In re Charles Gordon [1976] FJCA 4; Civil Appeal No 49 of 1975 (16 March 1976)

IN THE FIJI COURT OF APPEAL
Civil Jurisdiction

Civil Appeal No. 49 of 1975

IN THE MATTER of contempt of Court of the Senior Magistrate at Lautoka

AND

IN THE MATTER of CHARLES GORDON

AND

IN THE MATTER of an Appeal from the decision of Mr. Justice J. T. Williams given at Lautoka on the 27th day of November 1975 whereby he ordered the said CHARLES GORDON to pay a fine of $100 or suffer 30 days imprisonment.

In re: CHARLES GORDON – Appellant

Date of Hearing: 9th March 1976
Date of Judgment: 16th March 1976

S.M. Koya for the Appellant
J.R. Flower for the Attorney-General and as Amicus Curiae

JUDGMENT

GOULD V. P.

The appellant brings this appeal against an order by Williams J. in the Supreme Court at Lautoka whereby he held that the appellant was guilty of contempt of the Court of the Senior Magistrate at Lautoka and imposed a fine of $100.00 on the 27^th November 1975.

The circumstances are entirely unusual and we will outline the sequence of the events in brief. On the 29^th August, 1975, the appellant appeared before Williams J. as Barrister and Solicitor for the plaintiff in civil action No. 60/1975 in the Supreme Court at Lautoka. He then applied for a warrant to arrest the defendant in that action, B. Anderson, as an absconding debtor. Williams J. refused the application on various grounds.

On the same date the appellant on behalf of the same plaintiff commenced proceedings in the Senior Magistrate’s Court Lautoka in action Np, 431/75 against the same defendant, abandoning $1000.00 to bring it within the Magistrate’s pecuniary jurisdiction. The 29^th August, 1975, was a Friday and on Saturday the 30^th August the appellant applied for and obtained from the Senior Magistrate a warrant for the arrest of the defendant in that action as an absconding debtor.

A summons was then issued from the Supreme Court under the hand of Williams J. and directed to the appellant calling upon him to appear before the Supreme Court on the 24^th day of October, 1975, at 9.30a.m. to show cause why he should not be committed for contempt of Court. The summons narrated the proceedings of the 29^th August, 1975, before the Supreme Court, the filing of the action in Senior Magistrate’s Court and the application to the Senior Magistrate for the warrant of arrest. The gravamen of the charge then followed and can be seen from the following paragraphs of the summons:

“You did not request or obtain a copy of the Supreme Court’s judgment, containing its reasons for dismissing the said application, but orally informed the magistrate that the Supreme Court had rejected the application because the affidavit contained insufficient grounds, thereby inducing the magistrate wrongly to believe that the grounds set out in the affidavit before him were more adequate than those presented to the Supreme Court.

You told the magistrate it was too late to return to the Supreme Court, thereby inducing him wrongly to believe that the affidavit before him differed materially from that which the Supreme Court had considered, and that had it not been too late, the affidavit presented to the Senior Magistrate would have been used to support a renewed application in the Supreme Court.

You informed the magistrate that he plaintiff was withdrawing his claim in the Supreme Court, thereby inducing the magistrate wrongly to believe that the plaintiff was entitled to withdraw the claim under 0.21 r.2, and would do so, and that as a result of the said withdrawal the magistrate would have jurisdiction to hear the action after the plaintiff’s arrest.

The magistrate’s recorded reasons reveal that he was misled as aforesaid and he granted the application.

On 10^th September, 1975 you withdrew the action from the Magistrate’s Court.”

The summons concluded with a notice that copies of the proceedings in both Courts were attached and that the appellant might file an affidavit not less than 2 days before the hearing date, setting out his reasons and explanations for his conduct, without prejudice to his right to address the Court and present submissions on the facts. The summons was duly served with a copy of all the documents filed in the Supreme Court action and of the Judge’s notes and order refusing the application and his judgment: also copies of writ of summons and the affidavit of the plaintiff in the Magistrate’s Court and of the Magistrate’s notes and the absconding debtor’s __________. On the 23^rd October, 1975, the appellant _________ and filed an affidavit dealing in detail and the allegations made in the summons and _________ “in any event” his sincere apologies to the Supreme Court and the Magistrate’s Court in the matter.

On the 24^th October 1975 the appellant appeared in person before Williams J. in the Supreme Court and was also represented by counsel. ________ hearing argument William J. reserved his ________ and later delivered judgment dated _____ November, 1975. This appeal is the outcome, ____ appellant being represented by Mr. S. M. Koya and Mr. J.R Flower representing the Attorney-General.

The grounds of appeal as set out in the ________ of Appeal are

“(a) That the learned Judge erred in law in instituting the said Summons to show cause against the Appellant.

(b) That the learned Judge acted in those proceedings as the Prosecutor, Complainant, Witness and the Judge in deciding the issue and therefore the whole proceedings are void and unlawful upon the grounds of breach of the relevant rules of the natural justice.

(c) That there was no evidence upon which the learned Judge could in law base his decision to find the Appellant guilty of contempt of Court.”

Before dealing with these grounds in detail it will be necessary to say a word about procedure generally in contempt proceedings in Fiji. The Supreme Court rules on the subject are an adaptation of the English Rules of the Supreme Court, Order 52, though the Fiji rule has a narrower compass. As adapted, the first three sub rules of _________ read –

“1. The power of the Supreme Court to punish for contempt of court may be exercised by order to committal.

2. This Order applies to contempt of Court –
   
   • (a) committed in connection with –
     
     • (i) any civil proceedings before the Supreme Court; or
       
     • (ii) civil proceedings in an inferior court;
       
   • (b) committed otherwise than in connection with any proceedings.
     
3. An order of committal may be made by a single judge.”
   

It will be noticed that whereas the English rule includes (with some exceptions) contempt committed in connection with criminal proceedings, the Fiji rule does not. Nevertheless criminal contempts in civil proceedings (as was held in Vijaya Parmanandam v. Attorney-General – Appeals 13 and 19 of 1972) fall within the rule. This is a matter which appears to have caused some confusion and we thing it appropriate to quote from the speech of Lord Diplock in Attorney v. Times Newspapers Ltd. [1973] 3 All E.R. and “criminal” contempts. He said –

“One may leave aside the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the Court made on him in that action. This is classified as a ‘civil contempt’. The order is made at the request and for the sole benefit of the other party to the civil action.

All other contempts of course are classified as ‘criminal contempts’, the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens. This is because it is the public interest in the due administration of justice, civil as well as criminal, in the established courts of law that it is sought to protect by making those who commit criminal contempts of court subject to summary punishment.”

It is quite clear that the contempt for which Williams J. issued his summons in the present case fell into the category of “criminal contempt”. There was no question of disobedience to an order by any person. It was also clearly a contempt which fell within Order 52, as applied to Fiji, in that it was “committed in connection with civil proceedings in an inferior court” within rule 2(a)(ii). The procedure laid down in Order 52 could therefore have been utilised by an appropriate party.

This procedural reference is not complete without mention of the question of appeal to this court. This is necessary in view of the fact that (as Lord Diplock mentioned at page 72 of the report of Attorney-General v. Times Newspapers Ltd.) until the passing in English of the Administration of Justice Act, 1960, there was no appeal in cases of criminal attempt. That Act does not take effect in Fiji and the power of this court to entertain such an appeal must flow from the Court of Appeal Ordinance (Cap.8). To put the matter very briefly, that Ordinance gives power to entertain an appeal in civil proceedings against any “decision” of the Supreme Court (R.12) and in criminal proceedings, appeals by persons convicted on a trial in the Supreme Court. In the case of Vijaya Parmanandam v. Attorney-General (supra) which was brought under the Order 52 procedure and was likewise an allegation of a “criminal” contempt, this court entertained and dealt with an appeal; in that case special leave to appeal further was refused by the Privy Council. We are satisfied that in cases to which Order 52 is intended to apply, an appeal to this court does lie, for these quasi-criminal matters are directed to be dealt with under civil procedure and it is right to regard the orders complained of as “decisions” of the Supreme Court, on the civil side. We need express no view on cases which do not fall within the ambit of Order 52. Mr Flower, for the Attorney-General took no point that we lacked jurisdiction, and we held accordingly that an appeal doe lie, although the Order 52 procedure was not actually employed.

In attacking the learned judge’s order, Mr Koya made it clear at the outset, that he did not propose to go into the facts with a view to establishing that there had been no contempt. He conceded that the fullest disclosure of all material facts by the appellant to the Magistrate on the application was called for. By implication at least, and Mr. Koya certainly presented no argument to the contrary, this meant that it was conceded that the facts accepted by Williams J., if properly established and brought before him by the correct procedure, would justify his finding that there had been contempt of court on the part of the appellant. We do not need, therefore, to discuss this question at any length, but some brief reference is appropriate.

We have already set out the formulation of the charge as it appeared in the summons. In his judgment Williams J. said –

“I felt that Mr Gordon’s behaviour amounted to contempt in that –

(a) he undertook to withdraw the Supreme Court action when he had no reason to believe that he could do so;

(b) thereby causing the Senior Magistrate to assume a jurisdiction he did not possess;

(c) he failed in his undertaking to withdraw the Supreme Court action;

(d) he deceived the magistrate into believing the grounds rejected by the Supreme Court had been re-drafted more adequately and would have been represented to the Supreme Court were it no too late to reapply;

(a) it was a shocking abuse of court process to obtain a warrant of arrest by resorting to such means, especially when it was an application which had already been refused.

He succeeded in obtaining a warrant of arrest which the magistrate had no jurisdiction to issue and caused the magistrate to overrule the Supreme Court’s order refusing the warrant.” Towards the end of his judgment the learned judge said – “I am satisfied beyond doubt that Mr. Gordon is guilty of contempt,” and, although it is not there specifically so stated, it is to be taken from his earlier references that he referred to the variety of contempt consisting of abuse of court propose. For example he said – “ Nevertheless it is contempt to move the court to issue process by means of deception”. Cases of deception of a court upon which the learned judge relied were a case in 1586, No. 5 at [1682] EngR 76; 75 E.R. 974 (a matter of process for arrest being issued in two courts at the same time) Bishop v. Willis [1842] EngR 494; (1749) 49 E.R. 508 (a solicitor signing counsel’s name to an answer without his authority); Linwood v. Andrews (1888) 58 L.T. 612 (a barrister conspiring to induce a person to make affidavits to be used to delude the court); Smith v. Bond (1845) 14 L.J.N.S. Ex. 114 and R.v. Weisz [1951] 2 K.B. 611 (acception by framing a civil claim to recover gambling debts as an account stated.) We need to say only that we agree that deception of a court by a barrister and solicitor for the purpose of obtaining process against a debtor amounts to contempt and is punishable as such.

Mr. Koya’s argument under Ground (a) was that a judge of the Supreme Court is not an investigating officer or a witness. His duty is to administer – not to initiate proceedings. Order 52 of the Supreme Court Rules was provided for such a purpose. Williams J. should have brought the matter to the attention of the Attorney-General or the Law Society. Mr. Koya’s submission went so far as the claim that, except for contempt in the face of the court, a judge has now no jurisdiction to deal with contempt of his own motion, but is confined to such matters as are put before him under Order 52.

There is no support for this in the authorities. In the first place Order 52 rule 5 provides that nothing in the foregoing provisions of the Order shall be taken as affecting the power of the Supreme Court to make an order of committal of its own motion against a person guilty of contempt of court. This is a complete denial of any restriction being imposed upon the court’s inherent jurisdiction to commit of its own motion and there is no reason to restrict the effect of the rule to contempts in the fact of the court. Cases referred to in the notes to rule 5 in the Annual Practice 1967 include Warwick Corporation v. Russel [1964] 1 W.L.R. 613 which appears to have involved a civil contempt. In a very urgent case the court made an order, not of its own motion, but on an ex parte application. Another ex parte motion was acted upon in Hipgrave v. Hipgrave [1962] P.91, and this was again a civil contempt.

Main reliance was placed by Mr Koya upon a passage in the speech of Lord Diplock in Attorney-General v. Times Newspaper Ltd. (supra) at page 74 –

“My Lords, it will I believe have been apparent from what I have already said that, unlike the Court of Appeal, so far from criticizing I commend the practice which has been adopted since 1954 as a result of the observations of Lord Goddard CJ in R. v. Hargreaves, ex parte Dill, whereby the Attorney-General accepts the responsibility of receiving complaints of alleged contempt of court from parties to litigation and of making an application in his official capacity for committal of the offender if he thinks this course to be justified in the public interest. He is the appropriate public officer to represent the public interest in the administration of justice. In doing so he acts in constitutional theory on behalf of the Crown as the fountain of justice and not in the exercise of its executive functions..”

The case of R. v. Hargroaves, ex parte Dill [1954] Crim. L.R. 54, mentioned in that passage, is referred to in 8 Halsbury’s Laws of English (3^rd Edn.) page 11 note (u) as follows – “in the last mentioned case Lord Goddard C. J., intimated that it would be ‘a good thing if such motions were made on the application of the Attorney-General’. With respect, this merely means that a preference is expressed for motions for committal for contempt being brought by the Attorney General, instead of by one of the parties to the proceedings. At page 72 Lord Diplock said –

“ ..... but the practice of leaving it entirely to a party to the case in relation to which the contempt was committed to apply to the court for the summary remedy continued unchanged until 1953. There was no one charged with the responsibility for doing so as a matter of public duty. So in all except the most recent cases a few earlier cases where the court, exceptionally, acted of its own motion, all applications for committal for contempt of court were made by a party to the particular litigation in relation to which the contempt was alleged to have been committed.”

and at page 75.

“Where complaint is made to the Attorney-General of an alleged contempt in deciding whether to move the court for committal of the contemnor he is concerned, not with whether the conduct is a technical contempt but whether it falls into the category of contempts which the court would regard as deserving of some punishment. Since this involves anticipating the way in which the court would exercise its own wide discretion, there is clearly a considerable field for the exercise of his personal judgment. If he himself declines to move, the party complaining can bring the motion on his own behalf.

Precisely the same view was expressed by Barrowclough C. J., giving the judgment of a Full Court in New Zealand, in Adams v. Walsh [1963] N.Z.L.R. 158.

We fully agree that motions under Order 52 in certain cases, and probably the majority of cases, are better brought by the Attorney-General then by private litigants. That is not to say, however, that Order 52 takes away rights of the Court to move summarily and ex more motu.”

There are cases, though not many in which a procedure akin to that adopted by Williams J. was followed, though the contempt was not in the fact of the court. One such is Henry Wallace (1866) 1 L.R.P.C. 283 in which a letter, the subject matter of the contempt, was written to a judge. The Supreme Court of Nova Scotia acted on its own motion and drew up a rule calling upon the appellant to show cause. The appellant appeared in person, having filed an affidavit. The Supreme Court made the rule absolute. The appeal to the Privy Council was heard ex parte as the judges announced they would not appear. The Privy Council agreed that there was a contempt of court “which it was hardly possible for the court to omit taking cognizance of”. There was no criticism of the Supreme Court acting on its own motion (i.e. it was not moved by any member of the bar) though the order was discharged on the ground that an inappropriate penalty had been imposed.

McDermott v. Judges of British Guiana (1868) v. Moore N.S. 466; [1868] EngR 27; 16 E.R. 590 was a case of publication of a newspaper article. The publisher was summoned to attend court by an order signed by the Chief Justice. The appellant objected to the proceedings and refused to show cause; but in the Privy Council the merits were not dealt with as their Lordships refused jurisdiction. They said however that the committee had never entertained an “an appeal against such an order” where it appeared clearly on the face of the Order that the party had committed a contempt, that he had been duly summoned, and that the punishment awarded for the contempt was an appropriate one.” There appears to have been no objection to the “summons” procedure. In other cases where there has been reference to jurisdiction to act upon summary process e.g. R. v. Gray [1990] 2 Q.B. 36 and The King v. Davies [1905] UKLawRpKQB 174; [1906] 1 K.B. 32, the court has been moved by a litigant or by the Attorney-General and “summary process” is used in contrast with procedure on indictment or information.

However, we are satisfied on the authorities we have mentioned, including the two cases from Australia, that Williams J. was entitled to act, as he did, ex mero motu.

On the same ground of appeal Mr. Koya also sought to place some reliance upon the doctrine of the separation of powers. The initiation of proceedings is not a judicial function, he submitted, but an encroachment upon the functions of the executive.

In Madhavan v. Falvey and others, Civil Appeal No. 39 of 1973, this court refrained from expressing any opinion on the question whether the doctrine of the separation of powers applied in Fiji. Nor do we need to do so now. Even assuming that it did, the powers of the courts are so well established in the matter of contempt that, whether by way of exception to the doctrine or otherwise, they are clearly unaffected by it. By virtue of section 18 of the Supreme Court Ordinance (Cap.9) the Supreme Court has all the jurisdiction of the High Court of Justice in England. More particularly relevant to this case is section 6 of the Magistrate’s Courts Ordinance (Cap. 10) which provides –

“6. The Supreme Court shall have the same power to deal with cases of contempt of its authority as the High Court of Justice in England, and such power shall extend to the upholding of the authority of Magistrates’ Courts.”

Under that section, as well as by assimilation under section 18 of the power of the Court of King’s Bench in relation to inferior courts (as to which see The King v. Davies [1905] UKLawRpKQB 174; [1906] 1 K. B. 32) the Supreme Court has full power to deal with all cases of contempt, and the doctrine mentioned can have no application. We would draw attention also to the opinion of Lord Diplock already quoted (Attorney-General v. Times Newspaper Ltd. – p.74) that even the Attorney-General, acting under Order 52, acts (like the judges themselves) on behalf of the Crown as “the fountain of justice” and not in the exercise of its executive functions.

In our judgment the appeal cannot succeed under Ground (a).

Under Ground (b) it was submitted that Williams J. was no longer in a position to give an appearance of impartiality and the ordinary rules of natural justice were thereby infringed. This was because the learned judge was in the position of a party to the proceedings. The requirement of a “fair hearing” is embodied in Article 10 of the Constitution. We do not think this is of any real assistance to the appellant. Certainly the learned judge was required to observe natural justice, just as a judge who is trying a contempt in face of the court is so required. Up to a point this case closely resembles contempt in face of the court. The facts were that the appellant made an unsuccessful application to Williams J. for the arrest of a defendant to an action for money lent. The claim for money lent was shown by an affidavit of the Plaintiff himself read by Williams J. for the arrest of a defendant to an action for money lent. The claim for money lent was shown by an affidavit of the Plaintiff himself read by Williams J., to be a false claim. Appellant, knowing such falsity, repeated the claim in an identical action issues in the Magistrate’s Court later the same day. The action in the Supreme Court was still pending. The next day appellant succeeded in obtaining a warrant from the Magistrate for the arrest of the defendant. The result was, as Williams J. said, appellant, by the repetition of a claim for money lend which appellant knew to be false, succeeded, in effect, in causing an inferior court to overturn a judgment of the Supreme Court. Upon this coming to the knowledge of Williams J. he was rightly concerned to inquire whether contempt had been committed either of the Supreme Court’s jurisdiction or of that of the Magistrate’s Court in bringing about such a starting result. The jurisdiction of the Supreme Court ought to be protected against contemptuous proceedings being brought in an inferior court to overrule interim judgments, particularly when the Supreme Court is still seized with jurisdiction in an action for the same subject matter. In proceedings under Order 52, the evidence is by affidavit. In proceedings by the court ex mere motu, natural justice we think is satisfied if the person accused is made fully aware of the allegations against him and is given full opportunity to reply and call any evidence of his own. As the Lord Chancellor queried in The Matter of a Special Reference From the Bahama Islands [1892] UKLawRpAC 50; [1893] A.C. 138 at 146 –

“Can you refer us to any authority for importing into a case against an individual, any matter which was not put in against him or brought to his knowledge, or in process before the judgment was pronounced?”

This indicates that this ground should be taken with Ground (c) relating to the lack of evidence to sustain the learned judge’s finding. However desirable it may be in some cases that contempt proceedings should be heard by a judge who has had no connection with what has gone before (and desirability may not coincide with practicability) we cannot find that the lack of such an arrangement provides a good ground of appeal as a breach of natural justice, unless some defect prejudicial to the person accused has arisen thereby.

Under Ground (c) the most important item for discussion is probably the question of the magisterial record. Mr. Koya points out that although a new copy of it (with other documents) was attached to the summons to show cause, there is no indication of how Williams J. acquired it. It was not annexed to an affidavit to verify it. In Mr. Koya’s submission it must be assumed to have been acquired by some administrative process. Mr Koya very properly adds that there is no claim that the appellant was misled in any way. We agree that there is no indication of how the record of the Magistrate’s Court was acquired but have no doubt that the Supreme Court had power to acquire it. We have already touched on this topic but would here quote from R. v. Davies (supra) at pp. 42-43–

“They were not the custodies morum (to use Hawkins’ phrase) in any sense analogous to that which the phrase bears when applied to the King’s Bench, whose peculiar function it was to exercise superintendence over the inferior Courts and confine them to their proper duties. This, however, as it seems to us, was only one exercise of the duty of seeing that they did impartial justice, any if and when the attainment of that end required that the misdeeds of others should be corrected as well as the misfeasances of the inferior Courts themselves, it seems to us that it is no departure from principle, but only its legitimate application to a new state of things, if others whose conduct tends to prevent the due performance of their duties by those Courts have to be corrected as well as the Courts themselves.”

We have quoted already section 6 of the Magistrates’ Courts Ordinance but would also refer to section 98(1) of the Fiji Constitution –

“98 (1) The Supreme Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.”

In our view the paternal jurisdiction of the Supreme Court is undeniable and it must have the authority to take all necessary steps to fulfil its function. The notes proposed to be relied upon were forwarded to the appellant and he could and did comment on them. They were put in against him or brought to his knowledge within the meaning of the words quoted from the Bahama Islands case.

Mr. Koya also referred to the judgment of Williams J. at the point where he said he had perused the file in C.A. 139/73: it was submitted that that was not permissible. We do not agree with that. The record was one of a case upon which the appellant relied heavily in his affidavit and it was part of the Supreme Court records. We think that Williams J. was entitled to check the weight of the appellant’s submission and in fact he verified the appellant’s claim, but without advantage to the appellant.

In our judgment the appeal must be dismissed. The Attorney-General made no application for any order for costs and there will accordingly be no order.

We feel we should not part with the case without expressing some surprise that this rather exceptional procedure should have been preferred. The learned judge said the Law Society had been fully informed, but it can only be a matter of speculation whether that means that the Court had referred the matter to the Council, as it had power to do, under section 60 of the Legal Practitioners Ordinance (Cap. 228). The learned judge also indicated that he was hesitant to overburden, the few experienced members of the Legal Department (presumably by referring the matter to the Attorney-General to consider action under Order 52 of the Rules of the Supreme Court). We consider it desirable to observe generally that where the alleged contempt is not in the face of the Court, the procedure under Order 52 should be regarded as normal and desirable, unless there are cogent reasons for preferring another course.

T. J. Gould

Vice-President

Charles C. Marsack

Judge of Appeal

T. Henry

Judge of Appeal