in any case in which it thinks fit and at any time, grant special leave to appeal to that Court from any judgment of the High Court, subject to such conditions as to security for costs and otherwise as the Court of Appeal thinks fit.

(4) In this Article, the term 'judgment' includes any judgment, decree, order, writ, declaration, conviction, sentence, or other determination."

And S. 54 of the Judicature Act 1980 provides:-

54. Order granting leave to appeal - (1) No appeal to the Court of Appeal, whether as of right or not, shall be brought except in pursuance of an order of the High Court granting leave to appeal:

Provided that, subject to subsections (3) and (4) of this section, the High Court shall grant such leave in every case where the appellant is entitled to appeal as of right.

(2) Application to the High Court for leave to appeal shall be made at the time when judgment is given or within 21 days thereafter or, if, in the case of any appeal from a judgment of the High Court in the exercise of its criminal jurisdiction, the appellant is not sentenced on the date of conviction, at any time after the conviction but not later than 21 days after the date of sentence.

(3) Leave to appeal shall be granted only on condition that the appellant within a period to be fixed by the High Court, not exceeding 2 months from the date of the hearing of the application, gives security to the satisfaction of that Court or the Registrar thereof in a sum to be fixed by the Court for the payment of the costs of the appeal:

Provided that, in the case of any appeal from a judgment of the High Court in the exercise of its criminal jurisdiction, the Court may grant leave to appeal without requiring the appellant to give security for costs.

(4) Where the Court grants leave to appeal on condition that the appellant gives security for costs, the order granting leave to appeal shall not be sealed until that security has been duly given.

Rule 12 of the Court of Appeal Rules 1981 has been cited earlier in this judgment.

It is true that Article 60 makes no reference to terms and conditions on which leave to appeal will be granted, except in the case of special leave under Article 60(3), and it is common ground that the present case comes within Article 60(2) (c) with appeal as of right.

If, as Mr Sceats argued, the limitations on appeal imposed by S. 54 of the Judicature Act are contrary to the terms of the Constitution, then obvious injustice or absurdity could result and there is a presumption in statutory interpretation against such results.

If Article 60 stands alone, an appeal could be brought at any time after judgment, be it months or years; and with the result that Respondents would be left to bear their own costs on unmeritorious appeals. The Constitution could not have intended those unjust results. Furthermore, express words would be necessary to deprive the Court of reasonable control of its own process, and here they are lacking.

I therefore reject Mr Sceats' first submission.

Mr Sceats' second submission, which has much more merit, was that Rule 12 (already referred to) is inconsistent with S. 72 of the Judicature Act.

S. 72 reads:

72. Non-prosecution of appeal - If the appellant does not with due diligence prosecute his appeal or observe any of the conditions imposed by section 54(3) of this Act (relating to security for costs), the Court of Appeal may dismiss the appeal and any costs thereof and any security entered into by the appellant shall be dealt with in such manner as the Court of Appeal directs.

I agree with Mr Sceats that there is a clear conflict between S. 72 of the Judicature Act the Rule made under that Act: according to the Rule the appeal is deemed to be abandoned upon failure to give the security ordered, whereas S. 72 provides that in that event, the fate of the appeal is left to the discretion of the Court of Appeal.

Mr Gibson argued that while S. 72 gives the Court of Appeal a discretion to dismiss an appeal it does not grant a discretion to reinstate an appeal that has by virtue by Rule 12 been deemed to be abandoned. In short, he argued that Rule 12 prevails and limits the scope of the Court of Appeal's discretion.

I do not accept that argument. The provisions of the Act and the Rules cannot be reconciled and cannot stand together. In that case the subordinate provision contained in the Rules must give way.

The First Defendant has been granted leave to appeal and I direct that the matter proceed to appeal. It will be for the Court of Appeal to decide the consequences of the First Defendant's failure to give security, although should he find it before the appeal hearing, it may well be to his advantage.

Having regard for my conclusions, it is unnecessary to consider Mr. Sceats' third argument which appeared to proceed on the basis that Rule 12 prevailed and the original appeal had been abandoned.

Costs reserved.

ROPER CJ