Taakoka Island Villas Ltd v Moore [2010] CKHC 64; OA 1.2008 (22 October 2010)

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

OA 1/2008
(CA 6/2009)

IN THE MATTER of AREMANGO SECTION 7A1A2, NGATANGIIA

BETWEEN

TAAKOKA ISLAND VILLAS LIMITED of Rarotonga
Applicant

AND

TRAVIS MOORE
Respondent

JUDGMENT OF WESTON CJ AS TO COSTS

Background

[1] On 18 March 2009 I delivered a Judgment in this Court finding that Mr Moore was in contempt of court (the Court of Appeal erroneously said the Judgment was dated 18 September 2009 – see paragraph [1] of its Judgment). Mr Moorealed from that Judgmendgment. The appeal was heard on 15 June 2010 and a Judgment delivered 18 June 2010. The appeal was successful. Mr Moore now seeks costs iatiolation to the original hearing in this Court.

[2] On 13 May 2009 I delivered a Judgment in relation to costs. I awarded the applicant $2,500. Mr Vlabure had submitted tn aptn appropriate costs award ward would be $200 to $500. The Deputy Registrar advises me that he distributed this Judgment to Messrs Mornd Vakalalabure on 14 May 2009.

Theb>The Judgment of the Court of Appeal

[3] The first ground of appeal was that the High Court had erred in not using criminal procedure to deal with the alleged contempt. At [9] the Court of Appeal concluded:

“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).”

[4] No express reasons are given for that conclusion, the Court apparently being satisfied that the Criminal Procedure Act governed the allegations. At paragraph [12] the Court restated its conclusion, saying:

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

[5] The appeal, then, succeeded on what is essentially a procedural ground. That is, the Court of Appeal concluded that the procedure adopted by the applicant, and accepted by the High Court, was incorrect. It is not a conclusion that the contempt itself was without foundation. Indeed, at paragraph [5] the Court noted:

“The undisputed evidence is that mining continued for a further seven hours until 9pm.”

[6] And, at paragraph [13] the Court said

“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.”

[7] Costs were addressed by the Court at page 6 to the extent that the Court acknowledged that the appellant, appearing in person, was entitled to be paid filing fees and the costs of preparing the record. No other costs orders were made.

Subsequent memoranda

[8] Shortly after receiving the aforesaid Judgment Mr Moore sought further ficatiication from the Court of Appeal by way of a memorandum dated 23 June 2010. In paragraph 5 of that memorandum he submitted the question of costs in the High Court should be returned to that Court for determinationation.

[9] The President of the Court responded on 24 June 2010 saying “Mr Moore has now no costs liability in the High Court since the Judgment has been set aside."

[10] Following this exchange, Mr Moore lodged a memorandum in the High Court (dated 6 June 2010 on its face but filed 6 July 2010) seeking to have costs fixed within the Court’s civil jurisdiction. Moreover, he soughts on an indemnity basis. He claimed $14,000. There was no e no evidence as to what he had been charged by Mr Vakalalabure.
[11] In ] In paragraph 15 of that memorandum Mr Moore submitted:

“In this matter the Applicancifically ignored the clear provisions of sections 36 to 41 of the Judicature Act 1981 on c on contempt and proceeded down the road ovincing the Court to ignoregnore those provisions and sought a civil contempt fine of $20,000. This was clearly wrong and the Court of Appeal commented that this Court deliberately ignored the statutory scheme of contempt.”

[12] The second sentence in the extract quoted above does not find any support in the Judgment of the Court of Appeal. Mr Moore has subsequ arranged nged for a transcript of the hearing before the Court of Appeal to be typed back and this has been supplied to the Court. At page 17 of that transcript there is an exchange between M0;Rokoika and Smellie #160;J whi claimed to be thbe the basis for Mr Moore’s assertion. If so, it is fair to say that Mr Mhas entirely misread the ethe exchange between Bar and Bench.

[13] The applicant’s memorandum in response d13 Ju10 submitted that the appeal had been determined ined and that the issue of costs in both toth the Court of Appeal and High Court was dealt with consequent upon the President’s Minute of 24 June 2010.

[14] There was a further memorandum from Mr Moore dated 15 July 2010 alleging that he had had no notice of the Costs Judgment and therefore had not sought leave to appeal it. He referred to rule 300, Code of Civil Procedure, in support of his application that he was entitled to costs.

[15] The applicant responded on 20 July 2010. It was submitted that the Court of Appeal had fully disposed of the costs issue.

[16] Mr Moore lodged aher memorandurandum on 3 August 2010 responding to the memorandum dated 20 July 2010. In paragraph 6 Mr Moore repeated his earlimmecomment viz:

“In fact the Court of Appeal did not mince its words in making it clear that there was a deliberate decision not to follow the Judicature Act”.

[17] I repeat what I said at paragraph [12] above.

[18] On 6 August 2010 I issued a Minute having reviewed the various materials so far described (except for the memorandum dated 20 July and the further memorandum dated 3 August – both of which I have since reviewed). In that Minute I invited further submissions on two matters. First, that it was not open to the Court to award costs in its civil jurisdiction. Secondly, as a result of Mr Mo8217;s submission that heat he was not aware of the costs decision in this Court, and thus did not appeal it, I wanted to be surhad had every opportunity to address that issue.

[19] There was then a further seer series of memoranda.

[20] Mr Moore in his memorandum dated 23 August 2010 argued that it had been made clear to the High Court by Mr Vakalalabure that contemoulshould be dealt with in the Court’s criminal jurisdiction. He appended submissionsupport of that proposition.tion. I do not accept Mr Moore’s subon. At no t no time prior to 18 March 2009 did Mr Vakalalabure m submission tion that the applicant had used the wrong procedure. As this Court’s earlier Judgment made clear at [29]re we submissions from from either counsel by reference to the correct procedure to be adopted. ted. The relevant extract from the High Court’s Judgment is quoted by the Court of Appeal in paragraph [7]. There is no suggestion in that Court’s Judgment that the earlier conclusion of this Court was incorrect.

[21] Mr Moore went on to refer subs subsequent approach made to the learned President in a memorandum dated 18 August 2010. The President replied that the rolthe Court of Appeal was now at an end and made the suggestion that Mr Moore could make make applocation to the High Court to reconsider its costs order. Mr Moor not tell the Presidentident he had already made such an application.

[22] There hen a lengthy memorandum from the applicant dated 8 Septembptember 2010. Inter alia, counsel explored the proposition that Mr Moore wt aware of this Cour Court’s earlier costs decision. In that regard, it seems fairly clear to me that a copy of the costs ent was sent to Mr Vakalalabure as then counseounsel. But in any event, the question oion of costs was clearly treated as being a live issue in Mr Moore’sal. Certainly,inly, I do not approach the current application for costs on the basis that there was not an appeal in relation to the earlier costs Judgment. Mr Moore seems to think that is the approach being taken by this Court. If so, he is wrong.

[23] For completeness, I also mention a memorandum lodged by Ms Rokoika on 8 September 2ho appeared for the applicant in the Court of Appeal. She eShe explained what had happened in relation to the earlier Costs Judgment.
[24] Further, lengthy, submissions were submitted on 15 and 21 September 2010. I have have already mentioned the transcript of the hearing before the Court of Appeal and this is attached to Mr Moore’s further memumandum of 15 September 2010. I have read both of these memoranda.

[25] On 1 October 2010 (NZT) I issued a Minute seeking submissions on the followingosition: “In New Zealand, the question of costs ints in a failed prosecution would be dealt with by reference to the Costs in Criminal Cases Act 1967. There does not appear to be any Cook Island equivalent. The closest statutory provision appears to be section 414(3) Crimes Act.”

[26] Subsequent memoranda supplied by Mr Mand then the applicant cont confirmed that proposition.

Discussion

[27] I proceed on the basis that I am able to entertain Mr Moore’s application for costs in this Court.

[28] I am satisfied that I do not have jurisdiction to order costs in favour of Mr Moore in the civrisdiction tion of the Court. It would be an odd state of as if, Mr Moore having ving succeeded in arguing that the criminal procedure should have been followed, I should then exercise thrt’s civil jurisdictidiction when it came to costs.

[29] The fact of the matter is that the appeal succeeded on a procedural ground. The Court of Appeal made no conclusions in relation to the substance of the allegations. Indeed, the applicant was invited to come again if it chose to do so.

[30] Consequently, this is a case where (effectively) a criminal prosecution failed because the wrong procedure was used. In New Zealand, there is jurisdiction under the costs in Criminal Cases Act 1967 to award costs to a successful defendant. The Court is to have regard to various issues specified in section 5 of the Act. The essential question for the Court is sometimes put in terms of whether the prosecution was reasonably and properly brought and pursued. This is a significant standard. There is no equivalent legislation in the Cook Islands except for section 414(3), Crimes Act, which provides that where a person is acquitted the Court may order costs in “such sum as it thinks just and reasonable”. Mr Moore wasacquitted and so t so the provision does not apply.

[31] Nevertheless, and in the Court’s inherent jurisdiction, it would seem that I do have jurisdiction to award costs to Mr Mif I thought it appropriatpriate. I do not believe it appropriate for reasons I now explain.

[32] The contempt action failed because the wrong procedus used. Mr Moore has not been aced. Hid. His lawyer dier did not raise the objection which was ultimately successful only on appeal. These circumstances do not closely approximate the test in New Zealand which it seems, to me, is an appropriate benchmark in the absence of a specific statutory provision.

[33] Although Mr Moore alleges there delibeeliberate course of action followed, apparently with the purpose of circumventing the law, there is no foundation in fact for that submission. Indeed, itvely misreads the Judgment of the High Court if, as it appe appears, Mr Moore is asserting that Cous Court, with knowledge of the true position, deliberately adopted some other course. I suspect that Mr Moore is making such legatiegation. Indeed, at tme of the release of the Judgment I noted that Mr Tupa;Tupangaia was d in then the “Cook Island News” as makiatements along similar lines. At the time, I gave consideraideration to having the matter referred to the Solicitor-General to invest whether the statements wers were in contempt of this Court. Mr Moore is not to be tarred by Mr Tupangaia’s brush, but the similarity in the assertions is significant.

[34] I mention all of this because I think that Mr Moore is alg badh botthe pahe part of the applicant and this Cour Court. Certainly, he appears to be doing oing so on the part of the applicant. I be any such submission to be entirely misplaced.

[35] There is no basis upon which hich I would or should make an order of costs in Mr Moore’s favIn so conc concluding, I am exercising the Court’s criminal jurisdiction.

[36] For the avoidance of doubt, I make it clear that the communication from the President referred to at paragraph [21] above is regarded as having no formal standing. Indeed, as the President himself noted, at that point the Court of Appeal was functus officio.

[37] For the further avoidance of doubt, I do not make any formal determination in relation to Mr Morley’s submn that that the question of costs in this Court was fully and completely determined by the President in his Minute dated 24 June 2010. That is because a formal ion is not required, bearing in mind my conclusion as aboveabove. However, I make two observations. First, the President’s response to Mr Moore’s re, whereby teby the President simply stated that Mr Moore had no liability in y in the High Court, is consistent with my view that that was as far as the matter could or should be taken. There was no proper basis to go furthd order costs to be paid to Mr Mand the most that that neet need to be done in the circumstances was to set aside the earlier Costs Order.

[38] My second observation is that there appears to be considerable substance in what Mr Morley submits. Th really ally another way of stating the first observation set out above. However, my preference has been to address the questionosts raised by Mr Moore rather to exclude it e it entirely on the basis that the CourtCourt of Appeal itself had finally determined all cost issues. While I suspect that that was its intention, my preference has been to give Mr Moore the benefit of the doubt.

Conclusion

[39] Mr Moore’s applin for coor costs in the High Court is dismissed. Although Mr Morought costs on this appl application, in the event it was dismissed, I make no order in favour of the applicant.

Dated 22 October 2010 2010 (NZT)

Weston CJ