Moore v Taakoka Island Villas Ltd [2010] CKHC 2; CA 6 of 2009 (18 June 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
LAND DIVISION)

CA 6/09

IN THE MATTER of AREMANGO SECTION 7A1A2, NGATANGIIA

BETWEEN

TRAVIS MOORE of Rarotonga
(Appellant)

AND

TAAKOKA ISLAND VILLAS LIMITED
(Respondent)

Hearing: 15 June 2010
Coram: Barker,
R. Smellie, JA
Fisher, JA
Appearances: Travis Moore for self
Lavenia Rokoika for respondent

Judgment: 18 June 2010

Judgment of the Court

[1] This is an appeal from the judgment of Weston J delivered on 18 September 2009, holding the appellant guilty of contempt of court.

[2] The Appellant's two main grounds of appeal against that judgment are recorded in his submissions as follows:

A) That the trial court erred in law when it held that:

(i) Section 38(a) of the Judicature Act 1981 "... did not dictate that the criminal procedure must be followed", and

(ii) "...I believe it simply requires that contempt must be proved beyond reasonable doubt, before criminal sanctions can be imposed"

2. (i) That the trial court erred in law when it held that the four elements of the offence of contempt in Duff v Communicado Ltd as applied by Potter J, HC Auckland, CIV-2005-404-1808 was applicable in the Cook Islands.
   

(ii) That the trial court breached the fundamental rights and freedoms of the Appellant as enshrined in sections 64(1)(b) and 65 (1)(d) and (e) of the Constitution.

[3] At the hearing before this Court on the 15 June 2010, the Court indicated to counsel and the appellant that the appeal succeeded on the first ground and that accordingly the decision under appeal would be overturned. We now give our reasons for so holding.

[4] The sections in the Judicature Act 1981 dealing with contempt are as follows:

Contempt of Court

36. Contempt of Court defined - Every person is guilty of contempt of the Court who –

(a) Disobeys any judgement or order of the Court, or of any Judge thereof, or of any Justice otherwise than by making default in the payment of a sum of money (other than a penalty) payable under such judgment or order: or

(b) Uses any abusive, insulting, offensive, or threatening words or behaviour in the presence or hearing of the Court, or

(c) Assaults, resists, or obstructs, or incited any other person to assault, resist, or obstruct, any constable or officer of the Court in serving any process of the Court, or executing any warrant of the Court or of any Judge or Justice, or executing any judgment or order of the Court or of any Judge or Justice, or

(d) By any words or behaviour obstructs in any manner the proper and orderly administration of justice in the Court, or

(e) Does any other thing which elsewhere in this Act or in any other Act is declared to be a contempt of the Court, or

(f) Aid, abets, counsel, procures, or incites any other person to commit contempt of the Court

37. Punishment for contempt - Every person who commits contempt of the Court shall be liable to a fine not exceeding $100 or to imprisonment for any term not exceeding 6 months.

38. Jurisdiction of the Court - The offence of contempt of the Court shall be punishable by the Court either-

(a) In the ordinary course of the criminal jurisdiction of the Court, or

(b) In accordance with the provisions of sections 39 to 41 of this Act.

39. Contempt in the face of the Court

(1) If the contempt is committed in the presence or hearing of the Court, any Judge or Justice then and there sitting in Court may, without order or warrant, direct any constable, officer of the Court, or other person to arrest the person so guilty of contempt and to bring him before the Court.

(2) The Court may thereupon, after giving the person so arrested a reasonable opportunity of being heard in his defence, either order him to pay a fine not exceeding $100 or commit him to prison for any period not exceeding 6 months.

40. Discharge of persons in contempt—A person imprisoned for contempt, or for default in payment of a fine imposed upon him for contempt, maybe at any time remitted in whole or in part, either by order of the Court or by warrant under the hand of the High Commissioner.

41. General power to commit for contempt — Nothing in sections 36 of this Act shall limit or affect any power or authority to punish any person for contempt in any case to which those sections do not apply.

[5] The appellant was responsible for mining sand from a leasehold property. The respondent company owns the land. It applied for and obtained an injunction, granted by Weston J at 2 pm or 2 October 2009, restraining the appellant from further mining of sand on it's property. The undisputed evidence is that mining continued for a further seven hours until 9 pm. The respondent's application relied upon the approach to civil cases developed in other jurisdictions and exemplified by the case of Duff v Communicado Limited (1996) 2NZLR 89. A finding of contempt was sought against the appellant and the imposition of a fine of $20,000.00.

[6] Weston J held that Section 38(a) of the Judicature Act applied and having found the contempt proved imposed a fine of $100.00 which is the maximum allowed by Section 37 of the Act.

[7] The Judge's approach to compliance with Section 38(a) of the Judicature Act is set in paragraph 29 of his judgment as follows:

"Section 38 refers to the "offence" of contempt. On one view of it, this might refer to a criminal contempt only. While the language so suggests, I doubt that was legislative intention. Reading section 38 in the context of sections 36 - 41 generally, I believe it was intended to apply to any contempt falling within section 36 (civil and criminal). Section 38(a) provided that contempt is to be punished in the ordinary course of the Court's criminal jurisdiction. What does that mean? I was not addressed on section 38 by counsel. While there was no argument that the procedure adopted by the applicant (an application filed in the civil proceeding) was inappropriate, I need to address whether the application should have been brought in terms of the criminal procedure. I do not believe that such a narrow reading of the legislation is required. This section refers to the "criminal jurisdiction" of the Court but does not dictate that the criminal procedure must be followed. Rather, and reflecting the sui generis nature of the contempt jurisdiction, I believe it simply requires that contempt must be proved beyond reasonable doubt before criminal sanctions can be imposed".

[8] The appellants, first ground of appeal challenges the approach adopted by Weston J as set out in the proceeding paragraph.

[9] There is no doubt the appellant was entitled to have the charge of contempt made against him dealt with in accordance with the Criminal Procedure Act 1980-81 and that the common law approach, (which the respondent sought to employ), is not available in this jurisdiction for an alleged contempt pursuant to section 36(a).

[10] The Criminal Procedure Act Part 1 deals with the procedure for prosecution offences. It requires the laying of an information (Section 10) in the prescribed form (Section 13) and is to contain "sufficient particulars" (Section 16). There is to be a summons to the defendant (Section 22) and various provisions for the taking of evidence in open Court subject to cross examination in Sections 32 to 34. General provisions as to trial are set out in Sections 42 to 68 inclusive, and provide inter alia that the defendant and witnesses are to be present (Sections 53 to 60 inclusive). Conduct of Trial includes provisions as to evidence (Section 70) addresses (Section 74) and that no adverse comment is to be made when the defendant refuses to give evidence (Section 75).

[11] Section 75, the last mentioned in the above paragraph assumes particular importance here. During the course of several Chambers Hearings the appellant was warned that failure to explain could lead to adverse inferences being drawn against him, see for example, paragraph 13 of the judgment.

"The question of his knowledge of the Order and when he learnt of the injunction order is likely to be highly relevant. He should ensure that his affidavit addresses this. He is hereby put on notice that the Court may draw adverse inferences against him if matters are not fully detailed and explained".

[12) What happened here is comparable with the circumstances addressed by the Privy Council in Taito v The Queen (2003) 3NZLR 596. In that case the Court of Appeal in New Zealand had adopted a procedure regarding the granting of Legal Aid. The procedure was adopted for practical administrative purposes but it was successfully challenged, in the Privy Council. Their Lordship's at page 600 of the report said:

"Finally, it is necessary to examine the Solicitor-General's argument that there was an overall process which meets the requirements of natural justice. It is necessary to look globally at the operation of the practice of the Court of Appeal. It was undoubtedly a response to a perceived serious problem, namely the need to find a practical and just way of disposing of unmeritorious appeals. But the procedural rights of appellants under the legislation served an instrumental role in the sense of helping to ensure correct decisions on the substance of cases: Craig, Administrative Law, 4t5h ed, 1999, 402. Decisions that the appeals were in truth unmeritorious could only be made after observance of procedural due process. Unfortunately, the system failed this basic test".

Here, the shortcut approach adopted by the Judge bypasses the provisions of the Criminal Procedure Act.

[13] It will be for the respondent to decide whether it can start again employing the correct procedure. Irrespective of whether that occurs, this appeal must succeed.

[14] Having reached that conclusion we need not consider the other grounds of appeal. There is, however, one aspect of the judgment upon which we think it appropriate to comment.

[15] It arises out of paragraphs 32 and 48 of the judgment which are set out here under:

"(32) Obviously, in most cases, actual knowledge of the terms of the Order must be shown before a defendant will be found in contempt but I am satisfied there are limited cases where the knowledge of the duly authorised solicitor may provide a sufficient basis for an adverse finding. I have been referred to a number of authorities by Mr Morley but none of them is directly in point. Accordingly, I approach this issue from first principles. My reasoning on this topic can be found at (48) below". (emphasis added).

"(48) In paragraphs 14-19 of his second affidavit Mr Moore elaborated upon his earlier evidence. He made it clear that Mr Vakalalabure had authority to consent to the injunction. He put it on the basis that Mr Vakalalabure had authority to make a decision on the point and that he, Mr Moore, had effectively left the decision to Mr Vakalabure. In this way, I assume, Mr Moore intended to leave open the suggestion that he could not be expected to know that an injunction could be granted. Frankly, I think that is sophistry. Reading Mr Moore's affidavits as a whole, it seems fairly clear that he knew an injunction was inevitable but he would continue to mine sand in the meantime. He then clothed Mr Vakalalabure with the authority to consent to an injunction. In these circumstances, he can hardly complain if that occurred and the Court then proceeds on the basis he had the knowledge of the very Order to which he had authorised his solicitor to consent. Otherwise, counsel could consent to an injunction and then take no steps to notify the client, or the client could avoid such communications. It would be a most unjust outcome if, in those circumstances, the client could avoid the consequences of counsel's actions in consenting to the injunction. In such circumstances, counsel has an obligation to notify the client immediately and, equally, the client has an obligation to seek out the solicitor and find out what has happened".

It appears the learned Judge did not have submissions on these issues and nor have we. We say no more than that we incline to the view that the "Limited Cases" approach referred to, where the solicitor knows of the order but the alleged contemnor does not, requires further consideration.

Result

The appeal is allowed and the orders made by Weston J quashed. The appellant who appeared in person is entitled to be paid by the respondent his filing fees and costs of preparing the record. These costs are to be fixed by the Registrar if agreement cannot be reached.

Barker P,

Smellie JA,

Fisher JA,